Opinion
No. C0-00-1072
Filed March 13, 2001
Appeal from the District Court, Wright County, File No. F99950360.
Geoffrey W. Tenney, (for respondent Abfalter)
Thomas N. Kelly, Wright County Attorney, Thomas C. Zins, Assistant County Attorney, (for respondent Wright County)
Carol H. Lostetter, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Following a paternity determination against appellant Michael Travis Williams, respondent Wright County sought reimbursement for blood tests, birthing costs, and public assistance furnished, and to establish Williams's ongoing child-support obligation. The district court ordered Williams to reimburse the county for the foregoing costs and set Williams's ongoing child support. Williams appeals, asserting that the district court clearly erred by denying his request to continue an evidentiary hearing and by allowing the hearing to proceed by default. Williams also argues that the evidence does not support the district court's findings for ongoing child support and reimbursement. Because the district court did not err in denying Williams's request for a continuance, and because the evidence supports the district court's determinations on child support and reimbursement, we affirm.
DECISION
Williams first argues that the district court erred in denying his request for a continuance of the November 24, 1999 hearing. Williams alleges that he did not receive formal notice of the November hearing, in violation of Minn.R.Gen.Pract. 122, which states that "requests for continuance shall be made by motion with notice to all parties." Here, Williams failed to appear at the previous October 27 hearing, although his appointed counsel did attend. Williams's counsel indicated that she was in contact with Williams and that he was not present because she and other counsel had agreed to a continuance. The hearing was continued to November 24. The district court instructed Williams's attorney that "Mr. Williams needs to be here [on November 24] unless we have a written agreement." The district court was unequivocal in its directive, and Williams's counsel, who had discussed the continuance with Williams, was responsible for notifying Williams of the new date. Williams had notice of the November hearing through his attorney, who confirmed at the November 24 hearing that she had been in contact with Williams after the October 27 hearing. The district court did not err by denying another continuance.
Although Williams told the district court that he was unaware of the November evidentiary hearing, the district court did not find him to be credible. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (indicating appellate courts defer to fact finder's credibility determinations).
Williams also argues that the district court should not have allowed the November 24 hearing to proceed by default. Williams cites Minn.R.Civ.P. 55 and Minn.R.Gen.Pract. 117. Neither of these rules supports Williams's position. Rule 55 addresses the process by which a party seeks default judgment against another party. Minn.R.Civ.P. 55.01, subd. (b). Rule 117 merely applies to the scheduling of default hearings and outlines the proof of claim required of the moving party. Minn.R.Gen.Pract. 117.01, 117.02. The court had specifically directed that Williams, who had failed to attend many scheduled hearings, needed to be present on November 24. The district court did not err in allowing the matter to proceed by default when Williams failed to appear. See, e.g.,Minn.R.Gen.Pract. 305.02(b) (providing that if party to family-court proceeding fails to appear at prehearing conference, court may "dispose of the proceedings without further notice to that party"); Minn.R.Gen.Pract. 307 ("Failure to appear at the scheduled final hearing may result in * * * the hearing of the matter as a default * * *."); see generally Minn. Stat. § 518.551, subd. 5b(c) (2000) ("If a parent * * * does not appear at a court hearing after proper notice of the time and place * * * the court shall set income for that parent based on credible evidence before the court.").
Williams argues that the district court erred by accepting testimony by affidavit because it denied him a full opportunity to cross-examine the county's witness. Williams, however, failed to raise this issue before the district court. This court will not consider matters not argued and considered in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Therefore, we decline to address this issue on appeal.
In actuality, Williams's attorney took full advantage of the opportunity to cross-examine the county's child-support officer during the November 24 hearing.
Not only did Williams's counsel fail to object to affidavit testimony, but she actually suggested it. Williams's attorney stated, "I am anticipating affidavit type testimony." Moreover, Williams's opportunity to submit affidavit testimony impaired the county's ability to cross-examine Williams because he failed to attend any of the prior hearings.
Williams argues the district court clearly erred in its findings of fact as set forth in its December 27, 1999 decree, and revised decree of April 26, 2000. The district court has broad discretion to provide for the support of the parties' children. Cf. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). "There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find [an abuse of] discretion." Id. at 50 (citation omitted). We will not reverse the district court's decision on child support unless that decision was clearly erroneous. Id. at 51. First, Williams claims that the district court improperly computed his child-support amount. Under Minnesota law, a parent is liable to the county for public assistance furnished to the parent, for which the parent has had the ability to pay. Minn. Stat. § 256.87, subd. 1 (2000). The ability to pay is determined under chapter 518. Id. In the same proceedings, the court may order future child support contributions by a parent found capable of reimbursing the county for public assistance previously furnished. Id., subd. 1(a). Similarly, support must be determined according to chapter 518. Id.
Williams argues that the district court erred in setting his initial ongoing child-support obligation in its December 27, 1999 order. At the November 24, 1999 evidentiary hearing, the district court received evidence of Williams's income in the form of employment records and the child-support officer's testimony. Williams, who failed to appear at the hearing, had consistently refused to disclose any information regarding his income or employment. Based on the information before it, the district court reasonably determined Williams's net income and accordingly calculated his child-support obligation pursuant to the guidelines. See Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn.App. 1995) (indicating this court will not reverse a district court's determination of net income used to calculate child support if it has a reasonable basis in fact). The district court did not clearly err in initially determining Williams's net monthly income at $1,808.85 and setting his ongoing child support at $543 per month in its December 27, 1999 order.
Williams argues that the district court improperly used his gross monthly income when it revised his monthly child-support obligation to $290 in its April 26, 2000 amended order. See Minn. Stat. § 518.551, subd. 5(b) (2000) (defining net income for child-support purposes as gross income less deductions for taxes, social security, pensions, union dues, and health insurance, among other things). In his affidavit, Williams simply alleged that his income was $1,000 per month. Williams was under "a duty to supply information in a proper way and to make a full and accurate disclosure of his assets * * *." See Solon v. Solon, 255 N.W.2d 395, 396 (Minn. 1977). Failure to disclose financial information "justifies [an] inference adverse to the party who conceals or evades." Id. (citation omitted). Given Williams's refusal to detail his income and finances, the district court was left with little choice but to accept the proffered $1,000 figure as roughly indicative of Williams's net income. In light of Williams's elusiveness, the district court did not clearly err by computing Williams's child-support obligation based on $1,000 net income. See, e.g., Sundell v. Sundell, 396 N.W.2d 89, 91 (Minn.App. 1986) (noting findings by district court not strictly in compliance with child-support modification statute, but "were the best that could be done considering the obfuscation by appellant."), review denied (Minn. Jan. 16, 1987).
Williams also argues that the district court erred in ruling that he must reimburse the county for expenses it has incurred, and that the district court erred in setting an ongoing child support order because the evidence does not support a finding that Williams can reimburse the county. The same abuse-of-discretion standard used to review the district court's determination of child support applies to reimbursement of public assistance. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn.App. 1990), review denied (Minn. Oct. 18, 1990); see, e.g., Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn.App. 1998) (noting that absent an abuse of discretion, this court will not reverse the district court's decision under Minn. Stat. § 256.87).
Here, Williams points to nothing in the record that shows the district court committed clear error. Williams merely argues that his alleged income is insufficient to reimburse the county. The district court did not clearly err.
Williams moves to strike portions of the county's appendix, claiming it contains documents outside the record on appeal. On appeal, the record consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings." Minn.R.Civ.App.P. 110.01. This court "will strike documents included in a party's brief that are not part of the appellate record." Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App. 1992) (citation omitted), aff'd, 504 N.W.2d 758 (Minn. 1993); see, e.g., AFSCME, Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23 (Minn.App. 1995) (indicating court may selectively disregard improper references to evidence outside record without striking entire brief), review denied (Minn. May 16 June 14, 1995). A review of the record shows that a majority of the documents in question were stamped as received by the Wright County Court Administrator. These documents are part of the record on appeal and this portion of Williams's motion to strike is denied. Documents located in the county's appendix at 72, 80, 91, 92 122, 124, 131, 132, and 135, however, are either not in the court file or not stamped as received. The county concedes that these documents are not part of the record on appeal. Consequently, we grant Williams's request to strike these documents.
Williams also moves to strike five unpublished cases included in the county's appendix. Williams claims that the county failed to provide notice:
If [an unpublished case is] cited in a brief * * * a copy of the unpublished opinion must be provided to all other counsel at the time the brief * * * is served * * *.
Minn. Stat. § 480A.08, subd. 3(c) (2000). Here, the county complied with the statute by including copies of the cases in its appendix at the time the brief was served. Williams's request to strike the unpublished cases is denied.
Affirmed.