In re the Matter of: Dennis J. Arvig, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1440

In re the Matter of:
Dennis J. Arvig, petitioner,
Appellant,

vs.

Trudy A. Kawlewski,
Respondent,

County of Wadena,
Intervenor.

Filed June 17, 2019
Affirmed
Bratvold, Judge

Wadena County District Court
File No. 80-F1-05-000042

Paul B. Hunt, Karkela, Hunt & Cheshire, PLLP, Perham, Minnesota (for appellant)

Timothy H. Dodd, Detroit Lakes, Minnesota (for respondent)

Considered and decided by Bratvold, Presiding Judge; Rodenberg, Judge; and
Reilly, Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Appellant-father challenges the district court’s order denying a motion to modify
his child-support obligation, arguing that the court: (1) failed to apply the rebuttable
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presumption set out in Minn. Stat. § 518A.39, subd. 2(b)(1) (2018); (2) placed “an undue
burden” on him by requiring that he establish his income at the time his support obligation
was previously determined; (3) erred by considering whether the existing child-support
obligation was a deviation from the child- support guidelines; and (4) erred by accepting
the factual findings of the child support magistrate (CSM). Because the district court did
not abuse its discretion by denying appellant’s motion to modify, we affirm.
FACTS
Appellant-father Dennis J. Arvig and respondent- mother Trudy A. Kawlewski are
the parents of C.T.K., born in 2004. Arvig and Kawlewski never married and share legal
custody of C.T.K. Kawlewski has primary physical custody of C.T.K., subject to Arvig’s
parenting time. In May 2008, the district court issued findings of fact, conclusions of law,
order and an order for judgment, based on the parties’ stipulations, and ordered Arvig to
pay $500 per month for his child-support obligation.
In January 2013, Arvig’s child-support obligation was modified by stipulation of
the parties, which is reflected in the CSM’s order (the 2013 order). In the 2013 order, the
CSM adopted the parties’ stipulations, stated the disputed facts and claims, found a
substantial change in circumstances that made the existing child-support order
unreasonable and unfair, and ordered Arvig to pay $1,000 per month in child support. Two
of the factual findings, stipulations and disputes are raised by Arvig in his appeal to this
court, so we summarize them here.
First, the CSM found that Arvig was self -employed with Roundtuit, LLC, but did
not determine Arvig’s income. Instead, the 2013 order stated that the parties disagreed
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about Arvig’s income; Arvig asserted that his monthly income was approximately $5,000,
while Kawlewski “allege[d] that [Arvig’s] monthly earnings [were] sufficient to entitle her
to an award of child support in an amount equal to the maximum allowable under the
guidelines.”
Second, the CSM also stated that the parties agreed Arvig would pay $1,000 per
month in ongoing child support, but did not determine whether this was a deviation from
the child-support guidelines. Instead, the CSM noted that Arvig alleged his obligation was
an “upward deviation from the presumptive guidelines,” whereas Kawlewski alleged the
obligation was a downward deviation.
In December 2017, Arvig moved to modify his child-support obligation. 1 In his
affidavit in support of his motion, Arvig averred that there had been a substantial change
in circumstances because he was no longer self-employed as a “swing trader” at Roundtuit,
LLC, and instead worked at Arvig Enterprises, Inc. as a programmer, resulting in a change
in his income. Arvig attested that, while self -employed, he agreed “for child support
purposes” that he “would be imputed to earn $8,000.00 per month” but he never actually
earned that amount. Arvig attested that he currently earns $3,810.40 in gross monthly pay
and has no additional sources of income. And Arvig averred that he recently received more
parenting time. Arvig concluded that “with [C.T.K.] being in [his] care more often, and in
addition to [his] substantial change in gross income, [his] child support should be reduced.”

1 At the time Arvig filed his motion to modify, his child-support obligation was $1,046 per
month due to cost-of-living adjustments.
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In March 2018, the CSM conducted a hearing on Arvig’s motion and heard
testimony from Arvig and Kawlewski. Arvig testified that his inheritance, which he uses
to pay bills, is almost exhausted, and that he suffered financial losses from Roundtuit. Arvig
also testified that he could not be self-employed as a swing trader because of his increase
in parenting time, and , therefore, he is now employed at Arvig Enterprises, a company
owned and operated by his family, where he works 40 hours per week earning $22 per
hour. Arvig is a shareholder of Arvig Enterprises. Arvig testified that, based on
his calculations, he has at least 45.1% custody of C.T.K. Kawlewski’s attorney
cross-examined Arvig regarding his other sources of income, the value of his home, and
his tax returns. Kawlewski testified that she was employed part time at Perham Health
Pharmacy, earning $13.77 per hour.
In April 2018, the CSM denied Arvig’s motion and issued written findings of fact,
conclusions of law, and an order (April 2018 order). The CSM initially determined that
Arvig “works 40 hours per week earning $22 per hour.” But the CSM also found Arvig’s
credibility was “suspect, to say the least,” giving several reasons. First, the CSM also found
that Arvig “did not acknowledge as income a $4,000 dividend he received” from Arvig
Enterprises in December 2017, although he testified that he received a dividend annually
and it has remained about the same amount for several years. Second, although Arvig
testified that Arvig Enterprises was an “S” corporation, he also testified that he did not
recall receiving tax information “attributing any of the corporate profit or loss to him.”
Third, while Arvig claimed that the value of his residence was the amount he paid for it,
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he testified that the tax value was “significantly higher” and that he had declined a
“substantially higher offer” to buy the property “because he felt it was not high enough.”
Going to the heart of Arvig’s claim, t he CSM rejected Arvig’s contention that the
2013 order was “based upon his income being $8,000 per month.” Th e CSM gave several
reasons: (1) “no income is shown” in the 2013 order; (2) the parties disputed Arvig’s
income at the ti me of the 2013 order, with Arvig claiming about $5 ,000 per month and
Kawlewski claiming he earned “significantly more”; and (3) the parties’ dispute “was
settled by stipulation” in which Arvig “agreed that he would pay” $1 ,000 per month. The
CSM found that the 2013 order did not describe any income as imputed and did not state
whether the support amount was a deviation from the guidelines.
The CSM concluded that Arvig “failed to establish what his income was at the time”
of the 2013 order, “failed to meet his burden of proving that his current income is
substantially different than it was at the time” of the 2013 ord er and failed to demonstrate
that the 2013 order is unfair or unreasonable. The CSM also found that there “has not been
a substantial change in circumstances that renders the existing child support order
unreasonable and unfair.”
Arvig moved the district court to review the CSM’s order. After receiving a
transcript of the hearing conducted before the CSM, the district court denied Arvig’s
motion for review (June 2018 order). The district court initially determined that the CSM’s
findings, including its adverse credibility finding, were supported by the record evidence.
The district court also found that the 2013 order did not determine Arvig’ s income.
Additionally, the district court found that, in support of his current motion to modify, Arvig
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“offered a single paystub into evidence as documentation of his income” even though it
“did not reflect the amount and regularity of overtime hours” worked by Arvig, or “any
distributions or income related to any of his ownership interests” in Arvig Enterprises. The
district court concluded that Arvig had “failed to demonstrate that his or [Kawlewski’s]
financial circumstances had substantially changed since the prior support order,” therefore,
the April 2018 order was not erroneous. Arvig appeals.
D E C I S I O N
Arvig argues that the district court “erred in determining that there was no change
in the parties’ circumstances that renders the existing child support order unreasonable and
unfair.” When a district court affirms a CSM’s decision, the CSM’s decision becomes the
decision of the district court and this court reviews the decision of the district court. See
Kilpatrick v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn. App. 2004). Here, the district
court concluded that the CSM did not err in his April 2018 order and the district court
ordered that the findings and conclusions of the April 2018 order, “not inconsistent with
this [o]rder, remain unchanged and in full force and effect.”
This court reviews the decision whether to modify child support for an abuse of
discretion. Haefele v. Haefele, 837 N.W.2d 703, 708 (Minn. 2013). While a district court
has broad discretion in ordering modifications, it abuses its discretion when it acts outside
the statutory limits set by the legislature, or when it resolves the matter in a manner “that
is against logic and the facts on record.” Id. (quotation omitted).
A district court may modify an award of child support if there has been a substantial
change in circumstances that makes the existing award unfair and unreasonable. See
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Minn. Stat. § 518A.39, subd. 2(a) (2018). The circumstances that may warrant
modification include a “substantially increased or decreased gross income of an obligor or
obligee” and a “substantially increased or decreased need of an obligor or obligee.” Id. ,
subd. 2(a)(1), (2). The party moving to modify child support carries the burden of
demonstrating both (1) a substantial change in circumstances and (2) that the change
renders the existing child-support award unfair and unreasonable. Id., subd. 2(a); see also
Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (addressing modification of spousal
maintenance).
Arvig criticizes the CSM’s decision in four ways, which we address in turn.
A. Rebuttable presumption
Arvig argues that the CSM failed to apply the rebuttable presumption in section
518A.39 “to the undisputed facts in the record.” Under the statute, if the application of the
child-support guidelines to the parties’ current circumstances results in a calculated
obligation that is at least 20% and $75 different from the existing support order, then a
rebuttable presumption exists that the existing support obligation is unreasonable and
unfair, and an irrebuttable presumption exists that there has been a substantial change in
circumstances. Minn. Stat. § 518A.39, subd. 2(b)(1); Rose v. Rose, 765 N.W.2d 142, 145
(Minn. App. 2009).
Arvig argues that he “clearly demonstrated” the parties’ change in circumstances
and “a 20% / $75 difference” when the existing child-support guidelines are applied. Arvig
cites the CSM’s finding that Arvig “was earning $22.00 per hour , and working full-time
(40 hours per week)” and claims that the CSM added a “potential income of another
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$286.00 per month to Arvig for a total gross monthly income of $4,096.” Arvig asserts that
his income “result[s] in a calculated court order that is at least 20 percent and at least $75.00
per month higher or lower than the existing support order.” See Minn. Stat. § 518A.39,
subd. 2(b)(1).
We disagree. Despite having the burden of proof, Arvig failed to provide sufficient
credible evidence of his income. A party moving to modify child support must provide
supporting documents, including “a financial affidavit, disclosing all sources of gross
income.” See Minn. Stat. § 518A.28(a) (2018) (“The financial affidavit . . . [is to include,]
but [is] not limited to, pay stubs for the most recent three months, employer statements, or
statements of receipts and expenses if self-employed.”). During the hearing, Arvig
submitted one paystub from Arvig Enterprises, dated March 16, 2018. Arvig testified that
he “[o]ccasionally” receives overtime pay, but the single paystub did “not reflect the
amount and regularity of overtime hours worked.” On cross-examination, Arvig testified
that he receives other income that is not reflected in the paystub from Arvig Enterprises.
First, Arvig has an inheritance, which he testified is being depleted, but is not “gone,” and
he uses the inherita nce to “mak[e] ends meet.” Second, Arvig testified that he receives a
$4,000 dividend from Arvig Enterprises at the end of each year. Neither his inheritance nor
his dividend income was included in Arvig’s affidavit supporting his motion to modify.
Kawlewski contends that “until the level of [Arvig’s] income can be accurately
assessed, it is not possible to determine that the statutory presumptions would apply.” We
agree. Arvig failed to provide the CSM with sufficient credible evidence of his income.
Thus, the CSM did not err by refusing to apply the rebuttable presumption in section
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518A39, subdivision 2(b)(1). 2 See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243
(Minn. App. 2003) (stating that “a party cannot complain about a district court’s failure to
rule in [that party’s] favor when one of the reasons it did not do so is because that party
failed to provide the district court with the evidence that would allow the district court to
fully address the question”), review denied (Minn. Nov. 25, 2003).
B. Undue burden to prove prior income
Arvig argues that the CSM placed “an undue burden” on him to establish his income
at the time of the 2013 order. Minnesota law supports the CSM’s consideration of Arvig’s
income at the time of the 2013 order. Whether there is a substantial change in circumstances
rendering an existing support obligation unreasonable and unfair generally requires
comparing the parties’ circumstances at the time the support obligation was last set with
the parties’ circumstances at the time of the motion to modify. See Maschoff v. Leiding,
696 N.W.2d 834, 840 (Minn. App. 2005) (“U nless a support order provides a baseline for
future modification motions by reciting the parties’ then-existing circumstances, the

2 Arvig appears to contend that the case information sheet filed by Wadena County (the
county), including the child-support guidelines worksheet, “demonstrated the parties’
change in circumstances.” It is true that the county filed a case information sheet including
a child-support guidelines worksheet, which calculated Arvig’s support obligation to be
$554, based on income of $3,810. The CSM’s awareness of the county’s role is reflected
in its finding in the April 2018 order that Kawlewski had applied for nonpublic assistance
child-support services, therefore, the county “has a pecuniary interest, as well as an interest
in the welfare of the child,” citing Minn. Stat. § 518A.49 (2016). But the county’s
worksheet appears to be based on the same evidence that Arvig submitted to the CSM, a
single paystub. Based on the CSM’s determination that Arvig failed to provide sufficient
credible evidence of a substantial change in circumstances, it appears that the CSM
considered, and rejected, the county’s worksheet as evidence of Arvig’s income. See
Fraser v. Fraser, 702 N.W.2d 283, 292 (Minn. App. 2005) (noting that a district court
implicitly rejected an argument it did not address), review denied (Minn. Oct. 18, 2005).
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litigation of a later motion to modify that order becomes unnecessarily complicated
because it requires the parties to litigate not only their circumstances at the time of the
motion, but also their circumstances at the time of the order sought to be modified.”).
Here, the 2013 order did not determine Arvig’s income. Arvig makes conclusory
statements that his “employment and earnings ha[ve] changed substantially,” but he did
not provide the CSM with evidence to support his claim. Without evidence of Arvig’s 2013
income, the CSM could not determine whether his circumstances had substantially changed
in 2018. In short, the CSM did not hold Arvig to an undue burden by requiring him to
submit evidence of his income at the time of the 2013 order. Rather, the CSM correctly
concluded that Arvig failed to meet his burden to prove his income at the time of the
motion and the baseline circumstances at the time of the 2013 order. Id.; see also Hecker,
568 N.W.2d at 709 (noting that a stipulated maintenance award identifies “baseline
circumstances” against which future allegations of changed circumstances will be
measured); Eisenschenk, 668 N.W.2d at 243.
C. Deviation from the child-support guidelines
Arvig contends that the CSM erred by “speculating whether Minn. Stat. § 518A.43
applied to the existing order.” Specifically, Arvig objects to the CSM’s reasoning that “if
the amount of [Arvig’s] prior child support obligation was an upward deviation from the
guidelines, [Arvig] has failed to prove the conditions justifying a deviation no longer exist.”
Arvig contends that the CSM’s analysis placed “an undue burden” on him.
Minnesota’s child-support guidelines use a parent’s gross income as a starting point
for calculating the correct level of support. Haefele, 837 N.W.2d at 714. But courts have
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discretion to deviate from these guidelines “based on other facts or considerations that
suggest that the guidelines do not accurately represent the amount of the child-support
obligation for which a parent should be responsible.” Id. (citations omitted ). Section
518A.43 lists factors a court must take into account when deciding whether a deviation is
warranted. Minn. Stat. § 518A.43, subd. 1 (2018). If a district court decides a deviation
from the guidelines is warranted, it must make written findings stating the reasons for the
deviation. See In re Dakota Cty., 866 N.W.2d 905, 911 (Minn. 2015).
Arvig correctly points out that the 2013 order did not determine whether his
child-support obligation was a deviation from the guidelines. Arvig argues that he should
not have to “fight a ghost” and show that the deviation is no longer necessary, because it
had “no bearing on the present matter.” We reject Arvig’s argument for two reasons.
First, the existence of a prior deviation is relevant. At the time of the 2013 order,
Arvig claimed that the stipulated support amount was an upward deviation from the
guidelines. As Kawlewski points out in her brief to this court, “had [the prior obligation]
been an upward departure, as [Arvig] had alleged, the magistrate was correct in asking the
question whether the grounds for deviating were still relevant.” In fact, the statute explicitly
states that the court “ must take into consideration the . . . factors in setting or modifying
child support.” Minn. Stat. § 518A.43, subd. 1 (emphasis added).
Second, the CSM’s statement about the existence of a deviation in the 2013 order
underscores Arvig’s burden to show a substantial change in circumstances. See Bormann
v. Bormann, 644 N.W.2d 478, 480 -81 (Minn. App. 2002) (stating that the party seeking
modification carries the burden in “support -modification proceedings”). The CSM is
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simply stating that “if” the prior obligation was an upward deviation, then Arvig failed to
show that the deviation is no longer necessary, and thus, has not provided grounds to
modify. Thus, the CSM’s statement regarding the existence of a deviation is not an abuse
of discretion.
D. CSM’s factual findings
Arvig makes two general objections to the CSM’s factual findings. First, Arvig
asserts the CSM was biased against him b y finding his credibility “suspect,” as
demonstrated by the CSM’s questions to Arvig, which he contends were
“customary . . . for an opposing counsel,” yet the CSM did not question Kawlewski. As a
preliminary matter, Arvig waived any issue of bias by failing to present it to the district
court. See Braith v. Fischer, 632 N.W.2d 716, 725 (Minn. App. 2001) (“[T]he issue of bias
was not presented to the district court and we decline to address the issue.”), review denied
(Minn. Oct. 24, 2001); see generally Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988)
(noting that appellate courts generally address only those questions previously presented
to and considered by the district court).
And, even if Arvig had raised the issue, appellant courts defer to district court
credibility determinations. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
Moreover, this record does not reflect any bias on the part of the CSM. A CSM “may ask
questions of witnesses when needed to ensure sufficient evidence to make the required
findings.” Minn. R. Gen. Prac. 364.13 (role of child support magistrate). Because Arvig
did not provide sufficient evidence to establish his income, the CSM acted well within his
discretion when inquiring about Arvig’s salary and other income.
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Second, Arvig argues that the CSM abused his discretion because he “made no
inquiries into Kawlewski’s expenses or income” and did not “set any income for
Kawlewski.” The CSM did not make specific findings regarding Kawlewski’s income. We
conclude that the 2018 order sufficiently indicated that the CSM considered all the
evidence and rejected Arvig’s claim of a substantial change in circumstances, therefore,
more detailed findings were not required. See Tuthill v. Tuthill, 399 N.W.2d 230, 232
(Minn. App. 1987) (holding that failure to show substantially changed circumstances
precludes modification of spousal maintenance, therefore district court need not make
findings regarding other statutory factors). If Arvig sought to establish that Kawlewski’s
increase in income was sufficient to render the existing award unfair and unreasonable,
then it was his burden to offer this evidence at the hearing.
In sum, we hold that the CSM did not abuse his discretion by denying Arvig’s
motion to modify his child-support obligation.
Affirmed.