This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-137

 

In Re the Marriage of:
Ann M. Edwardson, petitioner
Respondent,

vs.

Stig Karl Edwardson,
Appellant.

 

Filed August 21, 2001

Peterson, Judge

Affirmed

 

St. Louis County District Court

File No. F895100442

 

James Perunovich, 402 East Howard Street, Suite 7, Hibbing, MN† 55746 (for respondent)

 

Andrew J. Phillips, Phillips Law Office, Ltd., 412 First Street South, Virginia, MN† 55792 (for appellant)

 

††††††††††† Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

††††††††††† Appellant father Stig Edwardson challenges the district courtís denial of an evidentiary hearing on his motion to modify custody and denial of his motion to modify child support.† We affirm.

FACTS

The marriage of father and respondent mother Ann Edwardson was dissolved in October 1995.† During the dissolution process, father moved to the Chicago area to work as a union carpenter, and at the time of the dissolution, he was working full time.† Pursuant to a stipulation, mother was awarded sole physical custody of the partiesí three children, and father was granted visitation and required to pay $950 monthly child support based on a stipulated $2,692.17 net monthly income.† Father was also required to pay $375 per month in temporary spousal maintenance.† Mother was experiencing psychological problems at the time of the dissolution and has continued to experience similar problems since the dissolution.

All three children have special needs that require a high degree of care.† Two of the children have spent substantial time in foster care because of their special needs.† In 1996, after returning to Minnesota for a short time to care for the children while mother was in treatment, father moved back to Minnesota.

After returning to Minnesota, father became a self-employed carpenter.† He does not have a union card that would permit him to seek union employment.† A March 3, 1997, order reduced fatherís child support to $473 while father was receiving unemployment compensation and $782 when father was employed.† This order was based on the partiesí agreement that when father was working, his anticipated net monthly income would be approximately $2,235.

In April 2000, mother moved to have spousal maintenance made permanent.† In response, father moved to modify child support and for temporary custody of the children as an alternative to placing them in foster care.† Father requested an evidentiary hearing on his motion.† In a June 6, 2000, order the district court denied fatherís motion for temporary custody because father failed to make a prima facie showing of a substantial change in circumstances and ordered a hearing regarding child support.† The hearing was held on October 12, 2000.† On October 10, 2000, father moved for an award of permanent physical custody.† A hearing on this motion occurred on November 7, 2000.† In a November 28, 2000, order, which combined the courtís determination of issues raised in the October 12 and November 7 hearings, the court denied fatherís motion for permanent physical custody, denied fatherís motion to modify child support, denied motherís motion to make maintenance permanent, and found that father ďfailed to make a prima facie case for [custody] modification.Ē† This appeal is from the November 28 order.

D E C I S I O N

1.†††††††† Child Custody

A district court has broad discretion in custody matters.† Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).† Appellate review of custody modification without an evidentiary hearing is limited to determining whether the district court abused its discretion.† Geibe v. Geibe, 571 N.W.2d 774, 777 (Minn. App. 1997).† The district courtís findings of fact must be upheld unless clearly erroneous.† Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).†

To obtain an evidentiary hearing on a modification motion, the moving party must establish, on a preliminary basis, facts sufficient to show a significant change of circumstances occurring since the time of the last custody order.† Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).† The significant change must endanger the childís physical or emotional health or impair the childís emotional development.† See Minn. Stat. ß 518.18 (d)(iv)(2000).

The party seeking a modification of custody must submit an affidavit asserting the facts on which the motion is based.† Minn. Stat. ß 518.185 (2000).† If the moving partyís affidavit does not allege facts that, if true, would establish sufficient grounds for a modification, the court need not grant an evidentiary hearing.† Roehrdanz, 438 N.W.2d at 690; Lundell v. Lundell, 387 N.W.2d 654, 657 (Minn. App. 1986); Taflin v. Taflin, 366 N.W.2d 315, 320 (Minn. App. 1985).

Father argues that the district court erred when it found that he failed to establish a prima facie case for custody modification.† The court must accept the facts in the moving partyís affidavits as true.† Geibe, 571 N.W.2d at 777.† In his affidavit, father alleged that a doctor who was treating one of the children recommended that the child enter a treatment program in Duluth and that to participate in the program, the child would have to be placed in a foster home in Duluth.† Father claims that mother refused to place the child in foster care when she learned that she would have to pay the foster parents one-third of the child support she received.† Father argues that mother endangered the child when she placed her financial concerns ahead of the childís need for treatment.

The affidavits father submitted do not allege facts that demonstrate endangerment. The allegations are conclusory and do not describe how motherís opposition to foster care creates conditions that will cause either physical or emotional harm.† Assuming that the allegations in the affidavits are true, as we must, we cannot tell what effect not being placed in foster care will have on the child.† Even if we agree with father as a general principle that placing financial concerns ahead of a childís treatment needs is inappropriate, the allegations in the affidavits do not support the conclusion that this child is endangered.† See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991)(stating legislature intended statuteís use of ďendangermentĒ to refer to a significant degree of danger).† The district court did not abuse its discretion when it determined that father did not establish a prima facie case that would allow him a hearing on his custody-modification motion.† Smith v. Smith, 508 N.W.2d 222, 227-28 (Minn. App. 1993) (affirming district courtís denial of evidentiary hearing because parent failed to allege significant endangerment and because his statements were too vague to support a finding of endangerment); see Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (affirming district courtís denial of evidentiary hearing where affidavit submitted to support motion to modify custody ďwas devoid of allegations supported by any specific, credible evidenceĒ).

2.†††††††† Child Support

††††††††††† Whether to modify a child-support obligation is within the district courtís discretion and an appellate court will not reverse for an abuse of discretion unless the district court resolves the matter in a manner ďĎthat is against logic and the facts on record.íĒ† Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).† The district court, however, must exercise its discretion within the limits set by the legislature.† Id.† Child support may be modified if the moving party shows a substantial change in circumstances that makes the existing award unreasonable and unfair.† Minn. Stat. ß 518.64, subd. 2(a) (2000).† The district court found that father was voluntarily underemployed and imputed income to him.† Then, based on the imputed income, the court determined that there had not been a substantial change in circumstances since March 3, 1997, when child support was last modified.

Father argues that the district court clearly erred by finding that he was voluntarily underemployed and by calculating his income without allowing for substantial time away from work to address the childrenís needs.† See Minn. R. Civ. P. 52.01 (stating district courtís findings of fact not set aside unless clearly erroneous).† The district court found that fatherís change in employment from a union carpenter to a self-employed carpenter constituted voluntary underemployment.† The court found that in 1998, father earned a gross income of $9,206 from self-employment, and in 1999, he earned $6,480.†

Minn. Stat. ß 518.551, subd. 5b(d) (2000), 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.† 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.†

 

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).†

††††††††††† Father testified that upon returning to Minnesota in 1996, he worked as a union carpenter, but he later gave up his union card and became a self-employed carpenter.† He testified that it was necessary for him to become self-employed because it is difficult to maintain union employment when he must take time off work to attend necessary meetings and therapy sessions related to his childrenís special needs.† Fatherís testimony was the only evidence submitted that indicated that his need to take time off work made it difficult to obtain union employment.† The district court did not explicitly state that it did not find fatherís testimony credible, but it appears that the court was not persuaded by fatherís testimony because the court found:

23.That according to Exhibit No. 1 submitted by [father], there is union employment for carpenters in this area at a gross taxable wage of $20.26 per hour.† According to said exhibit, the average man hours in 1999 was 1029 hours per member.† Said exhibit does not indicate how many of the 461 carpenters signed up with the union were working full time or part-time or for what periods of the year they worked.† The 1029 average man hours per member would suggest that each member was working only approximately halftime based upon yearly available work hours of 2080 hours based upon a 40-hour week for 52 weeks.† Even accounting for two (2) weeks of vacation, there still would be approximately 2000 hours available for work per year.† The Court does not find it credible that the union carpenters were only working halftime.† It is more likely that while some may have been working halftime, that there was full-time employment available for union carpenters.

24.A full-time union carpenter at $20.26 gross taxable wage per hour would earn a gross yearly salary of $42,140, comparable to [fatherís] gross income in 1995 at the time of the dissolution.[1]

25.Accounting for the fact that union carpenters may not work that many hours per year and further taking into account the special circumstances of [father], it would appear to this Court that over the course of the year, [father] would be available to work 30 hours per week which would equal a gross income of approximately $31,605 per year or $2,634 per month.† Reducing that by the allowable deductions, [fatherís] net monthly income through union employment could be approximately $2,100 per month.

26.The Court finds that [father], as a result of not currently holding a union card and further not advertising his business, has unreasonably limited his available income, and that income may be imputed to him.

 

These findings indicate that the district court did not find credible fatherís claim that he could not obtain union employment because he had to be available to meet his childrenís special needs.† They further indicate that when determining the income father could earn working as a union carpenter, the court did take into account the time that father must take away from work to attend to the childrenís special needs.† The $2,100 net monthly income imputed to father is not a substantial change from his $2,235 net monthly income when child support was last modified on March 3, 1997.† See Minn. Stat. ß 518.64, subd. 2(b)(1) (2000) (stating that it is presumed that a substantial change in circumstances exists and it is rebuttably presumed that the existing support obligation is unreasonable and unfair if application of child support guidelines to current circumstances would produce a support obligation that is at least twenty percent and at least $50 per month higher or lower than existing support obligation).

The district court did not resolve fatherís motion to modify child support in a manner that is against logic and the facts on record.† The court simply rejected fatherís claim that he cannot maintain employment as a union carpenter.

Affirmed.

 



[1] Father argues that there is no evidence that while working in Minnesota, he ever earned as much as he earned while working in Illinois.† We agree that the evidence demonstrates that fatherís income while working in Illinois was greater than his income in Minnesota, but this does not affect our decision because the income the district court imputed to father was based on the wage rate for union carpenters in northern Minnesota.