In re the Marriage of: Debra J. Hustoft, petitioner, Respondent, vs. David G. Hustoft, 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This opinion will be unpublished and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

A03-240

 

In re the Marriage of: Debra J. Hustoft, petitioner,
Respondent,
 
vs.
 
David G. Hustoft,
Appellant.

 

Filed November 4, 2003

Affirmed

Minge, Judge

 

Hennepin County District Court

File No. DC224023

 

David G. Hustoft, 829 Washington Street, Anoka, MN 55303 (pro se appellant)

 

Debra J. Hustoft, 8240 Brunswick Avenue North, Brooklyn Park, MN 55443 (pro se respondent)

 

            Considered and decided by Minge, Presiding Judge; Klaphake, Judge; and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N

 

MINGE, Judge

 

            Appellant husband challenges the orders of the child support magistrate granting a cost-of-living adjustment for child support and spousal maintenance.  Because the child support magistrate did not abuse her discretion in determining that appellant's income increased more than the cost-of-living adjustment, we affirm.

FACTS

 

The marriage of appellant David G. Hustoft and respondent Debra J. Hustoft was dissolved in 1996, and appellant was ordered to pay child support and maintenance.  Subsequent cost-of-living adjustments (COLA) increased both obligations.  In March of 2002, Hennepin County notified appellant that a 7.6% COLA increase would occur effective on May 1, 2002.  Appellant moved to stay the COLA.  After a hearing on appellant's motion, the child support magistrate (CSM) ordered that the COLA go into effect because appellant failed to establish that his income did not increase sufficiently to warrant the adjustment.  The CSM found that appellant's income increased between 11.79% and 22.82% in 2002, thus warranting a 7.6% COLA.

            Appellant filed motions for review and to correct clerical mistakes.  The CSM construed the motion to correct clerical mistakes as a motion for review because the changes requested by appellant were not clerical in nature, but rather substantive disagreements with the CSM's order.  Appellant's motions were denied on the grounds that appellant failed to establish that the prior order contained clerical errors and that the record supported the decision, and the CSM issued an affirming order.

            Appellant then filed one combined motion for review and to correct clerical mistakes in district court.  The district court stated that because the CSM previously granted appellant a substantive review, appellant's remedy was to seek review from the court of appeals.  Appellant appeals the calculation of income and COLA award.  Neither the respondent nor the county submitted briefs for this appeal.

D E C I S I O N

 

The standard of review of a CSM's decision is the same standard used to review a district court's decision.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  A district court has broad discretion to determine child support and maintenance.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  This discretion is abused if the district court's findings of fact are unsupported by the record.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn. 1997).  A reviewing court views "the record in the light most favorable to the judgment of the district court."  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  The district court's findings on net income will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous.   State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).  Findings of fact by the district court, "whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01.  A determination by the district court is clearly erroneous when it is "against the logic and facts on the record."  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

COLAs are governed by Minnesota statute and generally occur every two years.  Minn. Stat. § 518.641 (2002); McClenahan v. Warner, 461 N.W.2d 509, 511 (Minn. App. 1990).  Upon notice of the impending COLA, an obligor may request a hearing to determine if the COLA should not take effect.  Minn. Stat § 518.641, subd. 2.  The obligor bears the burden of showing why the presumptively applicable COLA should not take effect.  Huizinga v. Huizinga, 529 N.W.2d 512, 514 (Minn. App. 1995) (citing Braatz v. Braatz, 489 N.W.2d 262, 165 (Minn. App. 1992)).  Under the statute, the obligor must show an "insufficient . . . increase in income" that "prevents fulfillment of the adjusted . . . obligation."  Minn. Stat § 518.641, subd. 3.  It is within the district court's discretion to waive the COLA if the court makes an "express finding that the obligor's income or occupation does not provide for a cost-of-living increase."  Blomgren v. Blomgren, 367 N.W.2d 918, 921 (Minn. App. 1985).

Appellant argues that the CSM abused its discretion by ordering a 7.6% COLA increase.  Appellant's 2000 net income was $38,269.13.  The CSM made two express findings regarding appellant's 2002 net income, which produced an increase in income ranging between 22.82% and 11.79%.  The 22.82% finding assumed $42,203.20 of net earned income based on a 40 hours-per-week status and $4,800 of rental income, for a total net income of $47,000.32.  The second finding assumed $37,982.88 of earned income based on a reduced hourly wage income for 36 hours per week, $4,800 of rental income, and no unemployment compensation, which produced a net income of $42,782.88.  This second calculation reflects an 11.79% increase in net income.

First, appellant claims that his hourly wage income should have been $38,588.  Appellant's figure of $38,588 is higher than the CSM's finding of reduced hourly wage income, which was $37,982.88.  In arguing that an overstatement of his hourly wages had occurred, appellant ignores the fact that two separate findings were made by the CSM, producing a range of possible incomes, and that both numbers were considered in determining the COLA increase.  In arguing that the CSM overstated his hourly wage income, appellant appears to only consider the calculation that represents the top of the range of hourly wage income at $42,203.20.  In other words, appellant argues for a finding of income that fits squarely within the income range identified by the CSM.  As a result, the CSM's findings regarding appellant's hourly wage income were not clearly erroneous.

Second, appellant argues that the CSM overstated his rental income.  The CSM found that this income was new income after the year 2000, that appellant had two rental rooms that he had rented for $400 per month each, and that after expenses and vacancies, the net rental income was $400 per month or $4,800 per year.  Appellant argued that his rental expenses completely offset any rental income received.  The CSM found it illogical for appellant to maintain one to two renters if there was no economical benefit.  The CSM noted that appellant provided no verification of his assertion regarding rental expenses.  Appellant did submit a 2001 Schedule E federal tax form showing $6,600 in rents received and exactly $6,600 in expenses incurred.  But the relevant income determination that appellant is challenging is for 2002, not 2001.  Additionally, the court of appeals must give due regard to the district court's ability to judge the credibility of the witnesses and the evidence.  Minn. R. Civ. P. 52.01.  Here, appellant's own testimony appears to provide a factual basis for finding a gross rental income of more than $400 a month and, absent any verification of rental expenses for 2002, the CSM did not find credible appellant's claim that his rental income was completely offset by rental expenses.  Although appellant claims that the second room was frequently vacant, the CSM does not appear to attribute substantial income to the second room.

Because there is evidence in the record that appellant received more than $400 per month gross rental income, and because appellant failed to produce any verification of rental expenses, the CSM's findings regarding appellant's rental income were not clearly erroneous.   

Lastly, appellant argues that the CSM abused its discretion in ordering the COLA to appellant's support obligations.  For reasons set forth in considering the wage and rental determinations, we find this argument without merit. 

Affirmed.