In re the Marriage of: Walter Stance Davis, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1511

In re the Marriage of: Walter Stance Davis, petitioner,
Appellant,

vs.

Regina Kay Davis,
Respondent.

Filed September 5, 2017
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-FA-09-2049

Walter S. Davis, Kodiak, Alaska (pro se appellant)

Amanda Porter, Porter Law Office, P.L.L.C., Bloomington, Minnesota (for respondent)

Considered and decided by Reilly, Pres iding Judge; Reyes, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant-husband challenges the district court’s denial of his motion to modify his
spousal-maintenance obligation, arguing that the district court abused its discretion
because husband demonstrated a substantial change in his income. We affirm.

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FACTS
Appellant-husband Walter Stance Davis and respondent-wife Regina Kay Davis
married in May 1985 and divorced in 2009 pursu ant to a stipulated judgment and decree
order (the judgment). Prior to the divorce, husband moved to Alaska for employment, and
he continues to live there. Under the judgmen t, the district court ordered husband to pay
$3,000 per month in permanent spousal maintenance with cost-of-living adjustments based
on husband’s gross annual sa lary of $96,698 and wife’s potential annual income of
$20,400.
From 2008 to September 2013, husband worked for Ayak, LLC, earning
approximately $100,000 per ye ar. Additionally, in 2010 he opened Austerman Davis
Associates, LLC, with his then -girlfriend, now-wife, C.A., whom he married in 2012.
Husband has a 60% ownership interest, and C.A. has a 40 % ownership interest in
Austerman Davis. On September 30, 2013, husband was fired from Ayak.
In December 2013, husband filed a moti on to modify his spousal-maintenance
obligation on the basis of his job loss and re duced income. Husband alleged that, since
being fired from Ayak, his annual income from Austerman Davis has been approximately
$9,000, or $750 per month. At the hearin g on his motion for modification of spousal
maintenance, husband stated that his inco me from Austerman Davis increased to $1,500
per month since being fired from Ayak. In Ap ril 2014, the district court filed its order
denying husband’s petition, finding husband’s claim of income not credible because it was
“unable, due to lack of supporting documenta tion, to determine [t he] income [husband]
receive[d] from his self-employment.”
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In August 2015, husband filed a seco nd motion for modification of spousal
maintenance, requesting termin ation or reduction of his sp ousal maintenance. Husband
alleged that he had been “severely” underemployed since 2013 and that by the end of 2014
his income had “decreased by more than 50%, from about $100,000 per year to under
$40,000 per year.” Husband also alleged that since opening Austerman Davis, he has never
made more than $20,000 per year from his se lf-employment. According to husband, his
total annual income from Austerman Davis was approximately $7,200 in 2012, $13,200 in
2013, and $15,383 in 2014, but he claimed that he only worked at Austerman Davis in the
third and fourth quarter in 2014. Husband also listed unemployment benefits he received
from the state of Alaska from 2013 to 2015. In support, husband submitted the following:
1. A self-prepared income chart show ing change of income from 2011
to 2014 prepared by husband;
2. 2013 and 2014 federal tax return for husband and C.A.;
3. 2013 W-2 for husband from Ayak;
4. 2013 and 2014 corporate tax return for Austerman Davis;
5. 2013 and 2014 W-2 from Austerman Davis for husband and C.A.;
6. 2013 and 2014 K-1 profit statement for husband and C.A.;
7. 2014 W-2 from contract work husband performed for PAE
corporation;
8. 2015 1st and 2nd quarter statements from Austerman Davis; and
9. A self-generated summary of husb and’s and C.A.’s various bank
account balances from December 2010, December 2011, December
2012, December 2013, December 2014, and June 2015
On April 11, 2016, the dist rict court filed an order denying husband’s motion to
modify spousal maintenance. The district court found that husband did not meet his burden
of establishing the statutory criteria for spous al modification. The district court found
neither husband, nor his reported income, nor his claimed corporate income from
Austerman Davis, to be credible. The district court highlighted that many of the documents
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husband submitted contained disc repancies that he did not cl arify. The district court
determined that it would not make a finding as to husband’s income because of the court’s
concerns with husband’s cred ibility and his inability to ve rify his purported income.
Consequently, the district court found that husband failed to demonstrate a substantial
change in circumstances.
On May 11, 2016, husband filed an affidavit in support of his motion for amended
findings to modify spousal maintenance. On May 13, 2016, husband filed his motion. On
May 31, 2016, husband filed a supplemental affidavit to su pport his motion. In sum,
husband’s filing with the district court regarding his motion for amended findings included
the following:
1. W-2’s and tax returns dating from 2009 to 2015;
2. September 2013 employment termination letter and final pay stub;
3. Corporate tax accountant letter;
4. MNSure health-care documentation of coverage for their children;
5. Keybank records from all accounts from 2012 to 2016;
6. Wells Fargo account transactions from 2012 to 2016; and
7. Navy Federal Credit Union account transactions from 2013 to 2016
In July 2016, the district court dismissed husband’s motion for amended findings as
untimely.1 The district court also ordered th e documents husband submitted with his
motion stricken from the reco rd because they were imprope rly submitted new evidence.
Husband appeals.

1 In an order filed on October 11, 2016, this court concluded that the district court erred in
dismissing husband’s motion for amended findi ngs as untimely but declined to remand
because the district court also addressed the merits of husband’s motion.
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D E C I S I O N
I. The district court’s denial of husband’s motion to modify spousal maintenance
was not an abuse of discretion beca use husband did not demonstrate a
substantial change in circumstances.
Husband argues that the district court “erred” in concluding that he did not meet his
burden of proving the existence of a substantial change in circumstances that rendered his
spousal-maintenance obligation unreasonable and unfair. We disagree.
We review a district court’s decision regarding whether to modify spousal
maintenance for an abuse of discretion. Kielley v. Kielley, 674 N.W.2d 770, 779 (Minn.
App. 2004). A district court abuses its disc retion regarding maintenance if its findings of
fact are unsupported by th e record or if it improperly applies the law. Dobrin v. Dobrin,
569 N.W.2d 199, 202 (Minn. 1997) (quotation omitted). We view the evidence in the light
most favorable to the district court’s finding s and defer to its credibility determinations.
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
Husband, as the party seeking to modi fy the award, bears the burden of
demonstrating (1) a substantial change in circumstances and (2) that the change renders the
current maintenance amount unreasonable and unfair. Minn. Stat. § 518A.39, subd. 2(a)
(2016). A party is entitled to a presumption of a substantial change of circumstances if he
or she shows that their gross income “has decreased by at least 20[%] through no fault or
choice of the party.” Id., subd. 2(b)(5) (2016).
Husband argues that the district court erre d in not presuming a substantial change
of circumstance because he proved that his income had decreased by at least 20%.
Specifically, husband argues that the district court “erred” in finding that his company’s
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gross receipts could be counted as his income . Husband mischaracterizes the district
court’s ruling.
“[G]ross income includes any form of periodic payment to an individual, including,
but not limited to, salaries, wages, [and] commi ssions.” Minn. Stat. § 518A.29(a) (2016).
Section 518A.29(a) applies to spousal main tenance because “the legislature intended
section 518A.29’s definition of gross income to apply to chapter 518, which governs
maintenance.” Lee v. Lee, 775 N.W.2d 631, 635 n.5 (Minn. 2009). We review a district
court’s finding on an individual’s income for clear error. Peterka v. Peterka, 675 N.W.2d
353, 357 (Minn. App. 2004).
Here, the district court did not find credib le husband’s assertion that, as a 60% owner
in Austerman Davis, he has not made more than $20,000 in a single year given that
Austerman Davis’ gross receipts from 2013 and 2014 averaged approximately $109,483.
It is true that gross receipts of a corporatio n do not equal gross income of an individual.
But here, the district court did not impute Aust erman Davis’ gross receipts to husband as
his income. See generally, Minn. Stat. § 518A.30 (2016) (addressing income from self-
employment or operation of a business). Ra ther, the district court noted the wide
discrepancy between Austerman Davis’ average gross receipts of $109,483 and husband’s
claim that he has never earned more than $20,000 per year given his 60% ownership in
Austerman Davis.
In addition, the district court found that husband failed to show a 20% decrease in
his income due to his lack of credibility, discrepancies in the documents he submitted, and
the limited information he provided. As a result, the district court concluded that it would
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not make a finding as to husband’s income. For example, the district court noted that
husband submitted a document stating that his and C.A.’s income for 2014 totaled $59,344,
but his 2014 tax return listed the total of th eir incomes as $75,544, w ith a total adjusted
gross income of $42,982. Additionally, the district court found that the limited information
husband provided regarding his various bank accounts for only one month of each year
between 2010 and 2015 was highly suspicious and prevented it from corroborating his
reported income.
Our careful review of the record supports the distri ct court’s factual findings and
determination. And we defer to the district court’s credibility determinations. Sefkow, 427
N.W.2d at 210. Because husband failed to show his income decreased by at least 20%, he
was not entitled to the presumption of a substa ntial change of circumstances. Nor did
husband meet his burden to show a subs tantial change of circumstances. Therefore, the
district court did not abuse its discretion in denying husband’s motion to modify.
II. The district court’s denial of husband ’s motion for amended findings was not
an abuse of discretion because husband has not pointed to any findings of fact
that were not supported by the record.
Husband also summarily cha llenges the district court’s July 2016 order denying
husband’s request for amended findings. We are not persuaded.
“A motion to amend findings must be base d on the files, exhibits, and minutes of
the court, not on evidence that is not a part of the record.” Zander v. Zander, 720 N.W.2d
360, 364 (Minn. App. 2006), review denied (Minn. Nov. 14, 2006). “When considering a
motion for amended findings, a district court must apply the evidence as submitted during
the trial of the case and may neither go outside the record, nor consider new evidence.” Id.
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(quotation omitted). We will not disturb a denial of a motion for amended findings absent
an abuse of discretion. Preferred Fin. Corp. v. Quality Homes, Inc., 439 N.W.2d 741, 743
(Minn. App. 1989).
With his motion for amended findings, husband submitted numerous documents not
previously submitted to the district court. The district court’s July 2016 order struck these
documents from the record. To the extent these documents were not previously submitted,
this portion of the district court’s order was not erroneous. See Zander, 720 N.W.2d at
364. Furthermore, husband has failed to establish which findings of fact from the district
court’s April 2016 order were clearly erroneous. As mentioned above, husband argues that
the district court imputed Austerman Davis’s gr oss income to husband, but this assertion
is not supported by the record. Thus, the district court did not abuse its discretion in failing
to make amended findings of fact to the April 2016 order.2
Affirmed.

2 We decline to review the district court’s April 2014 order as that order is not properly
before us. See Nordling v. Northe rn States Power Co. , 465 N.W.2d 81, 87 (Minn. App.
1991) (stating that failure to f ile notice of appeal limits court’ s review to issues properly
raised on appeal).