In the Matter of: Tamara Lynn Kriesel, petitioner, 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This opinion will be unpublished and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
A19-0712

In the Matter of: Tamara Lynn Kriesel, petitioner,
Respondent,

vs.

Michael James Rossman,
Appellant.

Filed December 30, 2019
Affirmed in part, reversed in part, and remanded
Reyes, Judge

Isanti County District Court
File No. 71-FA-17-474

Jennifer Nixon, Maple Grove, Minnesota (for respondent)

Ryan P. Griffin, Vadnais Heights, Minnesota (for appellant)

Considered and decided by Larkin, Presiding 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-father argues that the district court abused its discretion by (1) calculating
his income under Minn. Stat. § 518A.30 (2018); (2) not counting respondent-mother’s tax
credits as income to her ; (3) awarding health -care-coverage support to mother ; and
(4) awarding retroactive support to mother. We affirm in part, reverse in part, and remand.

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FACTS
Appellant-father Michael Rossman and respondent -mother Tamara Kriesel are the
parents of a joint child (the child) born in May 2015. Father executed a recognition of
parentage for the child later that month. Mother has three other children unrelated to father.
Mother obtained an order for protection (OFP) against father in October 2016 that required
father to pay child support of $264 per month. We reversed the OFP, including the child-
support order, in September 2017. Kriesel v. Rossman, No. A17-0117, 2017 WL 4228705,
at *6 (Minn. App. Sept. 25, 2017). Father nonetheless has continued to pay mother $264
monthly in child support . Father has also paid mother half of the child’s daycare costs
since the parties were together. In July 2017, during the pendency of the OFP appeal,
mother filed a petition to establish child support, upon which this appeal is based . The
parties agreed on custody and parenting time and stipulated to written submissions on the
issue of child support.
Father co -owns Rossman Construction LLC (Rossman Construction) with his
brother. The parties disagreed on how to calculate father’s income from Rossman
Construction for child-support purposes. Mother presented the report of certified financial
planner Mike Miller (Miller report), which calculated father’s average income at $112,218
per year, or $9, 352 per month, based primarily on the self -employment-income
calculations in Minn. Stat. § 518A.30 and Rossman Construction’s tax returns . Father
presented a declaration from certified public accountant Bernard Brodkorb (Brodkorb
declaration) stating that father’s income should be based on his personal tax returns,
leading to an income of $35,197 per year, or $2,933 per month.

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The district court found father to be self-employed with an average income from
2015 to 2017 of $106,643.33 yearly, or $8,886 monthly. It found that mother has a gross
monthly income of $3,049 from her 32 hours of work per week. Following Minn. Stat.
§ 518A.32, subd. 1 (2018), it imputed another $762 per month to get to a 40-hour-per-week
income. It ordered father to pay mother $1,122 per month in basic child support, $435 per
month in child-care support, and $156 per month in health-care support. The district court
ordered these payments effective retroactively , starting on July 1, 2017, and found that
father had accumulated $28,053 in unpaid support, which it labeled as “arrears.” This
appeal follows.
D E C I S I O N
I. The district court did not abuse its discretion by calculating father’s income
pursuant to section 518A.30.

Father argues that the district court (1) improperly determined that section 518A.30
applied and (2) abused its discretion in calculating business expenses under that section.
We disagree.
We review child-support orders for an abuse of discretion. See Butt v. Schmidt, 747
N.W.2d 566, 574 (Minn. 2008). But whether a source of funds is income for child-support
purposes is a legal question we review de novo. Hubbard Cty. Health & Human Servs. v.
Zacher, 742 N.W.2d 223, 227 (Minn. App. 2007 ) (citation omitted ). We review district
court findings of fact for clear error and will set them aside only if we have the “ definite
and firm conviction” that the district court made a mistake. Goldman v. Greenwood, 748
N.W.2d 279, 284 (Minn. 2008) (quotation and citation omitted).

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A. The district court prope rly determined that section 518A.30 applied to
father.

Father argues that his income is not subject to section 518A.30 because the statute
applies only to solely owned businesses and because Rossman Construction , a limited
liability company, is not a partnership. Father’s arguments are meritless.
Minn. Stat. § 518A.29 (2018) describes gross income for purposes of determining
child support as “any form of periodic payment to an individual, including . . . self-
employment income under section 518A.30.” Section 518A.30 then provides that
income from self -employment or operation of a business,
including joint ownership of a partnership or closely held
corporation, is defined as gross receipts minus costs of goods
sold minus ordinary and necessar y expenses required for self -
employment or business operation. Specifically excluded from
ordinary and necessary expenses are . . . any other business
expenses determined by the court to be inappropriate or
excessive for determining gross income for purpos es of
calculating child support.

Minn. Stat. § 518A.30 (emphasis added).
As an initial matter, mother argues that father failed to raise this argument to the
district court and therefore may not raise it now . We generally consider only issues and
theories presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988). Father did not argue prior to his appeal that section 518A.30 applies
only to sole owners or that Rossman Construction is not a partnership . Therefore, father
forfeited these arguments.
But e ven if we consider his argument, it has no merit. Section 518A.30
unambiguously treats income from the joint ownership of a partnership or closely held

5
corporation as self-employment income.1 See Haefele v. Haefele, 837 N.W.2d 7 03, 710-
12, 714 (Minn. 2013) (applying section 518A.30 to interest in closely held subchapter S
corporation). The district court found that father owned 50% of Rossman Construction
and that his income therefore qualified as self-employment income under section 518A.30.
The record supports this finding. Father admitted that he co-owns Rossman Construction
as an equal partner with his brother, and the business is taxed as a partnership. Therefore,
even if father did not forfeit this issue, the district court properly found that section 518A.30
applies to his income.
B. The district court did not abuse its discretion in calculating father’s
income.

Father argues that even if his gross income is to be calculated under section
518A.30, based on Rossman Construction’s gross receipts and expenses, the district court
erred in this calculation and as a result abused its discretion. We are not persuaded.
Section 518A.30 “gives the district court broad discretion to determine whether to
allow a parent to deduct an expense, even an otherwise ordinary and necessary expense,
from income.” Id. at 713. The district court must base these determinations in fact.
Newstrand v. Arend, 869 N.W.2d 681, 685 (Minn. App. 2015), review denied (Minn. Dec.
15, 2015). The party seeking to deduct a business expense has the burden of proving, if
challenged, that the expense is ordinary and necessary. Minn. Stat. § 518A.30. When that

1 In support of his argument that section 518A.30 applies only to sole owners, father cites
to an unpublished opinion regarding a maintenance award. Unpublished opinions are not
precedential, see Minn. Sta t. § 480A.08, subd. 3(c) (2018), and the case to which father
cites did not limit section 518A.30 to sole business owners.

6
party provides “ [n]o receipts or other documents” to show what portion of expenses is
properly deduc tible as business expenses , the district court may refuse to deduct those
expenses. See Keil v. Keil, 390 N.W.2d 36, 39 (Minn. App. 1986).
The district court computed father’s gross income by taking Rossman
Construction’s gross receipts and subtracting the cost of goods and its business expenses,
as listed on its tax returns. The district court divided that figure in half to reach father’s
“Share of Partnership Income.” Next, i t reviewed the portion of subtracted expenses that
mother challenged to determine which were ordinary and necessary. It added back in to
father’s share of income the expenses attributable to him that he did not prove to be
ordinary and necessary.
Father first argues that the distri ct court erred in this calculation because it had
already decreased the business expenses it first subtracted from Rossman Construction’s
gross profits, $116,130 in 2017, by the $41,526.50 it ultimately found to be not ordinary
and necessary expenses, which it then subtracted from father’s share of income. Father
claims this caused the district court to “double -assess[]” the disallowed deductions.
However, the record shows that the $116,130 figure did not already take into account any
later-disallowed expenses. As described above, $116,130 was the amount of business
expenses Rossman Construction claimed on its 2017 tax return. The district court therefore
did not double-assess the disallowed expenses.
Father next appears to challenge the district cou rt’s determinations that Rossman
Construction’s checks written for cash, mileage-reimbursement expenses, and automobile
expenses were not ordinary and necessary, arguing that the district court improperly relied

7
on the Miller report, which questioned the expenses, rather than his Brodkorb declaration,
which described them as reasonable, and that he provided sufficient evidence.
For the checks written to cash from the business’s bank account, father relied only
on his expert’s statement that the total amount of the checks was not unusual. But we defer
to the district court’s credibility determinations of expert evidence. In re Paternity of
B.J.H., 573 N.W.2d 99, 104 (Minn. App. 1998) (citation omitted). The district court added
half of the checks written f or cash back into father’s income. The record, which contains
no indication of what father used the cash for, does not show that the district court erred.
Regarding mileage-reimbursement expenses, the district court found that father
reported driving significant amounts for Rossman Construction, but that he failed to present
evidence documenting his miles driven or the approximate locations he visited for business
purposes. It found, for example, that the mileage reimbursements from Rossman
Construction to father and to his brother were nearly identical each year,2 even though they
performed different job duties. It further found that father’s statements about his
significant mileage conflicted with testimony about his job duties and the company’s
operations. The record supports this finding. Even if it is reasonable for a business to have
some mileage-reimbursement expenses, father did not show what portion , if any, of the
expenses were properly deductible.
Finally, the district court found that Rossman Construction’s automobile expenses
lacked documentation showing they were ordinary and necessary business expenses. We

2 Father’s reimbursements were $42,000 in 2015, $20,00 0 in 2016, and $13,000 in 2017.
His brother’s were $38,000, $20,000, and $13,000, respectively.

8
agree generally with this determination but conclude that the district court added the
incorrect figure back into father’ s income . Under section 518A.30, self -employment
income is calculated by deducting the ordinary and usual expenses of the business.
Rossman Construction attributed the following amounts to “auto expenses ” on its tax
returns: $20,519 in 2015 , $19,311 in 2016, and $12,710 in 2017 .3 These expenses were
part of the total business expenses that the district court initially subtracted from Rossman
Construction’s gross receipts. But, instead of adding back into father’s income his portion
of these expenses, t he district court added the mileage deductions father claimed on his
personal taxes, which were $10,628 in 2015, $7,923 in 2016, and $16,414 in 2017.
Although the district court used the incorrect figure s, the effect o n father’s child
support obligation is de minimis. See Duffney v. Duffney , 625 N. W.2d 839, 843 (Minn.
App. 2001) (declining to remand for de minimis error) . Here, father’s average annual
income, based on 50% of the auto expenses claimed by Rossman Constr uction, would
appear to be $103,745, rather than $106,643.33. If so, father’s presumptively appropriate
guideline monthly support obligation would be approximately $1,095, rather than the
current $1 ,122.4 On this record, a $27 difference is de minimis and does not warrant
remand. See id.; see also Minn. R. Civ. P. 61 (requiring harmless error to be disregarded
unless doing so is “inconsistent with substantial justice”).

3 This was a separate category of expenses from the mileage -reimbursement expenses on
the business’s expense sheet.
4 Based on the income and support calculati ons in Minn. Stat. §§ 518A.34 and 518A.35
(2018).

9
The district court did not abuse its discretion by categorizing father’s income as self-
employment income under section 518A.30 or in calculating his income.
II. The district court properly exercised its discretion by not counting mother’s
tax credits as income.

Father argues that the district court should have counted as inco me the $4,026
Earned Income Tax Cre dit and $3,000 additional child -tax credit that mother claimed in
2017, because the tax credits were a “form of periodic payment” under section 518A.29(a).
We disagree.
Whether section 518A.29 applies to tax credits is a question of law we review de
novo. Sherburne Cty. Soc. Servs. ex rel. Schafer v. Riedle , 481 N.W.2d 111, 112 (Minn.
App. 1992) . Gross income includ es “any form of pe riodic payment to an individual. ”
Minn. Stat. § 518A.29 (2018). Regular annual payments, such as bonuses, can qualify as
income for child-support purposes. See Desrosier v. Desrosier, 551 N.W.2d 507, 508-09
(Minn. App. 1996) (concluding annual bonuses ranging from $7,000 to $17,000 constituted
income). But see Haasken v. Haasken , 396 N.W.2d 253, 261 (Minn. App. 1986)
(concluding district court did not err in finding annual bonuses ranging from $0 to $9,000
did not constitute income).5

5 The child -support statutes do not explicitly state whether refundable tax credits are
“income,” but they do require district courts to consider the tax effects of claiming a
dependent child after they calculate gross income and presumptive support obligations .
Minn. Stat. § 518A.43, subd. 1(5) (2018). The number of dependent children a parent
claims affects both the Earned Income Tax Credit and the additional-child tax credit. See
I.R.C. §§ 24(d), 32 (2012); I.R.S. Pub. No. 972 (Jan. 23, 2018).

10
For 2017 income-tax returns, the Earned Income Tax Credit is refundable by any
amount exceeding a taxpayer’s tax liability, see I.R.C. § 32 (a)(1), and a portion of the
additional-child tax credit is refundable, based on income. See I.R.C. § 24 (d); I.R.S. Pub.
No. 972. The refund that mother requested on her 2017 tax return appears to include
amounts from both of these credits , beyond the taxes she had paid . However, the record
does not contain information on whether the IRS processed this refund and mother received
it. It also does not show that she received a refund from these credits in years other than
2017, such that they would be a “regular annual payment.” The record therefore does not
support father’s contention that these credits are periodic payments under section
518A.29,6 and the district court properly did not include them in mother’s income.
III. The district court properly awarded health-care coverage support to mother.

Father argues that the district court (1) erred by allocating 73% of medical-care costs
to him because it er red in determining each parent’s income and (2) abused its discretion
by basing his obligation on mother’s total cost of health-care coverage for dependents ,
“even though 3/4 of the dependents are not his responsibility.” We disagree.
Because we conclude that the district court did not err in calculating each parent’s
income, we address only father’s second issue. Mother argues that father raised this issue

6 We note that section 518A.29(h) exempts from income “forms of public assistance based
on need.” Minnesota courts have not yet addressed the question of whether the Earned
Income Tax Credit or other child tax credits fall under this exemption, but Minnesota
bankruptcy courts have found earned -income tax credits to be “relief based on financial
need.” See, e.g., In re Tomczyk , 295 B.R. 894, 896 (Bankr. D. Minn. 2003). However,
because the parties did not provide briefing on this issue, and because we find that mother’s
tax credits did not meet the definition of “periodic,” we need not address whether they fall
under this exemption.

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for the first time on appeal. The record shows that father did not argue to the district court
that he should not be required to contribute to mother’s health-care coverage of the child.
In fact, his written submissions to the district court set his requested health-care coverage
contribution at $183 , which is $27 more per month than what the distric t court ordered.
Because father did not raise this issue in the district court and it did not consider it, we
conclude that father forfeited this argument. See Thiele, 425 N.W.2d at 582.
IV. The district court abused its discretion in determining father’s retroactive
support obligation and by finding that he was in arrears.

Father argues that the district court abused its discretion by awarding retroactive
support to mother, not crediting his earlier child-care payments, and finding that he owes
back support. We agree in part.
We will uphold a district court’s determination of child support unless it is “against
logic and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Here,
the district court ordered father’s child -support obligations to be effective July 1, 2017 ,
which is the beginning of the month in which mother filed this action. The district court
determined that father owed $28,053 in back support by multiplying his $1,713 total
monthly support obligation by the 21 months fro m July 2017 to April 2019. It gave him
credit for “Voluntary Child Support Payments,” in which it included only the $264 monthly
basic support payments he had made to mother since October 2016.
Father first claims that , although “the [district] court had the discretion to award
retroactive child su pport,” it did not have a “principled basis for the exercise of that
discretion” because it based its award on the voluntary nature of his prior payments. The

12
district court order referenced father’s prior voluntary payments in order to give him credit
for those payments , but it did not indicate in any way that it based its decision to award
retroactive support on those payments. The district court did not abuse its discretion on
this basis.
Father also argues that the district court abused its discretion by not giving him
credit for the prior child-care payments he had made to mother, as it did with his payments
of $264. In an affidavit, mother had stated that father “has always voluntarily paid for one-
half of the cost of [the joint child’s] daycare,” including both before and since the parties
separated. The district court’s order did not address these prior child-care support
payments, and its exclusion of them from the category of “Voluntary Child Support
Payments” appears to be against the facts on the record. The record does not provide any
basis for the district court giving father credit for some of his prior voluntary payments ,
but not others. We conclude tha t father should receive credit for his prior child-care
payments.
Finally, father contends that the district court abused its discretion by awarding back
support, which it described as arrearages. We review a district court’s determination that
a parent’s child support obligation is in arrears for clear error. See Cavegn v. Cavegn, 378
N.W.2d 636, 638 (Minn. App. 1985). “Arrears are amounts that accrue pursuant to an
obligor’s failure to comply with a support order.” Minn. Stat. § 518A.26, subd. 3 (201 8).
Here, the district court awarded retroactive support and deemed that support in arrears at
the same time. This is contrary to our decision in County of Nicollet v. Haakenson . 497
N.W.2d 611, 616 (Minn. App. 1993) (holding “retroactive child support award was not an

13
‘arrearage.’ . . . Retroactive child support constitutes an arrearage only if it is not paid when
due.”). While it was within the discretion of the district court to award retroactive support,
it erred by entering the past amount as an arrearage. We therefore reverse the district
court’s determination that father was in arrears and remand for recalculation of the
retroactive award amount in light of his prior child-care payments.
Affirmed in part, reversed in part, and remanded.