This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-1572

 

In Re the Marriage of:

Thomas Alan Knutson, petitioner,

Appellant,

 

vs.

 

Ingrid Monica Knutson,

Respondent.

 

Filed March 21, 2000

Affirmed

Peterson, Judge

 

Ramsey County District Court

File No. DMF4942355

 

Michael C. Black, Michael C. Black Law Office, Ltd., 265 West Seventh Street, Suite 201, St. Paul, MN  55102 (for appellant)

 

Ingrid Monica Knutson, 10117 Mississippi Boulevard Northwest, Coon Rapids, MN  55433 (pro se respondent)

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

U N P U B L I S H E D    O P I N I O N

PETERSON, Judge

In this appeal from an order modifying child support, appellant-father argues that the child support magistrate erred by (1) finding that father was voluntarily underemployed; (2) imputing income to him based on his monthly expenses; and (3) finding a substantial change in circumstances.  We affirm.

FACTS

            The marriage of appellant-father Thomas Knutson and respondent-mother Ingrid Knutson was dissolved in 1995.  Pursuant to the parties’ stipulation, the dissolution judgment awarded primary physical custody of their minor child to mother and provided that:

Beginning November 1, 1995, [father] shall pay to [mother] as and for child support the sum of $100.00 per month, an amount that shall not be subject to cost-of-living adjustment while support remains at this level, nor shall it be subject to automatic income withholding, as these were voluntarily waived by [mother].  This child support payable in the amount of $100.00 per month shall remain in effect until either June 1, 1999, or [father] begins attending school less than three-quarters time and begins working more than 20 hours per week, whichever occurs first.  At that time, [mother] shall be entitled to move the court for a modification of child support in accordance with the Minnesota Child Support Guidelines then in effect.

 

At the time of dissolution, father was enrolled as a three-quarters-time student in a nursing program and worked up to 20 hours per week, earning $7.25 per hour.  Father also received $400 per month in gross rental income.  The court found that although the child support award was a downward deviation from the guidelines, the amount was reasonable based on father’s efforts to improve his employment prospects by continuing his three-quarters-time status as a nursing student.

            After being denied employment as a nursing assistant at Abbott Northwestern Hospital because he failed a background check, father dropped out of the nursing program.  Father testified at the child support modification hearing that he failed the background check due to a criminal conviction for fifth-degree assault but that he had passed earlier background checks despite the conviction.  After being denied employment by Abbott, father spoke to a dean in the nursing program, who advised him that he would not be able to obtain employment as a nurse because of his criminal record.

            After leaving the nursing program, father enrolled as a three-quarters-time student at a community college.  He expected to receive an associate’s degree in December 1999 and then planned to enroll in a four-year university to complete a bachelor’s degree in history.  Father testified that teaching was a possible career he could pursue with a history degree, but he had not yet spoken to his counselors about whether he also needed to obtain an education degree. 

            Father previously worked as a union painter and currently operates his own painting business.  In addition to the income from his painting business, father earns $6.95 per hour at a part-time job working fewer than 20 hours per week and receives $675 per month in gross rental income. 

In March 1999, mother filed a motion to modify child support.  Following an evidentiary hearing, a child support magistrate found that father was voluntarily underemployed and modified child support based on imputed income.  The child support magistrate ordered father to pay $424 per month for child support, the guidelines amount for a parent with one child and a net monthly income of $1,696.

D E C I S I O N

            The district court has discretion to modify a child support order, and its decision will be upheld unless the court resolves the matter in a manner that “‘is against logic and the facts on record.’”  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).  The same standard applies when this court reviews a child support magistrate’s order.  See Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990) (standard of review applicable to ALJ’s child support decision), review denied (Minn.  Oct. 18, 1990); Minn. Stat. § 484.702, subd. 2(b) (Supp. 1999) (authorizing appointment of ALJs to serve as child support magistrates).

1.         Minn. Stat. § 518.551, subd. 5b(d) (1998), provides:

            If the court finds that a parent is voluntarily unemployed or underemployed * * *, support shall be calculated based on a determination of imputed income.  A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment:  (1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child.

            Father argues that the child support magistrate misconstrued Minn. Stat. § 518.551, subd. 5b(d), as requiring a finding that he is voluntarily underemployed because he failed to prove that his part-time employment is temporary and will ultimately lead to an increase in income or represents a bona fide career change.  Citing Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1996), father argues that imputation of income is appropriate only if “the support obligor chose to be unemployed or underemployed and neither statutory condition applies.”  Father contends that the magistrate made no finding that he chose to limit his income and that there is no basis in the record for such a finding because the magistrate found that (1) he conducted himself in good faith in pursuing his education, (2) he supplied adequate verification to show that he was unable to obtain a nursing assistant job, (3) his intent to obtain a bachelor’s degree is an excellent goal, and (4) he was not eligible to return to work as a union painter.  

A finding of voluntary underemployment requires evidence of choice in the matter of underemployment.  Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998).  The child support magistrate found that father was capable of working full time but was working only part time because he was attending school three-quarters time.  Father does not dispute that he voluntarily chose to attend school and work part time, or that he is capable of working full time, or that he could obtain full-time employment if he were not attending school. 

Father did not voluntarily choose to end his pursuit of a nursing career.  But when he learned that a nursing career was no longer an option, rather than obtaining full-time employment, he chose to continue working part time so that he could continue attending school.  However, he did not demonstrate that his part-time work to attend school was temporary and would ultimately lead to an increase in income or represented a bona fide career change that outweighed the adverse effect of his diminished income on his child.

Father cites no evidence regarding his employment prospects upon completing a bachelor’s degree, other than his testimony that he could possibly work as a teacher.  His voluntary decision to enroll in another scholastic program after leaving the nursing program together with the absence of evidence regarding his employment prospects is sufficient to support the child support magistrate’s that he is voluntarily underemployed.

2.         Under Minn. Stat. § 518.551, subd. 5b(d), which applies when a parent is voluntarily underemployed, imputed income means the parent’s estimated earning ability

based on the parent’s prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent’s qualifications.

 

In addition, caselaw permits income to be imputed when actual income is impracticable to determine.  Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996).

            Father earns a gross income of $602 per month from his part-time employment.  The child support magistrate could not determine from father’s tax returns the amount of income father earned from his rental property and painting business but found that he did receive income from the property and the business.  Based on father’s claimed monthly expenses of $1,696 and the absence of evidence that father is unable to meet those expenses, the magistrate imputed a net income of $1,696 per month to father.  This determination is not an abuse of discretion.  See Roatch v. Puera, 534 N.W.2d 560, 565 (Minn. App. 1995) (upholding imputation of income based in part on lifestyle when self-employed obligor’s net income was difficult to calculate).

3.         A child support order may be modified upon a showing of a substantial change in a party’s earnings or in the needs of a party or the child, any of which makes the terms of the existing order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (1998).

It is presumed that there has been a substantial change in circumstances under paragraph (a) and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if:

            (1) the application of the 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.

 

Id., subd. 2(b).

             In finding a substantial change of circumstances making the existing child support order unreasonable and unfair, the child support magistrate relied on the presumption in Minn. Stat. § 518.64, subd. 2.  When the Minn. Stat. § 518.64, subd. 2(b), presumption applies, the party opposing modification of child support has the burden of presenting evidence to rebut the presumption.  See Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) (when presumption set forth in Minn. Stat. § 518.64, subd. 2(b) applied, obligor had burden of presenting evidence to support position that support should not be set according to guidelines based on obligor's current income). 

To rebut the presumption that the terms of the existing order were unreasonable and unfair, father presented evidence that he needed additional time to complete his schooling due to the delayed discovery that his assault conviction precluded a nursing career.  Father’s career plans after obtaining his history degree were indefinite.  Although he testified about plans to pursue a teaching career, he did not know whether a history degree alone would enable him to teach and had not consulted with an adviser about the matter.   

The child support magistrate found that although father’s plan to obtain a history degree and pursue a teaching career was an excellent goal, father had failed to establish a definite time period for completing his education.  In contrast, the dissolution judgment anticipated that father would complete his schooling by June 1, 1999.  Absent proof that father’s education plans will ultimately benefit his child, it is not unreasonable or unfair to require him to meet his full child support obligation while he pursues his education.  The child support magistrate’s finding of a substantial change in circumstances was not an abuse of discretion.

            Father also argues that the findings are inadequate to support the child support determination, but his argument assumes that the child support magistrate erred by imputing a net monthly income of $1,696 based on his lifestyle.

            Affirmed.