Coady v. Jurek

366 N.W.2d 715, 1985 Minn. App. LEXIS 4127
CourtCourt of Appeals of Minnesota
DecidedApril 30, 1985
DocketC3-84-1877
StatusPublished
Cited by8 cases

This text of 366 N.W.2d 715 (Coady v. Jurek) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coady v. Jurek, 366 N.W.2d 715, 1985 Minn. App. LEXIS 4127 (Mich. Ct. App. 1985).

Opinion

OPINION

CRIPPEN, Judge.

In a child support order, the trial court found that appellant earned the equivalent of $2,000 net income per month and ordered him to pay, in accordance with the guidelines, $600 per month child support. Appellant brought this appeal. We affirm in part, and reverse and remand in part.

FACTS

Appellant Aime (“Bill”) L. Coady and respondent Jeannine Mary Jurek, who are not married, had two children, Jeannine Aime ViRay, born October 15, 1976, and Alexis Aplonia ViRay, born March 25, 1979. *717 Appellant commenced an action to determine his parentage on June 6, 1983. He was adjudicated the father of the two children in an order of August 23, 1983, amended by an order of September 26) 1983. Custody of the children was-placed:' with respondent, and appellant was given-visitation.

The parties stipulated that any past-due child support would be limited to amounts-due from January, 1983, to the present, and that appellant would be given credit for mortgage and utility payments which he made on behalf of respondent, which are in excess of $7,185.46.

Appellant owns a gas station/eonve-nience store and a four-plex, the latter subject to a $50,000 mortgage. Appellant lives in one of the four-plex units. Respondent resides in a home, and receives $250 per month from a renter. She also does some caretaking and other odd jobs. The home in which she resides was purchased by appellant and sold to her on a contract for deed. She must make mortgage and contract for deed payments.

Appellant’s adjusted gross income in 1980 was $14,965.18; in 1981, $18,801; and in 1982, $9,556. The only “paper” deductions which he claimed were for depreciation of his four-plex. He argued that his-1982 income, excluding deductions for depreciation, was between $12,100 and $13,-000, averaging approximately $1,000 to • $1,100 per month. He is willing to pay child support based on this gross figure, rather than a lower net figure.

On March 27, 1984, the court, by a referee, issued recommended findings of fact- and order for judgment setting the child support obligations in the parentage action. A finding stated:

That the Petitioner’s net income as defined in Minnesota Statutes § 518.551 derived from the income and benefits of .his proprietorship and self-employment at Riverside Service and the income and benefits of his owner-occupied real estate at 1912 Emerson Avenue South, Minneapolis, is found to be the equivalent of $2,000.00 per month.

The referee recommended that appellant pay $600 per month for child support, the recommended guidelines amount, and that he provide comprehensive medical and dental insurance for the children. The referee further recommended that appellant pay $400 as partial attorney fees.

Immediately thereafter, the district court “approved” the findings and order. On April 3, 1984, a judgment decree was entered. On April 10, 1984, appellant filed a notice of review scheduling a hearing before the district court ,on May 9, 1984. On July 30, 1984, the court issued an order further confirming the referee’s order of March 27, 1984. Appellant then filed a notice of appeal covering the court’s order of July 30, 1984, and the judgment entered April 3, 1984.

ISSUES

1. Is the order confirming a referee’s order for judgment appealable?

2. Did the trial court err in findings leading to an award of child support?

3. Did the trial court abuse its discretion in its award of attorney fees to the respondent?

ANALYSIS

1.

The referee’s order was approved and judgment was entered prior to the running of the ten days in which a notice of review may be filed under Minn.Stat. § 484.65, subd. 9 (1984). The appeal was taken from that judgment, and from the subsequent order issued by the court confirming the referee’s order. The appeal from the judgment was not timely.

We conclude appellant has a right to appeal the final confirmation order and thus obtain review of questions presented to the trial judge. Minn.R.Civ.App.P. 103.-03(e).

We recognize that the final confirmation order often resembles an order denying a motion to amend findings or conclusions, a non-appealable order. See Tompkins v. *718 Sandeen, 243 Minn. 256, 258, 67 N.W.2d 405, 407 (1954). We have previously recognized, however, that a procedure created by the legislature, ending in an order preventing modification of a judgment, may require a right for appeal under Rule 103.-03(e). King v. Carroll, 356 N.W.2d 449, 451 (Minn.Ct.App.1984).

Alternative approaches have been considered, but are unacceptable. We cannot dispute the need determined by the Henne-pin County district court to give immediate effect to decisions of referees. See Minn. Stat. § 484.65 (1984). Thus, we cannot demand that entry of judgment await the conclusion of trial court review proceedings under section 484.65, subds. 9 and 10.

It is also unacceptable to demand that a party appeal the judgment and forego review by the trial judge. See Gummow v. Gummow, 356 N.W.2d 426, 428 (Minn.Ct.App.1984). We encourage parties to exhaust their remedy of review in the trial court before initiating an appeal.

2.

Appellant does not dispute the use of statutory guidelines to determine the amount of child support he owes. However, he takes issue with the trial court’s finding that he has $2,000 net monthly income. We must not set aside the finding unless it is clearly erroneous. Minn.R. Civ.P. 52.01.

Appellant states that his income, even including the only “paper” deduction which he has claimed, for depreciation, was between $12,100 and $13,000, averaging approximately $1,000 to $1,100 per month. He is willing to pay child support based on this amount.

When measuring income, the trial court can consider “cash flow” in addition to “paper income.” In Vitalis v. Vitalis, 363 N.W.2d 57, 59 (Minn.Ct.App.1985), an obligor’s life-style and cash flow were cited as support for a finding that he had “substantially increased earnings.” Similarly, cash flow might bear on income, “periodic payments)” in guideline calculations, Minn. Stat. § 518.54, subd. 6 (1984), or on “resources” considered to set support under Minn.Stat. § 518.17, subd. 4 (1984).

Here, the trial court found that appellant’s guideline income was the “equivalent” of $2,000. However, in this case, the facts are not present which would show appellant has a larger cash flow than his income reports indicate. This is not like Vitalis, where the husband had gross income of $119,400, and a negative net income. Id. at 58. Appellant acknowledges “paper” deductions for depreciation, which he is willing to forego.

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Bluebook (online)
366 N.W.2d 715, 1985 Minn. App. LEXIS 4127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coady-v-jurek-minnctapp-1985.