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In re Marriage of Boyer

Court of Appeals of Minnesota

May 28, 2013

In re the Marriage of: Melodie Rae Boyer, n/k/a Melodie Rae, petitioner, Appellant,
v.
Paul Francis Boyer, Respondent.

UNPUBLISHED OPINION

Hennepin County District Court File No. 27FA000292864.

Melodie Rae Boyer, Excelsior, Minnesota (pro se appellant)

Roselyn J. Nordaune, Nordaune & Friesen, P.L.L.C., Wayzata, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and Stauber, Judge.

STAUBER, Judge

On appeal from a decision by the child support magistrate (CSM) modifying respondent-husband's child-support obligation, pro se appellant-mother argues that the CSM abused her discretion by (1) understating respondent's income for purposes of child support by failing to consider his company's retained earnings; (2) imputing income to her for purposes of calculating child support; (3) refusing to reopen a prior order; (4) denying her request for attorney fees; and (5) denying her request for an upward deviation in child support to account for the child's purported gifted needs. Appellant also seeks a determination from this court as to the amount of unpaid medical expenses owed by respondent. Respondent filed a notice of review challenging the CSM's calculation of his income for purposes of child support, and moved to strike portions of appellant's brief and appendix. We affirm and grant respondent's motion to strike in part and deny it in part.

FACTS

Appellant Melodie Rae Boyer and respondent Paul Francis Boyer were married in 1986, and had three children during their marriage. The parties' marriage was dissolved in December 2005 and, pursuant to the judgment and decree, the parties were awarded joint legal custody of their children, with appellant awarded sole physical custody of the two youngest children. Respondent was awarded sole physical custody of the oldest child.

At the time of the dissolution, appellant was a full-time homemaker and was not employed outside the home. Respondent was then employed by, and is still, a one-fourth owner of Boyer Building Corporation (BBC), a home-construction business owned equally by respondent and his three siblings. Respondent's annual income varies, and the district court found that respondent's income for the years 2002, 2003, and 2004 was $189, 508, $141, 003, and $261, 892, respectively, after pre-tax deductions. The district court found that the "parties have agreed that respondent shall pay child support of $1, 200 per month to [appellant for the two youngest children], beginning January 1, 2006, subject to biennial cost-of-living adjustments pursuant to Minn. Stat. § 518.641." The judgment and decree recognized that the support agreement "takes into consideration that respondent has physical custody of one of the three children of the parties and that [appellant] has a legal obligation for the support of [the oldest child]." Respondent was further ordered to pay 75% of the unreimbursed medical expenses for the children. Finally, respondent was ordered to pay spousal maintenance to appellant in the amount of $5, 000 per month for a period of 72 months, with the term and amount non-modifiable pursuant to a Karon waiver.[1]

In December 2008, the CSM modified respondent's child-support obligation following the emancipation of the parties' oldest child. After considering the parties' incomes, the CSM ordered respondent to pay $1, 416 per month in basic child support. Subsequent cost-of-living adjustments (COLA) increased respondent's basic child-support obligation to $1, 424 per month and spousal maintenance to $5, 030 per month.

In June 2011, respondent moved to modify his child-support obligation due to the emancipation of the parties' second child. Appellant brought a responsive motion seeking, inter alia, to (1) deny respondent's motions; (2) impute income to respondent in the amount of $12, 522.10 per month; (3) maintain respondent's child-support obligation of $1, 416 per month; (4) modify respondent's child-support obligation upward commencing January 1, 2012, upon termination of the spousal maintenance obligation; (5) require respondent to pay $200 per month for the remaining "child's gifted program"; (6) be awarded attorney's fees including fees for the December 2008 proceedings; (7) modify the individual parties' parental income for determining support; and (8) pay appellant for unreimbursed medical expenses of $672.60.

Following an evidentiary hearing, the CSM issued an order dated December 20, 2011, concluding that the second child's emancipation constituted a substantial change in circumstances warranting modification of the existing child-support obligation. The CSM then considered the parties' income for purposes of establishing child support. The CSM found that appellant "failed to establish a disability that prevents her from being fully employed." The CSM found that because appellant has no disabilities, she has "the ability to earn gross monthly income of $1, 884.00 based on full time employment."

The CSM also found respondent to have a monthly income of $15, 467.57 based upon respondent's average gross annual income from 2002 through 2008. In making this determination, the CSM rejected respondent's claim that his 2008 income was $147, 251 rather than $247, 251 because after receiving a year-end bonus of $182, 000, respondent and the other owners loaned back to the corporation $100, 000 in order to keep needed money in the business while reducing taxable corporate profit. The CSM noted that respondent received a 10% return on his loan to the corporation, which effectively meant that respondent was reinvesting his income. The CSM concluded that "the act of reinvestment does not convert income into non-income." Moreover, although the CSM found that respondent had income in 2009 and 2010 of $71, 179 and $87, 124, respectively, the CSM specifically "disregarded" this income. The CSM found that respondent received no bonuses for 2009 and 2010, and that his income for those years was "unjustifiably self-limited since significant retained earnings were kept in [BBC] without a legitimate business reason and was contrary to the asserted business practice."

Based upon the emancipation of the second child, and the parties' incomes as found by the CSM, the CSM reduced respondent's child support obligation to $1, 027 per month effective July 1, 2011, with an automatic increase to $1, 492 per month upon termination of respondent's spousal maintenance obligation. The CSM also concluded that the "child support obligation is sufficient to meet the joint child's needs including participation in gifted programming." The CSM further ordered that appellant "shall file an affidavit regarding attorney's fees regarding the present motion within thirty days of this order and a separate order will address the issue of attorney's fees." The parties' remaining motions were denied.

Both parties sought review of the CSM's order. By order dated March 7, 2012, the district court denied appellant's requests for review because the issues were "well within the discretion of the CSM." The district court, however, found that the "CSM's finding that respondent self-limited his income in 2009 and 2010 is not supported by the record." Thus, the district court remanded the matter to the CSM for a new calculation of respondent's income with direction to either use respondent's 2011 income or an average of respondent's income over a period of years that must include the years of 2009 and 2010. The district court also ...


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