Opinion
No. C2-99-823.
Filed November 9, 1999.
Appeal from the District Court, Fillmore County, File No. F089421.
George F. Restovich, Bruce K. Piotrowski, George F. Restovich Associates, (for appellant)
Jeffrey D. Bagniefski, Paul E. Deloughery, (for respondent)
Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Michele Oeltjen and her former spouse share custody of their four children. When their oldest child graduated from high school, Oeltjen filed a motion to modify child support to reflect that two minor children live with her compared to only one minor child with her former spouse. The trial court declined to include the former spouse's overtime wages in determining his income, and denied Oeltjen's motion to increase child support. On appeal from a denial of her motion for amended findings and/or a new hearing, Oeltjen argues the trial court erred by considering her former spouse's untimely submissions, and by not including his overtime income in the child support calculations. We affirm.
DECISION
Oeltjen argues the trial court improperly considered her former spouse's brief that was submitted one month after Oeltjen's submissions and only three days before the trial court issued its order. See Minn.R.Gen.Pract. 303.03(a)(3) (requiring responding party to file and serve its memoranda and affidavits five days prior to hearing). But the record shows: (1) at a November 17, 1998 hearing, the parties agreed to exchange financial information, including information on excess employment, and submit written arguments; (2) on February 5, 1999, Oeltjen filed a letter brief; (3) on March 8, 1999, Oeltjen's former spouse filed a letter brief and affidavit that addressed the statutory factors contained in Minn. Stat. § 518.64, subd. 2(c)(2)(i)-(iii) (1998); and (4) on March 12, 1999, without an additional hearing, the trial court issued an order resolving the child support issues. Given these facts, the trial court acted within its discretion in accepting the submissions. See Minn.R.Gen.Pract. 303.03(b) (providing trial court discretionary remedy for late filings); Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990) (holding trial court has broad discretion over whether to admit evidence); see also Wolfe v. City of Austin, 240 Minn. 165, 169, 60 N.W.2d 74, 76-77 (1953) (holding trial court acted within its discretion accepting late affidavits).
Oeltjen also argues the trial court improperly calculated her former spouse's child support obligation by declining to include his overtime income. But the record demonstrates: (1) after entry of the existing support order, Oeltjen's former spouse changed his employment; (2) his excess employment at this new job was voluntary and not a condition of employment; and (3) all overtime work was paid by the hour. See Minn. Stat. § 518.64, subd. 2(c)(2)(i)-(iii) (stating overtime excluded from net income if obligor proves voluntary overtime began after support order and is paid by the hour). Despite knowing that "excess employment" was an issue for the trial court, Oeltjen failed to submit any evidence to refute these facts. Under these circumstances, the trial court's decision to exclude overtime from net income in calculating the child support obligation was not a clearly erroneous conclusion that is against logic and the facts on record. See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (defining abuse of discretion); see also Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn.App. 1985) (stating party cannot complain when its failure to enter evidence leads to denial of motion to modify support).