In re the Matter of: Bradley Joseph Patraw, Respondent,

This opinion will be unpublished and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
A18-1647

In re the Matter of:
Bradley Joseph Patraw,
Respondent,

and

Ramsey County, intervenor,
Respondent,

vs.

Alicia Kay Wittmer, petitioner,
Appellant.

Filed May 28, 2019
Affirmed
Worke, Judge

Ramsey County District Court
File No. 62-FA-14-1817

Larry John Laver, Laver Law Office, Woodbury, Minnesota (for respondent Bradley
Joseph Patraw)

John J. Choi, Ramsey County Attorney, Amy A. Anderson, Shanika Alston, Assistant
County Attorneys, St. Paul, Minnesota (for respondent Ramsey County)

John G. Westrick, Savage Westrick, P.L.L.P., Bloomington, Minnesota (for appellant)

Considered and decided by Slieter, Presiding Judge; Worke, Judge; and Schellhas,
Judge.
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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant-mother challenges the district court’s grant of respondent-father’s motion
to reduce his child-support obligation, arguing that father failed to show a substantial
change in circumstances that rendered the existing obligation unreasonable and unfair, and
that the district court erred by failing to address mother’s discovery motion. We affirm.
FACTS
On July 11, 2012, respondent-father Bradley Joseph Patraw was ordered to pay $448
per month in child support to appellant- mother Alicia Kay Wittmer for their two joint
minor children. Two years later, father petitioned to establish custody and parenting time.
Mother counter-petitioned to modify child support. The parties entered into a stipulated
judgment and decree, agreeing to joint legal and joint physical custody of the children, and
establishing a temporary parenting-time schedule. Father had requested an additional night
on his parenting-time weekends. The district court reserved the child-support and
parenting-time issues for a hearing.
In September 2015, father moved to reduce his child-support obligation. In
November 2015, respondent Ramsey County intervened. The parties resolved their issues,
and on December 17, 2015, the child-support magistrate (CSM ) filed an order
incorporating the parties’ agreement. Among other things, the C SM granted father’s
request for additional parenting time and ordered father to continue paying $448 per month
in child support.
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In November 2017, father moved to reduce his child-support obligation. Mother
moved to increase father’s child-support obligation. When father was unresponsive to
mother’s discovery request, she moved to compel father to respond. During a hearing, the
parties agreed to exch ange discovery, but father remained noncompliant, and mother,
again, moved to compel father to respond.
The CSM held a hearing on May 31, 2018. On July 3, 2018, the CSM filed an order
granting mother’s motion to increase father’s child-support obligation. The CSM found
that at the time of the prior order, July 11, 2012, father’s monthly income was $1,743, and
mother’s monthly income was $1,256 . The CSM found that father was ordered to pay
$448 per month in child support. The CSM further found that in December 2015, father
was ordered to continue paying $448 per month in child support.
The CSM found that father is self -employed and did not provide documentation of
his current income. The CSM found that father provided his 2016 tax return, and testified
that he earns the same income that he did in 2015. Using father’s 2016 tax return, the CSM
found that father’s gross monthly income is $3,189. The CSM also found that father has a
legal duty to support a non-joint child.
The CSM found that mother was working an average of 43 hours bi-weekly, and
earning $9.50 per hour plus tips. The CSM found that mother is voluntarily underemployed
because she did not claim to be unable to work full time. The CSM found that mother has
the ability to work an additional 37 hours bi-weekly, earning $9.50 per hour, and attributed
income to mother, finding that mother’s average monthly income is $2,263.00.
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The CSM determined that the combined parental income for determining child
support is $6,213, and that the combined basic support obligation for two children is
$1,433. The CSM found that father’s percentage share is 51% and mother’s is 49%. The
CSM found that father has court-ordered parenting time between 10-45% and applied a
12% parenting-time -expense adjustment. The CSM found that father’s basic support
obligation would be $643 per month, which is 20% higher and $75 higher than the current
obligation. The CSM concluded that there was a substantial change in circumstances that
rendered the existing order unreasonable and unfair. The district court denied father’s
motion to reduce his child-support obligation, and increased father’s child- support
obligation to $643 per month.
Father filed a motion for review, challenging findings on income, parenting time,
and credit for his non-joint child. Mother filed a responsive motion, seeking correction of
clerical mistakes and review of the finding that she is voluntarily underemployed.
On September 20, 2018, the CSM filed amended findings of fact, conclusions of
law, and order. The CSM found that father has 50% parenting time, and a non-joint child
residing in his home, resulting in a $306 credit. The CSM did not amend the finding that
mother is voluntarily underemployed.
The CSM found that the combined parental income for determining child support is
$5,907, and the combined basic support obligation is $1,390. The CSM found that father’s
percentage share is 49% and mother’s is 51%, and that the parties each have 50% parenting
time. The CSM determined that father’s basic support obligation is $0 per month after the
parenting-time-expense adjustment. The CSM found that father’s basic support obligation
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is more than 20% and more than $75 lower than the current support obligation; thus, there
has been a substantial change in circumstances rendering the existing obligation
unreasonable and unfair. The CSM granted father’s motion to reduce his child- support
obligation. This appeal followed.
D E C I S I O N
Child support
Mother argues that the CSM erred in modifying father’s child-support obligation
because father failed to establish past and current income. A party may appeal from a final
order or judgment of a CSM. Minn. R. Gen. Pract. 378.01. We apply the same standard
of review to an appeal from a CSM’s order as that applied to an appeal from a district
court’s child-support decision. See Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.
App. 2000) (stating that authority of CSM with respect to establishing, modifyi ng, and
enforcing child support is comparable to that of district court). A district court, and thus a
CSM, has broad discretion to modify child support. Gully v. Gully, 599 N.W.2d 814, 820
(Minn. 1999). The district court abuses its discretion if its decision is based on a
misapplication of the law or is contrary to the facts or logic. Shearer v. Shearer, 891
N.W.2d 72, 77 (Minn. App. 2017).
A district court may modify a child-support obligation if the moving party shows
that the obligor or the obligee has experienced a substantial change in circumstances that
makes the existing obligation unreasonable and unfair. Minn. Stat. § 518A.39, subd. 2(a)
(2018); Bormann v. Bormann, 644 N.W.2d 478, 480-81 (Minn. App. 2002) (stating that
moving party bears burden of proof). A substantial change in circumstances is presumed
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if application of the child-support guidelines to the parties’ current financial circumstances
would result in a child-support obligation that is at least 20% more or less, and at least $75
more or less than the amount of the existing obligation. Minn. Stat. § 518A.39, subd.
2(b)(1) (2018).
Mother argues that father failed to show the parties’ current incomes and incomes
in December 2015, which was required in gaging whether father’s income substantially
decreased since the time support was last set. See Maschoff v. Leiding, 696 N.W.2d 834,
840 (Minn. App. 2005) (stating that determining whether a substantial change in
circumstances renders an existing obligation unreasonable and unfair generally requires
comparing the parties’ circumstances at the time support was last set or modified to their
circumstances at the time of the motion to modify). The CSM determined that child support
was last set on July 11, 2012, not in December 2015 as mother asserts. Mother
acknowledges that the July 11, 2012 order provided the parties’ incomes for child-support
purposes, but claims that child support was modified in the December 2015 order, which
did not recite the parties’ incomes at that time.
The CSM found that “[i]n the prior order dated July 11, 2012, [father] was ordered
to pay child support of $448.00 per month.” The CSM found that at the time, father’s
monthly income was $1,743 and mother’s monthly income was $1,256. Thus, child
support was set on July 11, 2012. In December 2015, the CSM found that “[f ather] will
continue to pay child support to [mother] in the amount of $448.00 per month.” This
December 2015 order did not set or modify child support. It did not set an amount because
it was merely an agreement to continue paying the amount previously set. And it certainly
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did not modify child support because, again, father agreed to continue paying the amount
he was previously ordered to pay. The record supports the CSM’s determination that child
support was last set in July 2012.
Mother argues that father failed to show a change in circumstances because he failed
to provide evidence of the parties’ incomes at the time of the last order. However, the CSM
correctly identified July 2012 as the last time support was set or modified, and thus, had a
baseline from which to determine whether father showed a substantial change in
circumstances that rendered the original child-support order unreasonable and unfair.
Mother does not challenge any other component of the CSM’s order; therefore, mother has
not shown that the CSM abused her discretion in modifying father’s child-support
obligation.
Discovery
Mother also argues that by refusing to respond to discovery, father failed to establish
that his income decreased. See Minn. Stat. § 518A.39, subd. 2(a)(1) (stating that a showing
of substantially increased or decreased gross income of an obligor or obligee may constitute
a change in circumstances that renders an existing order unreasonable and unfair). Mother
claims that the CSM erred by modifying child support without addressing her motion to
compel father to respond to discovery. A district court has “wide discretion” regarding
discovery and, absent an abuse of that discretion, the decision will not be reversed. Kielley
v. Kielley, 674 N.W.2d 770, 780 (Minn. App. 2004).
In the July 3, 2018 order, the CSM found that father did not provide documentation
of his current income. The CSM’s findings on father’s income are based on his 2016 tax
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returns. The CSM did not make findings regarding mother’s motion to compel discovery.
After the July 3, 2018 order, father requested review and mother sought to “fix clerical
mistakes,” and for review of the finding that she is voluntarily underemployed. Mother
did not raise a discovery issue.
During a conference addressing father’s motion and mother’s responsive motion,
the CSM stated that, because father did not request a hearing in his motion, the CSM would
not be “taking any more information” in deciding the motions. Mother agreed that she was
“happy with . . . just relying on [the] paperwork.” At no time did mother raise the discovery
issue prior to the CSM issuing the amended order. See Minn. R. Gen. Pract. 377.03, subd.
2(a), (e) (stating that a motion for review shall state the reasons review is requested and
state whether the party is requesting authorization for new evidence). Because mother
never brought the discovery issue to the attention of the CSM after the July 2018 order, it
cannot be raised for the first time on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988) (holding that, generally, an appellate court will consider only matters argued
to and considered by the district court); Berquam v. Berkner, 374 N.W.2d 802, 803 (Minn.
App. 1985) (holding that an alleged defect in district court findings not brought to the
attention of the district court cannot be raised for the first time on appeal).
Even in considering mother’s claim, however, it appears that the CSM implicitly
denied mother’s motion to compel discovery when it granted father’s motion to modify
child support. See Kielley, 674 N.W.2d at 780-81 (stating that while the district court did
not explicitly rule on the motion to compel discovery, it denied the motion by denying the
motion to modify maintenance).
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Father was required to disclose all sources of gross income in order to calculate his
gross income for child-support purposes. See Minn. Stat. § 518A.28(a) (2018). If a parent
does not provide a financial affidavit, “the court shall set income for that parent based on
credible evidence before the court.” Id. (c). “Credible evidence may include
documentation of current or recent income . . . .” Id.
Father provided his 2016 tax returns. Father testified that he asked for an extension
on his 2017 taxes. He stated that he was “on the same path this year as . . . last year,” and
has been on the same financial path “for the last two years.” Father testified that his income
has not changed since 2016. Father testified that he likely earned $3,000 in May 2018,
$2,800 in April, and $1,200 in March. He stated that his income has been “pretty consistent
for the past three years.” Based on father’s testimony, the CSM used father’s 2016 tax
returns to determine his income. The CSM’s implicit denial of mother’s motion to compel
discovery was within the broad discretion afforded in addressing discovery matters.
Affirmed.