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Ramsey County v. Korbel6/7/2005
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C.
Korbel also challenges the CSM's findings as to his involvement with All American Window. Regarding Korbel's ownership of the company, the CSM found that:
19. The Obligee also testified that the Obligor had told her that he was the owner of All American, in the past, during their relationship.
23. A considerable amount of testimony was taken regarding whether the Obligor owned All American or whether he was an employee. The Obligor repeatedly denied any ownership interests in All American.
25. The Obligor's testimony is not credible in light of the evidence before the Court. The evidence shows that the Obligor's involvement with All American exceeds that which he represents.
Finding No. 19 is clearly erroneous. Williams never testified that Korbel told her that he owned All American Window. Williams merely testified that Korbel represented to her that "he ran his own business."
D.
Having determined that several of the CSM's factual findings are unsupported by the record and, therefore, clearly erroneous, we conclude that the ruling requiring Korbel to pay monthly child support in the amount of $700 is against all logic and facts in the record. Because the CSM erred in finding Korbel able-bodied and healthy, the CSM's calculation of Korbel's net income for the period from February 1, 2004, to June 30, 2004, was based on out-of-date documentation and therefore improper. Because the CSM improperly calculated Korbel's net income, we reverse the child support determination and remand for a recomputation of Korbel's net income in light of our ruling.
On remand, the CSM shall allow the parties to supplement the record with any additional relevant evidence that has arisen since the April 4, 2004 hearing, including, but not limited to, evidence that Korbel did in fact undergo back surgery on July 14, 2004 and has received custody of K.H.K.
II.
In its brief, the County requests that we strike several documents in Korbel's appendix as outside of the record on appeal, but the County failed to file a separate motion to strike. Because the County did not file a motion, we decline to consider the County's request. Minn. R. Civ. App. P. 127 ("Unless another form is prescribed by these rules, an application for an order or other relief shall be made by serving and filing a written motion for the order or relief."). Accordingly, we decline to consider the County's request to strike. See Claussen v. City of Lauderdale, 681 N.W.2d 722, 725 n.4 (Minn. App. 2004) (declining to review respondent's request to strike portion of appellant's brief where respondent did not file a motion), review denied (Minn. Sept. 21, 2004).
Reversed and remanded.
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