In re Beverly Ann Rohde, petitioner, Respondent, vs. David Lynn Rohde, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-100

In re Beverly Ann Rohde, petitioner,

Respondent,

vs.

David Lynn Rohde,

Appellant.

Filed November 4, 2003

Reversed and remanded

Toussaint, Chief Judge

Wright County District Court

File No. F6012669

Kimberly Ann Larson, 830 W. St. Germain Street, Suite 300, P.O. Box 886, St. Cloud, MN 56302 (for respondent)

Brian M. Olsen, Tower Center Mall, P.O. Box 988, Cokato, MN 55321 (for appellant)

Considered and decided by Wright, Presiding Judge; Toussaint, Chief Judge; and Anderson, Judge.

TOUSSAINT, Chief Judge

On direct appeal from default judgment, appellant-father claims that the district court erred (1) in granting respondent-mother's motion for default when appellant's counsel "appeared" on appellant's behalf and (2) in calculating appellant's child support without considering evidence of unemployment compensation in the record.  Because the district court failed to consider documentation of appellant's unemployment compensation, we reverse and remand for further proceedings.

On December 2, 2002, the district court granted respondent Beverly Rohde's motion for default when appellant David Rohde failed to appear at the parties' scheduled dissolution-of-marriage court trial. This sanction was imposed after appellant's repeated failure to appear at court proceedings, and to cooperate with court-ordered evaluations.  The matter proceeded by default despite the presence of appellants counsel.

At the default hearing, the district court heard testimony from Phyllis Wohlferd, a Wright County Human Services Child Support Officer, concerning appellant's child support obligations.  Wohlferd testified that appellant failed to cooperate with the county's request for income information, to which it was entitled because respondent received public assistance to support their children in appellant's absence.  Without such information, Wohlferd testified, the county was forced to determine appellant's child support with the records available to it. 

The most recent documentation available, according to Wohlferd, was appellant's 2000 tax return.  She testified that the county had access to the Department of Economic Security's income database, but the database revealed no employment records for appellant in the past two years.  Thus, using appellant's 2000 tax records, the county determined that appellant's gross monthly income was $3,730.  And using the guidelines provided in Minn. Stat. § 518.551, subd. 5 (2002), it was determined that appellant's proper child support obligation was $948 per month.

            The district court entered default judgment on January 16, 2003.  In its findings of fact, the court accepted Wright County's child support calculations, and considered appellant's 2000 tax record the best available record at the time of trial.  The court then determined that appellant should be obligated to pay $948 per month in child support on an on-going basis.  This direct appeal followed.

D E C I S I O N

Appellant seeks review directly from the default judgment, having made no post-trial motion to vacate.  This court has long held, however, that "the appropriate method to seek review in a marriage dissolution proceeding is to move the trial court for relief under Minn. Stat. § 518.145."  Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493 (Minn. App. 1995); see also Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) (noting that if appellant had filed a motion to vacate, he would have been able to submit a proposed answer fortified by affidavits, thereby preserving the issues appellant was trying to raise on appeal).  When a party fails to move the district court for relief, our review is limited to whether the evidence on record supports the findings of fact and whether the findings support the conclusions of law set forth by the court.  Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993), superceded by statute on other grounds Minn. Stat. § 518.551, subd. 5b(d).

Appellant argues that the district court erred in strictly adhering to the county's child support recommendations.  He asserts that the court failed to consider the entire economic security database record, presented at the default hearing, indicating he received unemployment benefits after May 2001.

The Minnesota Statutes provide that a district court must determine child support based on income documentation provided by the parties to the dissolution.  Minn. Stat. § 518.551, subd. 5b(a) (2002).  Should a party fail to provide such documentation, the district court must make its determination based on "credible evidence."  Minn. Stat. § 518.551, subd. 5b(c).  Such "credible evidence" includes documentation of recent income, testimony of the other parent, and wage reports filed with the department of economic security.  Id.

Here, after appellant failed to provide any employment documentation, the district court relied exclusively on Wohlferd's testimony to determine child support.  Thus, based on appellant's 2000 tax filings, the court determined that appellant had the ability to pay $948 per month.  This determination was made, however, without acknowledging economic security records in the district court file showing appellant's $331-per-month unemployment compensation between May 2001 and March 2002. 

We find this omission substantial.  In Darcy v. Darcy, this court held that a district court may consider an obligor's prior income to determine the obligor's current ability to pay support.  455 N.W.2d 518, 522 (Minn. App. 1990).  We cautioned, however, against the district court making such determinations "in a vacuum."  Id.  Instead, the court must consider the "totality of the circumstances," and determine child support as equity demands.  Id.

Though appellant's employment records are sparse, the record clearly indicates that appellant received monthly unemployment compensation in an amount that was approximately one-third the amount the district court determined appellant was able to pay in child support.  The district court provided no findings that appellant was voluntarily unemployed or underemployed, or that he was receiving compensation from other sources.   See Minn. Stat. § 518.551, subd. 5b(d).  As such, we hold that the record cannot support the district court's child support determinations, and reverse and remand for further consideration.

Appellant also raises a number of issues that were not before the district court.  An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence below.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  We therefore decline to address these additional issues.  Further, because we are remanding, we need not address appellant's non-appearance issue.

Reversed and remanded.