This opinion will be unpublished and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

C4-00-2192

 

 

In re the Marriage of: Grecia L. Kochsiek, n/k/a Grecia L. Santana,

petitioner,

Appellant,

 

vs.

 

David P. Kochsiek,

Respondent.

 

 

Filed September 18, 2001

Affirmed in part; reversed and remanded in part; motion denied

G. Barry Anderson, Judge

 

Dakota County District Court

File No. F39310000

 

Sandra Connealy Zick, Esq., Tuzinski & Zick, L.L.C., 7050 Brooklyn Boulevard, Minneapolis, MN  55429 (for appellant)

 

Lynette M. Bledsaw, Esq., Chadwick and Mertz, P.A., 600 West 79th Street, Suite 210, P.O. Box 623, Chanhassen, MN  55317 (for respondent)

 

            Considered and decided by G. Barry Anderson, Presiding Judge, R.A. Randall, Judge, and Robert Schumacher, Judge.

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            On appeal from the district court’s amended order in a post-dissolution modification proceeding, appellant Grecia L. Kochsiek, n/k/a Grecia L. Santana, argues the court abused its discretion by (1) imputing income to her not supported by the record; (2) failing to make adequate findings regarding the parties’ incomes for purposes of determining child support; (3) reserving child support without making findings explaining the reservation, and by not awarding child support; and (4) ordering appellant to repay support payments she received before the modification motion was made, in violation of Minn. Stat. § 518.64, subd. 2 (2000).  Appellant also moved to strike portions of respondent David P. Kochsiek’s brief.  We affirm in part and remand for findings. 

FACTS

            The parties were divorced in 1993.  At that time, respondent was awarded physical custody of the parties’ three minor children, P.A.K., M.A.K., and J.L.K. 

            In 1996, by agreement of the parties, the district court granted appellant physical custody of the children.  A July 1996 order revised the custody agreement and amended the original judgment.  Respondent began paying child support. 

            The custody of the minor children was again addressed when the parties stipulated that respondent was to have physical custody of P.A.K. and M.A.K. and appellant was to have physical custody of J.L.K.  The parties stipulated to share legal custody of all three children.  A hearing was held on June 15, 2000, to resolve disputed issues of child support based on the new split-custody arrangement, retroactive child support, and attorney fees.  By order dated July 25, 2000, the district court allowed the modification of the custody arrangement and found that it was in the best interests of the children. 

            The district court found that appellant was voluntarily unemployed, and that, if she returned to work, she could earn $12.00 per hour.  The court reserved the issue of child support apparently because, under the split custody arrangement, each parent’s child-support obligation would offset the other’s.  The court found that M.A.K. had already been living with respondent since July 1999, and P.A.K. had been residing with respondent since November 1999.  Because of this, the court ordered appellant to repay the child support she had received since December 1, 1999. 

            Appellant brought a motion for amended findings on August 28, 2000.  A hearing was held on September 11, 2000.  On September 26, 2000, the court issued an order that reaffirmed its order of July 25, 2000, but allowed appellant to repay child support to respondent in installments rather than in a lump sum.  This appeal follows. 

D E C I S I O N

I.

            Appellant contends that the district court improperly imputed an income to her of $12.00 per hour.  But the district court enjoys broad discretion in imputing income.  See, e.g., Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998) (applying abuse-of- discretion standard of review to ALJ's setting child support on basis of imputed income). 

Where a parent is voluntarily unemployed, his or her child-support obligation is based on a determination of “imputed income,” which 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. 

 

Minn. Stat. § 518.551, subd. 5b(d) (2000).  The district court found that it was “undisputed that [appellant] has voluntarily chosen not to obtain gainful employment.” Appellant does not dispute this finding and affirmatively states that, “[a]ppellant does not contest the trial court’s finding that she is voluntarily unemployed.” 

            Appellant had last been employed at $12.00 per hour in 1996, four years earlier.  The district court’s finding regarding respondent’s potential income is consistent with the evidence in the record and is not clearly erroneous.  See Minn. R. Civ. P. 52.01 (district court findings of fact not set aside unless clearly erroneous); see also Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (noting appellate court must not reweigh evidence and find own facts in reviewing maintenance decisions). 

II.

            Appellant next contends that the district court failed to make adequate findings regarding the parties’ incomes for purposes of determining appropriate child-support payments. 

The [child support] guidelines * * * are a rebuttable presumption and shall be used in all cases when establishing or modifying child support.  If the court does not deviate from the guidelines, the court shall make written findings concerning the amount of the obligor’s income used as the basis for the guidelines calculation and any other significant evidentiary factors affecting the determination of child support.  If the court deviates from the guidelines, the court shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in paragraph (c) and how the deviation serves the best interest of the child * * * . 

 

Minn. Stat. § 518.551, subd. 5(i) (2000) (emphasis added). 

            Here, the district court made no findings concerning the parties’ income levels used in determining child support.  We remand for written findings because of the mandatory language of the statute. 

III.

            Appellant also challenges the district court’s reservation of child support.  “The district court enjoys broad discretion in ordering modifications to child support orders.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). 

            Respondent maintains that the reservation of child support here was appropriate because the parties’ mutual child support obligations were virtually identical and would have resulted in a net obligation of approximately $5 per month.  Appellant disputes this, arguing that respondent would owe her $381 of support per month.  Based on the record, it appears likely that the child support obligations will offset each other.  But under Sefkow v. Sefkow, 427 N.W.2d 203 (Minn. 1988), and related cases, as well as Minn. Stat. § 518.551, subd. 5(i), the district court must still make a determination as to the amount of the offset, if any.  We remand for additional findings. 

IV.

            Finally, appellant maintains that the district court abused its discretion when it ordered her to repay child support payments received after December 1, 1999.  The district court has broad discretion to set the effective date of a modified child support obligation.  Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997). 

            Generally,

[a] modification of support or maintenance * * * may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party * * *.

 

Minn. Stat. § 518.64, subd. 2(d) (2000).  Appellant contends that the district court was limited to making the child-support modification retroactive to the date of service, May 5, 2000, rather than to December 1, 1999. 

            But Minn. Stat. § 518.64, subd. 2(d) also provides that

modification may be applied to an earlier period if the court makes express findings that * * * the party seeking modification was precluded from serving a motion by reason of a significant physical or mental disability, a material misrepresentation of another party, or fraud upon the court and that the party seeking modification, when no longer precluded, promptly served a motion * * * .

 

Id., subd. 2(d) – (2)(d)(1) (2000) (emphasis added); Gully, 599 N.W.2d at 820-21.  Here, the district court made no such express findings and, therefore, we remand for additional findings. 

V.

            Appellant’s motion to strike material in respondent’s brief is denied because it pertains to material that is not germane to our decision. 

Affirmed in part; reversed and remanded in part; motion denied.