This opinion will be unpublished and

may not be cited except as provided by

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






Judith Marie Green, petitioner,





Wayne Orin Olson,



Filed July 11, 2000


Harten, Judge


Anoka County District Court

File No. F6-98-1426


Shari A. Jacobus, Jensen, Bell, Converse & Erickson, P.A., 1500 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for appellant)


Cathryn Young Middlebrook, Legal Assistance to Minnesota Prisoners, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Respondent’s child support obligation was modified because respondent is incarcerated.  Appellant challenges the modification.  Because we see no abuse of discretion, we affirm.


Appellant Judith Green and respondent Wayne Olson are the parents of a minor child.  Respondent’s child support obligation was $275 monthly at the time he was incarcerated.  The district court granted his motion to modify his child support obligation by reducing it to $0 during his incarceration.  Appellant challenges that modification.



            Modification of child support is within the trial court’s discretion and will not be reversed absent a clear abuse of discretion.  Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974).

            This court addressed modification of the child support obligation of an incarcerated obligor in Franzen v. Borders, 521 N.W.2d 626 (Minn. App. 1994).   Because “imputation of income to a support obligor under [Minn. Stat. § 518.551, subd. 5b(d)] is appropriate if the support obligor chose to be unemployed or underemployed * * * ”, the issue becomes whether “incarceration results in voluntary employment or underemployment.”  Id. at 629.  Franzen answered that question in the negative.

            [W]hile [the obligor] was [in prison], his incarceration was involuntary and he was not voluntarily unemployed or underemployed under Minn. Stat. § 518.551, subd. 5b(d).



            Franzen explicitly rejects appellant’s argument that imputation of income is proper when the obligor has been incarcerated for assault of the obligee.         

            The nature of the crime for which a support obligor is incarcerated is a factor considered in some foreign cases.  To adopt the distinction here, however, would be to make it not just a factor, but dispositive.  We will not do so, especially in light of [Minn. Stat. § 518.551, subd. 5b(d)] addressing the circumstances under which it is proper to impute income to a support obligor.  [E]xtending existing law is for [the] supreme court or [the] legislature, not [for the] court of appeals.


Id. (citation omitted); see also Lake George Park, L.L.C. v. IBM Mid-America Employees Fed. Credit Union, 576 N.W.2d 463, 466 (Minn. App. 1998) (“this court, as an error correcting court, is without authority to change the law”), review denied (Minn. June 17, 1998).

Appellant relies on Johnson v. O’Neill, 461 N.W.2d 507 (Minn. App. 1990), holding that if a child support obligor is incarcerated on an unrelated offense, the obligation should be based on his actual income, to argue that because respondent was incarcerated on a related offense, i.e. assault of appellant, his child support obligation should not be computed on actual income.  Logically, this argument is fallacious: a holding governing the result of incarceration on an unrelated offense does not lead to any conclusion on the result of incarceration on a related offense.

Moreover, Johnson holds that “incarceration is usually an involuntary condition that justifies reduction in child support obligations.”  Johnson, 461 N.W.2d at 508 (citation omitted) quoted in Franzen, 521 N.W.2d at 629.  Franzen explicitly declined to overrule Johnson.   Franzen, 521 N.W.2d at 630.  Here, as in Johnson, “it would strain reason to believe * * * that [respondent] volitionally sought incarceration to avoid his child support payments.”  Johnson, 461 N.W.2d at 508.

            The district court did not abuse its discretion in modifying respondent’s child support payment during incarceration.