Brevik v. Brevik, A12-2242
| Decision Date | 07 October 2013 |
| Docket Number | A12-2242 |
| Parties | In re the Marriage of: Amy Lynn Brevik, n/k/a Amy Lynn Ashbaugh, petitioner, Respondent, v. Scott Allan Brevik, Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
Affirmed
Clay County District Court
Amy Lynn Ashbaugh, Pine Island, Minnesota (pro se respondent)
Christopher E. Brevik, Brevik Law, Anoka, Minnesota (for appellant)
Considered and decided by Hudson, Presiding Judge; Ross, Judge; and Schellhas, Judge.
UNPUBLISHED OPINION
Appellant argues that (1) the district court erred in determining the parties' incomes and establishing appellant's child-support obligation; (2) the district court erred by not providing appellant advance notice of its intent to address a pending contemptissue at a hearing on July 25, 2012; (3) the findings in the district court's orders of August 30, 2011, and October 17, 2012, regarding the children's uninsured medical expenses, insurance premiums, and child-care expenses, are not based on sufficient evidence in the record; and (4) the district court erred by modifying appellant's parenting time after permitting respondent's relocation within the State of Minnesota. We affirm.
Appellant-father Scott Brevik and respondent-mother Amy Ashbaugh married in 2003 and are the parents of two children: T.B., born in 2003, and M.B., born in 2004. The factual background of this protracted and contentious family dispute is set forth in this court's opinion in Brevik v. Brevik, No. A10-761, 2011 WL 1364274, at *1 (Minn. App. Apr. 12, 2011), review denied (Minn. June 14, 2011), and we will restate only the facts pertinent to this appeal. In the dissolution judgment in August 2009, the district court granted mother sole legal and physical custody of the children, subject to father's right to "reasonable and liberal parenting time," and ordered the parties to split the cost of the children's medical insurance, all uninsured or underinsured medical costs, and child-care expenses, with mother to pay 53% and father to pay 47%. The court ordered each party to provide the other with written documentation at the time of any reimbursement request.
Father appealed the district court's dissolution judgment to this court, raising numerous issues, and this court affirmed it on all grounds. Brevik, No. A10-761, 2011 WL 1364274, at *2, *7. Since the dissolution judgment, both parties have moved the district court for relief on numerous occasions. Father presently appeals from four orders.
Mother moved the district court for permission to relocate the children's residence, and, on July 25, 2012, a different district court judge heard mother's motion and also revisited the issue of father's contempt. On August 21, 2012, the court granted mother permission to relocate the children's residence from Moorhead to Rochester. Because of that relocation, the court modified father's parenting time. Father challenges the court's modification of his parenting time insofar as it reduced his parenting time.
On October 17, 2012, the district court denied mother's contempt motion and again found that father owes mother $5,341.29 for his 47% "share of the medical and dental expenses" and entered a judgment against father in that amount. Father appeals the district court's order and entry of judgment on October 17, 2012, arguing that the district court violated his right to due process and that the district court's finding that he owes mother $5,341.29 is erroneous.
In September 2010, father moved the district court for modification of his parenting time, modification of his child-support obligation, and attorney fees. The district court stayed the proceedings, pending this court's resolution of father's appeal from the dissolution judgment. In August 2011, father again moved the court for the relief requested in his September 2010 motion, and father requested that the court modify his child-support obligation retroactive to September 1, 2010.
On January 24, 2012, the district court issued a 32-page order, reducing father's child-support obligation by an amount less than that which father requested. The court's detailed order reflects a thorough and painstaking review of the parties' submissions. For the period between September 1, 2010, and August 31, 2011, applying what is now Minn. Stat. § 518A.39, subd. 2(a)(1) (2012), the district court found that the "evidence . . . indicate[d] that [both parents] . . . experienced two significant changes in income since [father] first filed his motion on September 1, 2010."1 The court therefore granted father's motion to reduce his child-support obligation but reduced the obligation to an amount higher than father requested.
On appeal, father argues that the district court's modification of his child-support obligation constitutes an abuse of discretion because the modification is based on the court's erroneous determination of mother's income and erroneous imputation of income to father. An appellate court "[g]enerally . . . review[s] orders modifying child support for abuse of discretion and will reverse only if the district court abused its broad discretion by reaching a clearly erroneous conclusion that is against logic and the facts on record." Haefele v. Haefele, __ N.W.2d __, __, 2013 WL 2320039, at *4 (quotation and citation omitted). "The district court's determination of net income must be based in fact and it will not be overturned unless it is clearly erroneous." Schisel v. Schisel, 762 N.W.2d 265, 272 (Minn. App. 2009) ().
The dissolution judgment states that father was "voluntarily underemployed and/or employed on a less than full-time basis," and the dissolution court therefore imputed income to father of $22,620 per year "from August 2009 and in the future," establishing father's child-support obligation at $462 per month. In considering father's modification motion, the district court considered "two relevant periods": "between September 1, 2010, and August 31, 2011," and "after September 1, 2011."
For this period, the district court determined that mother's gross annual income was $45,425 ($40,000 from employment as a full-time faculty member at a college and $5,425 from work at a summer language camp), giving mother a monthly parental income for determining child support (PICS) of $3,785, and father's gross annual income was $27,015, giving him a PICS of $2,251. Based on those income amounts, the court determined that father's basic child-support obligation for the period was $457 and that, because father had paid mother $462 during the time period, he was entitled to a $60 credit against his future child-support obligations for the overpayment made during the period of September 1, 2010, to August 31, 2011.
Father argues that the district court erred by not continuing to impute income to him in the annual amount of $22,620 through 2011. The district court estimated father'sincome for the period between September 1, 2010, and August 31, 2011, based on the following evidence that father submitted: father's 2010 income tax return; a report of father's wages paid during the period from January 1, 2011, to July 25, 2011, from his part-time newspaper-delivery position; a paystub from father's part-time auto-part sales position, reflecting wages paid during the period from January 1, 2011, to July 22, 2011; and father's handwritten estimate of his self-employment income from his karaoke business during the period from May 7, 2011, to July 31, 2011. Father argues that the court erred by applying its estimated income to the period between September 1, 2010, and October 31, 2010, because father did not begin his part-time auto-part sales position until November 2010. Father's argument is unpersuasive. The district court's calculations in its order show that the court averaged father's income for the period of September 1, 2010-August 31, 2011, which was within the district court's discretion. See Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987) ().
Father also argues that the district court failed to consider his karaoke business expenses. Minnesota Statutes section 518A.30 (2012) provides that, for purposes of calculating gross income from self-employment or operation of a business in child-support cases, "income from self-employment or operation of a business . . . is defined as gross receipts minus costs of goods sold minus ordinary and necessary expenses required for self-employment or business operation." But, here, the district court noted that fatherdid not submit "any claim or documentation in support of any necessary and ordinary expenses associated with his self-employment as a disc jockey in 2011."
To support his argument that the district court erroneously determined his income, father relies on his 2011 income tax return. But father did not provide the court with his 2011 tax return before the court issued its order on January 24, 2012. Father's 2011 income tax return is outside the record, and we decline to consider it. See Minn. R. Civ. App. P. 110.01 (...
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