This opinion will be unpublished and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

C4-00-281

 

In Re the Marriage of:

 

Pamela Jo Nelson, petitioner,

Respondent,

 

vs.

 

Philip Gary Nelson,

Appellant.

 

Filed December 5, 2000

Affirmed as modified

Shumaker, Judge

 

Sherburne County District Court

File No. F498511

 

 

Jennifer A. Beckman, Tera L. Lungstrom, Beckman & Steen, 14550 Excelsior Blvd., Suite 206, Minnetonka, MN 55345 (for respondent)

 

Richard J. Sheehan, Harvey & Sheehan, Ltd., One Corporate Center, Suite 555, 7401 Metro Blvd., Minneapolis, MN 55439-3033 (for appellant)

 

            Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant Philip Nelson appeals from a child support magistrate’s order denying his motion to modify child support.  He contends the magistrate abused her discretion in finding that he failed to show a substantial change in circumstances because he voluntarily quit his job in bad faith.  We affirm as modified.

FACTS

            For approximately 12 years, appellant Philip Nelson worked full-time as a self-employed carpet installer.  When he and respondent dissolved their marriage on May 24, 1999, the district court ordered Nelson to pay child support in an amount calculated on his earnings from carpet installation.

A few months later, Nelson discontinued his work as a carpet installer and moved for a modification of child support.  He contended that severe, chronic back pain prevented him from engaging in his occupation and that he had begun to work as a real estate sales agent at a significantly lower wage.

Nelson supported his motion with medical records and reports revealing that he has intervertebral disc pathology at three levels in his lower back.  He has a bulging disc at L4-5; a herniated disc at L5-6 with moderate nerve root impingement; and a severely degenerated disc at L5-S1.  Believing that carpet installation was Nelson’s second job, his physician reported:

I have recommended that he stop carpet laying since this is the second job he has, in addition to his real estate work. * * *  Long-term, the carpet laying would likely continue to aggravate his back problem.

 

Later, the physician corrected his misunderstanding that carpet installation was Nelson’s second job but repeated his recommendation that Nelson “avoid carpet-laying work on a long-term basis * * * .”

            The child support magistrate who heard Nelson’s modification motion found that he failed to show a substantial change in circumstances because he “acted in bad faith in voluntarily quitting the carpet installation business.”  She denied the motion.  Nelson challenges the magistrate’s findings that he voluntarily quit his job and that he acted in bad faith.

D E C I S I O N

            The Interim Expedited Child Support Process Rules

govern the procedure for all proceedings conducted in the expedited child support process, regardless of whether the presiding officer is a child support magistrate, family court referee, or district court judge.

 

Minn. R. Gen. Prac. 351.01.[1]  As the presiding officer in an expedited child support process proceeding, a child support magistrate has authority to establish, modify, and enforce child support.  See Minn. R. Gen. Prac. 351.03, subd. 1 (proceedings to establish, modify, and enforce child support in IV-D case must be conducted in expedited child support process), Minn. R. Gen. Prac. 360.02 (“child support magistrates have the powers and duties necessary to perform their role in expedited child support process”).  A child support magistrate’s authority to establish, modify, and enforce child support in the expedited child support process is comparable to a district court’s authority to establish, modify, and enforce child support.  Therefore, when reviewing a child support magistrate’s order in an expedited child support process proceeding, we will apply the same standard of review that we would apply to the order if it had been issued by a district court judge.

            The decision to modify a child support order “lies in the broad and sound discretion of the trial court, and an appellate court” will not reverse absent an abuse of that discretion.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  Such an abuse occurs when the trial court reaches “a clearly erroneous conclusion that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

            Child support may be modified if the moving party shows a substantial change in circumstances rendering the existing support award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (1998).  A substantial decrease in a party’s earnings can constitute a substantial change of circumstances.  Minn. Stat. § 518.64, subd. 2(a)(1)However, a party is not entitled to purposely create a decrease in earnings by voluntarily terminating his employment.  Goff v. Goff, 388 N.W.2d 28, 30 (Minn. App. 1986).  A voluntary reduction of earnings without good cause may not be used as a basis for a reduction of child support.  See Curtis v. Curtis, 442 N.W.2d 173, 177 (Minn. App. 1989) (courts differentiate between voluntary and involuntary termination of employment; voluntary termination is not sufficient reason to justify modification when court finds payor unjustly limits his income).

            The child support magistrate found that, despite the uncontroverted medical documentation of Nelson’s back problems, his contention that he could not do any carpet installation work was not credible.  The magistrate found that Nelson’s back problems have existed for seven years and that he continued nevertheless to install carpets.  When he had flare-ups of back pain, he was able to work daily but he took only smaller jobs.

            Neither did the magistrate believe Nelson’s testimony about his current earnings from real estate sales.  Nelson offered corroboration through his employer-girlfriend, a realtor, who testified that he assists her with sales and receives an annual salary of $15,000 but does not earn sales commissions.  Rather, she keeps the commissions.

            Nelson’s contention is that he can no longer work as a carpet installer.  Implicit in that contention is that he cannot even do the smaller jobs that previously enabled him to earn the income at the level upon which the child support award was based.  Because Nelson’s work history reveals that he could continue to do some carpet-laying in the past even with back pain, and because the medical records do not show that Nelson is currently unable to do smaller carpet-laying jobs, the magistrate properly concluded that Nelson had failed to show a substantial change in circumstances.  Without such a showing, Nelson does not qualify for a child support modification.  See Minn. Stat. § 518.64, subd. 2(a).  The magistrate did not err in this conclusion.

            The matter could have ended at this point, but the magistrate also decided that Nelson acted in bad faith in terminating his carpet installation work.  This finding is questionable.  The undisputed, objective medical evidence clearly reveals that Nelson has severe back problems of a nature that would likely disable him from the types of activities involved in carpet installation.  But because Nelson presented no actual medical testimony and relied instead on records that did not fully explain his current limitations, if any, he was not able to show to the magistrate’s satisfaction that he is presently disabled from all carpet-laying jobs.  We view this as a failure of adequate medical proof to support Nelson’s contention, but we do not view such failure as being tantamount to a showing of bad faith.

            Although the magistrate acted within her discretion in assessing Nelson’s credibility, there was no issue as to the credibility of Nelson’s physician and other medical personnel who diagnosed Nelson’s condition.  Thus, Nelson did prove all medical facts necessary to establish his disabling condition but failed to show by unambiguous medical evidence the current effects of that condition on his carpet-laying work.  On this record, we do not view the magistrate’s inference of bad faith as supportable.  Moreover, we see that inference as dictum because it is not dispositive of the motion.  Thus, we modify the magistrate’s decision by deleting her finding of bad faith and we affirm in all other respects.

            Affirmed as modified.



[1] The interim Expedited Child Support Process Rules, which were adopted as a separate set of rules by order of the Minnesota Supreme Court dated June 23, 1999, applied to this proceeding when it was before the child support magistrate.  By order of the Minnesota Supreme Court dated December 17, 1999, those rules were relocated to Rules 351 to 375 of the General Rules of Practice for the District Courts.