This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-1285

In Re the Marriage of:

Diane Lynn Carlson, petitioner,
Appellant,

vs.

Mark Clayton Carlson,
Respondent.

Filed February 15, 2000
Affirmed
Amundson, Judge

Freeborn County District Court
File No. F4-93-452

Diane Lynn Carlson, 10711 Jurel Court, #A, Lakeville, MN 55044 (pro se appellant)

James J. Schlichting, Peterson, Savelkoul, Schlichting & Davies, Ltd., 211 South Newton Avenue, Albert Lea, MN 56007 (for respondent)

Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant-mother alleges that the ALJ abused its discretion by increasing her child support obligation because the ALJ erroneously (1) found a presumptive change in circumstances, rendering the existing support obligation unreasonable and unfair; (2) neglected to consider her marital debt obligation when calculating the downward deviation from guidelines support; (3) calculated her support obligation on the basis of imputed income; and (4) failed to award her attorney fees. By notice of review, respondent contends the ALJ erred in granting appellant a downward deviation from the guidelines support amount.

FACTS

The marriage of appellant Diane Lynn Carlson and respondent Mark Clayton Carlson was dissolved on June 30, 1993. Two children were born during the marriage, A.N.C., born in 1987, and A.D.C., born in 1988. Mother was originally granted physical custody of both children and received child support from father. At the time of the dissolution, mother assumed a $13,000 debt as part of the property division.

On August 9, 1996, an order was filed transferring physical custody of both children from mother to father to better serve the best interests of the children. Mother was ordered to pay father guidelines child support of $189 per month. She did not request a downward deviation at that time.

On July 29, 1998, in recognition of an increase in motherís income, the ALJ filed an order raising motherís child support obligation to $211 per month, a downward deviation of $111 per month from the guidelines support amount.

On March 25, 1999, father filed a motion requesting an increase in child support due to a substantial increase in motherís earnings, a decrease in her expenses, and an increase in his expenses. Following a hearing on the motion, the ALJ issued a May 12, 1999 order, finding motherís child support obligation to be $410 per month under the guidelines, but granted a downward deviation of $110 per month based on the circumstances relating to debt as set forth in the 1998 order. The ALJ also found that motherís earning ability had increased, and although she was currently working only part-time, imputed income to her on the basis of her previous full-time salary. Mother requested an award of attorney fees, which the ALJ denied. Mother then filed a motion for amended findings, new trial, or relief from the judgment or order.

On June 23, 1999, the ALJ issued an amended order because mother had established that the ALJ had failed to consider motherís out-of-pocket medical expenses and a pension deduction based on full-time employment. The ALJ reiterated its decision to impute income to mother, finding that she had the ability to engage in full-time employment and earn an average net monthly income of $1,207. The ALJ ordered motherís child support obligation to remain at $300 per month, a $62 downward deviation from guidelines support. Mother appeals.

D E C I S I O N

I. Child Support

When setting support, the district court has broad discretion and will not be reversed absent a clearly erroneous conclusion against logic and the facts in the record. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. Jun. 22, 1993); see also Borcherding v. Borcherding, 566 N.W.2d 90, 92 (Minn. App. 1997) (standard of review applicable to a district courtís support determination also applies to an ALJís decision). In addition, this court will not set aside findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01.

a. Substantial Change in Circumstances

Mother asserts that the ALJ erred in modifying her child support obligation upward from $211 to $300 per month because the difference between the 1998 and newly calculated monthly obligations should have been only $40, short of the statutory threshold required to establish that a presumptively substantial change of circumstances existed warranting modification. By notice of review, father contends that the ALJ erred in deducting overtime and incentive pay in calculating motherís child support obligation, and that motherís child support obligation should be modified to $437.77 per month.

Child support may be modified if the moving party shows a substantial change in circumstances that makes the existing support award unreasonable and unfair. Minn. Stat. ß 518.64, subd. 2(a) (1998). In addition, Minn. Stat. ß 518.64, subd 2(b) (1998), states:

[i]t is presumed that there has been a substantial change in circumstances * * * and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if:
(1) the application of child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.

The ALJ found that there had been a substantial change in circumstances which rendered the existing order unreasonable and unfair because (1) motherís average net monthly income had increased from $1,073 at the time of the 1998 order, to $1,207 (after deducting overtime and incentive pay no longer available), (2) although father was physically unable to continue his previous employment, his net income had increased from $1,086 to $1,160, and (3) fatherís monthly expenses had increased from $2,788 to $3,240. Although no specific finding was made in regard to the childrenís expenses, the ALJ noted that the cost of medical and dental coverage for the children had risen to $110 per month (from $66 at time of the 1998 order). See Marden v. Marden, 546 N.W.2d 25, 29 (Minn. App. 1996) (not necessary to separate childrenís needs from custodial parentís needs where childrenís expenses are included in custodial parentís family expenses).

Pursuant to Minn. Stat. ß 518.551, subd. 5 (1998), the ALJ then calculated motherís child support obligation at $410 per month, but deviated downward $110 from the guidelines figure based on continued payment of marital debt as set forth in the 1998 order, although the ALJ was not confident that the circumstances continued to exist. In the amended order, the ALJ calculated motherís guidelines support obligation to be $362 per month and granted a $62 downward deviation from the guidelines amount. Accordingly, the guidelines support obligation calculated either new order was at least $50 and 20% higher than the $211 per month ordered in 1998, above the statutory threshold required to establish that a substantial change of circumstances existed. In addition, mother failed to rebut the statutory presumption that the 1998 support order was unreasonable and unfair.

After review of the record, we conclude that the ALJís finding of substantial change in circumstances necessitated modification to motherís child support obligation.

b. Deviation

Mother argues that the $111 per month downward deviation from the guidelines support amount granted her in the 1998 order on the basis of her continued debt load should continue indefinitely because no provision was made for it to end at a specific time, and that decision was not appealed. By notice of review, father argues that the ALJ erred in granting mother any downward deviation from the guidelines amount.

In determining whether to deviate downward from the child support guidelines, courts may consider private debts of the obligor only if:

(2) the court determines that the debt was reasonably incurred for necessary support of the child or parent or for the necessary generation of income. * * * ; and
(3) the party requesting a departure produces a sworn schedule of the debts, with supporting documentation, showing * * * , the amount of the original debt, the outstanding balance, the monthly payment, and the number of months until the debt will be fully paid.

Minn. Stat. 518.551, subd. 5(d).

Under Minn. Stat. ß 518.551, subd. 5(i), the guidelines are a rebuttable presumption in all cases. Therefore, to the extent mother was seeking a deviation from the guidelines, she had the burden of proving the propriety of the requested deviation by providing the documentation required by the statute. See Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) (stating burden of proof for obtaining deviation from guidelines is on party seeking deviation); see generally Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (party "cannot complain" when his failure to provide documentation leads, at least in part, to denial of his request for support modification).

Although, at the May 6, 1999, hearing, mother provided no additional supporting documentation as to the amount that had been paid on the debt, or the number of payments remaining, father did not object or raise lack of documentation as an issue. See Thiele v. Stitch, 425 N.W.2d 580, 582 (Minn. 1988) (appellate court will generally not consider issues not presented to the court below). In her March 27, 1999, affidavit, mother stated that she had refinanced the debt twice and was presently making lower monthly payments than at the time the deviation was originally granted.

After review of the record, we conclude that it was within the discretion of the ALJ to continue mother's downward deviation from guidelines support, based on prior documentation, and that the ALJ did not abuse its discretion in reducing motherís downward deviation from $111 to $62 per month.

c. Imputed Income

Mother argues that the ALJ erred in calculating her child support obligation on the basis of imputed income.

Pursuant to Minn. Stat. ß 518.551, subd. 5b(d) (1998), if a court finds that a support obligor is voluntarily underemployed, it shall set the support obligation based on a determination of imputed income.

The ALJ found that mother had voluntarily terminated her previous full-time employment. When questioned by the ALJ, mother admitted that she was not seeking other part-time employment to supplement her income. Finding that mother was a bright and educated woman capable of full-time employment to earn income commensurate with her skills, the ALJ imputed motherís income based on her previous full-time salary.

We conclude that the record supports the ALJís finding of voluntary underemployment and consequent imputation of income based on motherís ability to work.

II. Attorney fees

Mother contends that the ALJ erred in denying her request for attorney fees incurred in the motion proceedings.

"Generally, the award for attorney fees [based on Minn. Stat. ß 518.14] lies in the discretion of the court." Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987), (citing Davis v. Davis, 306 Minn. 536, 538, 235 N.W.2d 836, 838 (1975)). On appeal, we will not reverse an "award or denial of attorney fees absent an abuse of discretion." Pfleiderer v. Pfleiderer, 591 N.W.2d 729, 733 (Minn. App. 1999) (quoting Becker v. Alloy Hardfacing & Engíg Co., 401 N.W.2d 655, 661 (Minn. 1987)).

In considering a motion for a modification of child support, a

court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:
(1) that the fees are necessary for the good-faith assertion of the partyís rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Minn. Stat. ß 518.14, subd. 1 (1998).

The ALJ denied motherís motion for attorney fees in part because father did not have the ability to contribute. The ALJ found that fatherís net monthly income was currently $1,160, and the monthly living expenses for himself, his wife, and the two children totaled $3,240, an increase from $2,788 at the time of the 1998 order. The ALJ also based its denial on a finding that mother had not been forthcoming in regard to her change in income. In addition, the record does not reflect that mother presented a personal affidavit or affidavit of counsel listing attorney expenses. See Currey v. Currey, 393 N.W.2d 683, 686-87 (Minn. App. 1986) (in view of lack of record on documentation, trial courtís failure to award attorney fees was not abuse of discretion).

We conclude that the ALJ did not abuse its discretion in denying mother an award of attorney fees.

Affirmed.