This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-688

 

In Re the Marriage of:
Timothy L. Hansen, petitioner,
Respondent,

vs.

 

 Virginia R. Hansen,
Appellant.

 

Filed January 23, 2001

Affirmed in part and reversed in part

Peterson, Judge

 

Clay County District Court

File No. F2991466

 

Timothy L. Hansen, RR 2, Box 38, Hawley, MN  (pro se respondent)

 

E. Jane Sundby, 200 South Eighth Street, Fargo, ND 58102 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Stoneburner, 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 establishing child support and a judgment for retroactive child support, appellant-mother Virginia R. Hansen argues that the child support magistrate abused his discretion by requiring her to pay retroactive child support despite finding that she lacked the ability to pay support during the relevant time period.  We affirm in part and reverse in part.

FACTS

            The parties’ marriage was dissolved in September 1997.  The dissolution judgment awarded physical custody of the parties’ child to respondent-father Timothy L. Hansen and reserved the issue of child support.  Mother has been residing in Charlotte, North Carolina, since the dissolution.

            In September 1997, father applied for nonpublic assistance child support services through Clay County.  In March 1999, Clay County initiated the administrative procedure to establish mother’s child-support obligation retroactive to September 1997.  Based on information that mother had a cosmetology license and that the mean income for cosmetologists in the southeastern part of the United States was $9.00 per hour, the county proposed imputing income to mother at the rate of $9.00 per hour.  Mother disagreed with the proposed order and requested a hearing.

            At the time of the hearing, October 21, 1999, mother was employed full time as a secretary earning a gross income of $250 per week.  Based on that employment, the child support magistrate calculated mother’s net monthly income to be $851 and, pursuant to the child-support guidelines, ordered her to pay 22% of her net income, which was $187 per month, in child support, beginning September 1, 1999.

            Regarding retroactive support, mother testified that during the marriage, she worked part time to help meet expenses but was primarily a homemaker.  She testified that she attended cosmetology school from September 1997 until September 1998 and that she did not work at all from September through December 1997.  In 1998, mother earned a gross income of $1,485 working part time for an American Legion Post.  Upon finishing school, mother began working as a cosmetologist for a hair salon, and earned a gross income of $1,556 from that employment in 1998.  Mother testified that she quit working in cosmetology because she was employed on a straight commission basis, so her income fluctuated, and she was unable to meet her monthly expenses.

            At the hearing, the magistrate and a child support officer for Clay County had the following discussion about imputing income to mother:

            THE MAGISTRATE:  * * * I gathered from taking a look at the proposed order that the county feels that this is a * * * voluntary underemployment case.  And yet we clearly have a case here where the obligor was attending school.  Could you please give me some details as to why the county feels this is an appropriate voluntary unemployment case?

 

            CHILD SUPPORT OFFICER: Your Honor, we were unaware that she was attending school until September of 1998 when she took her board exam.  We had no other further information.  I was informed that she had a license for cosmetology.  And so we imputed her income based on that information alone.

 

            * * * *

 

            THE MAGISTRATE:  * * * So as far as the county knew, she had a * * * cosmetology license for some period of time and was not making use of that license.

 

            CHILD SUPPORT OFFICER: That is correct.

 

            In a November 11, 1999, order, the magistrate made the following finding of fact:

            15.  For the twenty-four (24) month period preceding the commencement of this action, [mother] had the ability to pay support to [father] in the amount of $4,488.00, based upon her ability to earn net monthly income of at least $851.00.

 

            The November 11, 1999, order contains the following conclusion of law:

            2.  During the two years prior to the commencement of this proceeding, [mother] had the ability to contribute to the support of the minor child.

 

            The magistrate determined that mother owes father $4,488.00 for past support from March 1997 to March 1999 and granted judgment against mother in that amount.

            Upon review of the November 11 order, sua sponte,[1] the magistrate amended the findings of fact and conclusions of law.  In a February 18, 2000, amended order, the magistrate made the following finding of fact:

            15.  For the twenty-four (24) month period preceding the commencement of this action, [mother] had no ability to pay support to [father] because she had been attending school and was unemployed.

 

Without making any further findings relevant to the issue of retroactive support, the magistrate made the following conclusion of law:

            2.  During the two years prior to the commencement of this proceeding, [mother] did not have the ability to contribute to the support of the minor child.

 

But the magistrate did not change the determination that mother owes father past support.  Both the November 11, 1999, order and the February 18, 2000, order contain the following order:

            [Mother] owes $4,488.00 to [father] for past support from March 1997 to March 1999.  Judgment is granted against [mother] in the amount of $4,488.00.[2]

 

D E C I S I O N

            The district court has broad discretion in establishing child support, and its decision will be affirmed unless the court reached a clearly erroneous conclusion against logic and the facts on record.  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 Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000) (when reviewing child support magistrate’s order in expedited child support process proceeding, court applies same standard of review that would apply to order if it had been issued by district court judge in proceeding conducted outside expedited child support process).

            Mother concedes that she is liable to pay child support beginning in September 1999.  She does not dispute that the county was permitted to seek retroactive child support.  See Minn. Stat. §§ 256.87, subd. 1 (parent liable to reimburse county for public assistance for up to two years prior to commencement of support action), 256.741, subd. 1(a) (Supp. 1999) (defining public assistance).  But mother argues that the magistrate’s finding that she was unable to pay support during the two years preceding the commencement of this support action is inconsistent with the award of retroactive support.

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

            (d) If the court finds that a parent is voluntarily unemployed or underemployed or was voluntarily unemployed or underemployed during the period for which past support is being sought, 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.  Imputed income means the estimated earning ability of a parent 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.

 

            This statute expressly requires the court to find that an obligor is voluntarily unemployed or underemployed before imputing income.  See also Moylan v. Moylan, 384 N.W.2d 859, 860 (Minn. 1986) (child support award must be supported by detailed findings of fact).  The county presented this case to the child support magistrate as a voluntary unemployment or underemployment case.  The magistrate found in the original order that mother had the ability to pay support during the two years before the proceeding began based on her ability to earn $851.00 per month.  But the magistrate later amended this finding to say that mother had no ability to pay support during this period because she had been attending school and was unemployed.  Consequently, the amended order contains no finding that mother was voluntarily unemployed or underemployed and there was no basis for imputing income to mother.  Because there was no basis for imputing income to mother, there was no basis for the award of past child support.  We, therefore, affirm the child support magistrate’s order that requires mother to pay $187 per month in child support beginning September 1, 1999, and reverse the judgment for retroactive child support.

            Affirmed in part and reversed in part.



[1] There is no claim that the child support magistrate lacked authority to amend the order sua sponte.

[2]The references to March 1997 and March 1999 appear to be based on Minn. Stat. § 256.87, subd. 1 (1998), which provides:

 

The parent’s liability is limited to the two years immediately preceding the commencement of the action.

 

The magistrate found that mother was served with a proposed order on March 2, 1999.  Therefore, the two years immediately preceding commencement of the action would extend back to March 1997.  But the parties’ marriage was not dissolved until September 1997, and the county only sought support retroactive to September 1997.  The order does not indicate the basis for awarding retroactive support for months for which no support was sought.