Rachele T. Gunter, petitioner, Appellant, vs. Steven A. Gunter, Respondent.

Rachele T. Gunter, petitioner, Appellant, vs. Steven A. Gunter, Respondent. A04-2114, Court of Appeals Unpublished, December 6, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2114

 

Rachele T. Gunter, petitioner,

Appellant,

 

vs.

 

Steven A. Gunter,

Respondent.

 

 

Filed December 6, 2005

Affirmed in part, reversed in part, and remanded

Toussaint, Chief Judge

 

Dakota County District Court

File No. F3-99-06882

    Ronald B. Sieloff, Yankee Square Office III, Suite 214, 3460 Washington Drive, Eagan, MN 55122 (for appellant)

 

Tim D. Wermager, P.O. Box 6, 906 Vermillion Street, Hastings, MN 55033 (for respondent)

 

          Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

 

TOUSSAINT, Chief Judge

 

          In this post-dissolution proceeding, appellant challenges the district court's exclusion of respondent's extra income from the child support calculation, its failure to deduct an insurance premium from its calculation of her net monthly income, its imputation to her of income for the summer months when she does not work, and its refusal to admit updated evidence of her financial situation. Because we see no error in the exclusion of extra income and the failure to deduct the insurance premium and no abuse of discretion in the refusal to admit appellant's evidence, we affirm those determinations; because the imputation of income for the summer months was error, we reverse that determination and remand for recalculation of the parties' child support obligations.

D E C I S I O N

            Appellant Rachele Gunter and respondent Steven Gunter were married in 1987.  They are the parents of J., 14, L., 12, and N., 9.  The parties separated in 1998 and their marriage was dissolved in 1999.  They stipulated to joint physical custody of their children and to child support payments based on each party's base pay: the net result was that respondent paid appellant $285 monthly. 

            After losing her part-time job in 2001, appellant moved to establish spousal maintenance and to increase child support.  In 2002, the district court granted her motion.  In 2003, after appellant had begun another part-time job and in response to both parties' motions, the district court increased respondent's parenting time and decreased his child support obligation. 

            That decision was appealed, and this court, in Gunter v. Gunter, No. A03-352 (Minn. App. Jan. 27, 2004), remanded the child support award for calculation of each party's net income and a determination of whether there had been a change in circumstances.  On remand, the district court found that there had been a change in circumstances and set respondent's child support payment at $400.  Appellant's motion for reconsideration was denied, and she appeals. 

            Appellant challenges the failure to include respondent's income other than base pay as income for child support purposes, the failure to deduct her medical insurance premium from her net income, the imputation to her of income during the summer months, and the exclusion of evidence on her earnings and deductions.[1]

I.

Respondent's Excess Income

            Whether a source of funds is income for child support purposes is a legal question reviewed de novo.  Sherburne County Soc. Servs. v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992).   

            In their marital termination agreement, the parties used only base pay in calculating child support.  This resulted in excluding 25% of appellant's income, because she earned $17,829, of which $4,424 was not base pay, and 13% of respondent's income, because he earned $51,600, of which $6,594, or 13%, was not base pay.  

            Since the agreement, respondent's ability to earn excess income has increased: in 2003, he earned $11,000 in excess pay; by July of 2004, he had earned $8,400.  Appellant argues first that respondent's excess income should be included in the child support calculation because the parties' agreement did not explicitly state that only base pay would be used to calculate child support.  But the agreement implicitly indicated that using only base pay was the parties' intention because it provided only base pay as income for both parties.  In an affidavit submitted in support of her motion to increase respondent's child-support obligation, appellant agreed that respondent's base pay was "how [h]is income was computed for child support purposes" in the original judgment.

            "A stipulation may be considered in child support cases because "it represents the parties' acquiescence in a settlement."  McNattin v. McNattin, 450 N.W.2d 169, 171 (Minn. App. 1990).   The parties here acquiesced in a settlement that excluded their non-base-pay income from child support.  We see no basis for reversing that provision of the settlement.

II.

Appellant's Medical Insurance Premium

            A determination of the amount of an obligor's income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  Appellant claims that the district court should have subtracted $334.49 from her gross monthly income for medical and dental insurance and that the finding that she "has not provided sufficient evidence of payment to allow a deduction for medical insurance premiums" is clearly erroneous.  But the only evidence appellant provided was a notice from her previous employer, for whom she had not worked since September 2001, telling her she would need to pay $334.49 for medical and dental insurance monthly if she wished to continue her benefits with that employer in 2003.  Appellant provided no evidence that she ever did pay $334.49 monthly.  Thus, the finding that the evidence was insufficient and the refusal to deduct $334.49 from appellant's gross monthly income were not clearly erroneous.

III.

Imputation of Income to Appellant

            A determination of the amount of an obligor's income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Id. If a court finds that an obligor is unemployed or underemployed, the court may impute income as the basis for a calculation of child support.  Minn. Stat. § 518.55, subd. 5b(d) (2004).  "Imputed income" is an obligor's estimated earning ability based on prior earning history, education, and job skills, and on the availability of jobs within the community for a person with the obligor's qualifications.  Id.

            At the time of dissolution, the judgment based on the parties' agreement stated that appellant was "working approximately twenty (20) hours per week [for 52 weeks a year] at the rate of $12.89 per hour or a gross annual income of approximately $13,405.60 [$12.89 x 20 x 52]."  In 2002, appellant began her present school-year job, in which she worked 30 hours per week for 34.2 weeks per year at a rate of $10.45 an hour for a gross annual income of $10,721.70 ($10.45 x 30 x 34.2).  Assuming appellant had two weeks' paid vacation in her former job, she worked about 1000 hours per year (50 x 20).  In her present school-year job, she works 36 30-hour weeks per year, or 1026 hours (30 x 34.2).   Thus, the disparity between the number of hours appellant worked annually before the marriage and the number of hours she works annually now is minimal. The disparity in her income is due not to the number of hours she works but to the lower hourly wage for which she works. 

            But the district court relied not on appellant's lower wage but on its finding that she "is capable of working and earning income during the summer months but voluntarily elects not to do so" when it imputed to her income for the three summer months.  The record includes no support for the district court's inference that part-time summer jobs paying the amount appellant earns during the school year are available within her community for a person with her qualifications.  See id. ("availability of jobs within the community for an individual with the parent's qualifications" is one basis for estimating earning ability and imputing income).

            We therefore reverse the imputation of income to appellant and remand for recalculation of the parties' child support obligations.

IV.

Exclusion of Appellant's Evidence

            Absent an erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court's discretion.  Kroning v. State Farm Auto Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  On remand, both parties were asked to submit memoranda addressing the remanded issues.  In his memorandum, respondent asked for leave to submit updated financial information.  The district court issued an order granting this request, setting a date for the submission, and stating that no further motions would be considered.  A copy of the order was sent to appellant's counsel.  Respondent submitted updated information by the date set by the district court.  Using that information, the district court made findings as to the parties' net monthly incomes and issued an order setting child support.  Appellant then moved for reconsideration of the order and requested leave to provide updated information. She claims on appeal that the district court abused its discretion by not granting her motion for reconsideration and allowing her to submit updated information.

            In general, the rules of civil procedure do not authorize motions for reconsideration.  Welch v. Comm'r of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996).  While Minn. R. Gen. Pract. 115.11 notes that a court may grant express permission for a motion to reconsider upon a showing of compelling circumstances, appellant made no such showing.  Appellant offers no explanation for her failure to request leave to submit updated financial information either at the time she submitted her memorandum on the remanded issues or when she discovered that respondent had sought and been granted leave to submit updated information.  By not exercising her right to seek leave in a timely manner, she waived it.  See Illinois Farmers Ins.  Co. v. Glass Serv. Co., 683 N.W.2d 792, 798 (Minn. 2004) ("Waiver is the voluntary and intentional relinquishment of a known right.").  The district court did not abuse its discretion by denying appellant's motion for reconsideration and her request for leave to submit updated information.

            We affirm the exclusion of respondent's non-base-pay income, the exclusion of appellant's insurance premium, and the denial of appellant's motion for reconsideration; we reverse the imputation of income to appellant and remand for further proceedings in accord with this opinion.

            Affirmed in part, reversed in part, and remanded.

[1] Appellant argues that this court is obliged to apply heightened scrutiny when reviewing the district court's order because the district court adopted respondent's findings verbatim. But a district court's adoption of one party's findings is not reversible and is acceptable practice if the findings permit meaningful review. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  The findings here are adequate for meaningful review, and we see no basis for applying heightened scrutiny.