Tammy Jo Arkell, n/k/a Arkell-Lund, Respondent, vs. Richard Donald Wieber, Appellant, and Stearns County, intervenor, Respondent.

Tammy Jo Arkell, n/k/a Arkell-Lund, Respondent, vs. Richard Donald Wieber, Appellant, and Stearns County, intervenor, Respondent. A06-1008, Court of Appeals Unpublished, June 5, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1008

 

Tammy Jo Arkell, n/k/a Arkell-Lund,
Respondent,
 
vs.
 
Richard Donald Wieber,
Appellant,
 
and
 
Stearns County, intervenor,
Respondent.

 

Filed June 5, 2007

Affirmed

Peterson, Judge

 

Stearns County District Court

File No. F3-0-93-51450

 

Tammy Jo Arkell-Lund, 1039 County Road 134, St. Cloud, MN  56303 (pro se respondent)

 

Glenn P. Bruder, Mitchell, Bruder & Johnson, 4005 West 65th Street, Suite 110, Edina, MN  55435 (for appellant)

 

Janelle P. Kendall, Stearns County Attorney, Richard J. May, Assistant County Attorney, 705 Courthouse Square, Administration Center, Room 448, St. Cloud, MN  56303 (for intervenor-respondent)

 

            Considered and decided by Lansing, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order modifying child support, appellant-father argues that (1) he rebutted the statutory presumption that the existing child-support award was unreasonable and unfair, and (2) the child-support magistrate failed to meaningfully consider father's subsequent children when considering whether to deviate from the child-support guidelines.  We affirm.

FACTS

 

            Appellant-father Richard Wieber and respondent-mother Tammy Jo Arkell-Lund are the parents of S.A.A., born in 1993.  The parties were never married.  A December 1996 order set father's monthly child-support obligation at $288, plus $16 for medical support.  By 2005, cost-of-living adjustments had increased father's monthly support obligation to $368. 

            On October 11, 2005, respondent-intervenor Stearns County moved to modify child support.  In a December 21, 2005 order issued following a hearing where mother and father both appeared without counsel, a child-support magistrate (CSM) ordered father to pay $747 per month in child support under the child-support guidelines.  Father filed a motion for review, and the district court remanded the matter to the CSM.  The CSM issued an amended order, which recalculated the parties' incomes and ordered father to pay $713 per month in child support under the guidelines.  This appeal from the amended order followed.

D E C I S I O N

            On appeal from a CSM's ruling, the standard of review is the same as it would be if the decision had been made by a district court.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn. App. 2002).  The district court has broad discretion to provide for the support of the parties' children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law.  Id. (stating court abuses discretion by setting support in a manner against logic and facts on record); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (stating court abuses discretion by improperly applying the law).  On appeal, a district court's findings of fact are not set aside unless clearly erroneous and a finding of net income is affirmed if it has a reasonable basis in fact.  Minn. R. Civ. P. 52.01 (findings of fact); Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (finding of net income).

I.

            Father acknowledges that his current circumstances raised the rebuttable presumption under Minn. Stat. § 518.64, subd. 2(b)(1) (2004), that the existing child-support award was unreasonable and unfair.  But father argues that he rebutted the presumption that the existing child-support award was unreasonable and unfair by noting his financial obligations to his two subsequent children. 

            "In determining whether the statutory presumption has been rebutted, the court must evaluate and make findings regarding the custodial parent's circumstances, the obligor's circumstances, and those of the children."  Johnson v. Johnson, 533 N.W.2d 859, 865 (Minn. App. 1995).  Father contends that the CSM's failure to make findings regarding the needs of his subsequent children and the expenses attributed to their support requires reversal.  But father cannot complain about a lack of findings when he failed to provide the information necessary to make those findings.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (applying this rule in maintenance context); Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (applying this rule in child-support context). 

            The record establishes that father failed to submit the financial statements requested by the county before the hearing.  By the date of the hearing, father had not provided mother or the county with any information, despite being notified that any documents that the parties intended to refer to "should be exchanged with all parties before the hearing."  At the hearing, father stated that he had not received the county's request, explained that he has two children from his current marriage, and submitted a list of his monthly expenses totaling $4,141 and presented copies of his monthly bills to confirm the amounts of his expenses.[1]  Father then stated, "I guess that would be it."

            After father responded to questions from the county's attorney, the CSM said to father, "Why don't you tell me what you want to say?"  Father then asked to have the parties' child covered by his health insurance, rather than mother's.  At the end of the hearing, the CSM again asked if there was "anything else" father would like to add, and father made a final statement.  The CSM left the record open for a week so that father could submit additional documentation, and father submitted tax returns and information regarding health and dental insurance.

            Contrary to father's claim, nothing in the record indicates that the CSM stopped father from saying anything or providing any relevant information.  Despite receiving notice and an opportunity to provide documentation, the only information that father submitted regarding his expenses was his expense list.

            The only monthly expenses on that list that are specifically attributed to the subsequent children are daycare of $320 ($650 in the summer months), sports costs of $150, and an education-savings-plan cost of $50.  The list does not specify what portion of shared expenses such as the mortgage, utilities, fuel, and food is attributable to the children.  Therefore, any lack of findings regarding the expenses attributed to the children is a result of father's failure to provide adequate information to support such findings.  Based on this record, father failed to rebut the presumption that the existing award was unreasonable and unfair.

II.

            Father argues that the CSM failed to meaningfully consider father's subsequent children in determining whether to deviate from the child-support guidelines amount.  See Minn. Stat. § 518.551, subds. 5(i) ("The guidelines in this subdivision are a rebuttable presumption and shall be used in all cases when establishing or modifying child support."), 5f (providing that obligor's subsequent children shall be considered in response to request by obligee for child-support increase) (2004).  The CSM stated that father's "subsequent children were considered in determining whether or not to deviate from the child support guidelines," but that father "provided no evidence for consideration to justify or support a deviation from guidelines support."  This court cannot assume that the CSM failed to discharge the duty to consider father's subsequent children, especially in light of the statement that the children were considered.  See Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (stating this court cannot assume that district court neglected its duty, erred, or abused its discretion).  Father has not shown that the CSM failed to consider the subsequent children.

            Father argues that the CSM's lack of findings under Minn. Stat. § 518.551, subd. 5f, requires a remand.  But that statute states the general rule that "[t]he needs of subsequent children shall not be factored into a support guidelines calculation" and then provides that "[i]n order to deviate from the support guidelines . . . to consider the needs of subsequent children," the district court must make specific findings regarding the obligor's income and expenses, the total needs of all of the obligor's children, and the needs of the child or children who are the subject of the support order.  Minn. Stat. § 518.551, subd. 5f.  Therefore, because the CSM did not deviate from the guidelines, the CSM was not required to make findings under the statute. 

            In determining whether to deviate from the guidelines, the CSM considered "the financial needs and resources, physical and emotional condition, and educational needs of the child" and the resources of the parties, as required under Minn. Stat. § 518.551, subd. 5(c) (2004).  After considering the relevant factors, the CSM determined that a deviation was not warranted, and that determination is supported by the record.  Although mother's significant other is sometimes referred to as a spouse in the record, the CSM found that mother was not married and that her significant other's income was irrelevant.  The CSM also found that both father's spouse and mother's significant other contribute to the expenses of their households.  And contrary to father's claim, mother did not request an increase in support solely for the child's college education; mother noted that in the next few years, the child's expenses will increase because he will be driving and because his clothes, activities, and school supplies are getting more expensive.

            Father argues that his monthly expenses exceed his income, while mother's income, including the previous child-support payment, exceeds her expenses.  Father contends that the new support order impoverishes his family, is a windfall for mother, and is against public policy.  But father cites no authority for the principle that an obligor whose expenses exceed his income is automatically entitled to a deviation from the child-support guidelines.  Father was notified when the first child-support order issued in 1996 that payment of child support "takes priority over payment of debts and other obligations" and that a "party who accepts additional obligations of support does so with full knowledge of the party's prior obligation."  Father has not shown any "unusual circumstances" that would justify an exception to the general rule of deference to his earliest support obligation.  See In re Paternity of J.M.V., 656 N.W.2d 558, 565 (Minn. App. 2003) (noting that younger children need not automatically be provided less support and that district court should determine whether any children have special needs or circumstances warranting consideration), review denied (Minn. Apr. 29, 2003). 

            Contrary to father's claim, the amended order does not indicate that the CSM was "annoyed" by the district court's remand.  Following remand, the CSM amended findings and corrected the calculations of both mother's and father's net income, which benefited   father by increasing mother's net monthly income from $2,297 to $2,411 and decreasing father's net monthly income from $2,988 to $2,852.  The CSM also amended the parties' proportionate shares of unreimbursed medical and dental expenses, reduced father's child-support obligation from $747 to $713, and eliminated father's monthly obligation for medical and dental insurance. 

            The CSM's determinations that father failed to rebut the presumption that the existing award was unreasonable and unfair and that the guidelines amount was appropriate are not against logic or the facts on the record and are not based on a misapplication of the law.  Therefore, we conclude that the CSM did not abuse its discretion when modifying father's child-support obligation. 

            Affirmed.

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The CSM accepted the list of father's monthly expenses without requiring the bills as confirmation, but the CSM allowed the attorney for Stearns County to ask questions about the expenses.