This opinion will be unpublished and

may not be cited except as provided by

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







In Re the Marriage of:

Janice Carrie Severs,

Petitioner Below,




Paul Gene Severs,





Carver County, intervenor,




Filed October 9, 2001

Affirmed as modified
Klaphake, Judge


Carver County District Court

File No. FX8723013



Paul Gene Severs, 8435 Morgan Lane, Eden Prairie, MN  55347 (pro se respondent)


Michael A. Fahey, Carver County Attorney, Carol J. Mayer, Assistant County Attorney, Carver County Government Center, 600 E. Fourth Street, Chaska, MN  55318-2188 (for appellant)


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Amundson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Carver County Community Social Services (county) challenges the district court’s affirmance of a child support magistrate’s decision granting respondent Paul Gene Severs’ motion to modify his child support obligation.  Respondent, who appears pro se and has not filed a brief on appeal, moved to terminate or suspend his child support obligation for a period beginning on April 14, 2000, when he was incarcerated on federal criminal charges for failure to pay that child support.

            On appeal, the county argues that the district court erred by refusing to impute income to respondent during respondent’s period of incarceration, and by retroactively modifying his child support obligation to a time preceding service of his modification motion.  Because imputation of income assumes that an obligor has the ability to earn an income but chooses to be “voluntarily” unemployed, we affirm the district court’s refusal to impute income to respondent during his period of incarceration, even though he was incarcerated for criminal non-payment of support.  Because the county submitted a document that suggests respondent served his modification motion on June 30, 2000, his modification motion is retroactive only to that date and not to April 14, 2000, the date he began to serve his prison term.  We therefore affirm the district court’s order as modified.


            A district court “enjoys broad discretion in ordering modifications to child support orders.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (citing Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986)).  That discretion is abused only if the district court resolves the matter in a manner that is “against logic and the facts on the record.”  Id. (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).


            The county challenges the district court’s refusal to impute income to respondent while he was incarcerated.  See Minn. Stat. § 518.551, subd. 5b(d) (2000) (court may impute income to parent who is voluntarily unemployed or underemployed).  The county argues that affirmance of the district court’s decision will produce an absurd result not intended by the legislature and violate public policy by rewarding respondent for his criminal conduct in avoiding his child support obligation.  See Minn. Stat. § 645.16 (2000) (words of statute cannot be read literally so as to produce absurd result).

            Imputation of income assumes that an obligor has the ability to earn income, but voluntarily chooses not to do so in order to avoid a child support obligation.  Minn. Stat. § 518.551, subd. 5b(d).  The intent of the statute allowing imputation of income is not to punish an obligor; rather, it is intended to provide a way to ascertain an obligor’s ability to pay support, even when his or her actual income suggests inability.

            Thus, this court has repeatedly refused to impute income to incarcerated obligors, reasoning that the obligors do not “seek” incarceration even though their crimes are intentional or willful.  See, e.g., Franzen v. Borders, 521 N.W.2d 626, 628-29 (Minn. App. 1994) (obligor incarcerated for terroristic threats); Johnson v. O’Neil, 461 N.W.2d 507, 508 (Minn. App. 1990) (obligor incarcerated for crime unrelated to support obligation).  In Johnson, this court concluded that to impute income in such a situation would distort the doctrine of unjustifiable self-limitation of income and impose additional punishment.  461 N.W.2d at 508.

            The county insists that imputation of income here would not result in additional punishment because this case is more like one in which an obligor is found in civil contempt for nonpayment of support and is sentenced to jail.  As the county notes, support obligations in contempt proceedings are not necessarily suspended while the contemnor is jailed.  But an obligor is jailed for civil contempt only after a finding on ability to pay and an opportunity to get out of jail by satisfying certain purge conditions.  See Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996) (affirming contempt order that included purge condition permitting obligor to avoid jail by remaining in compliance with existing child support order).

            Here, although respondent was incarcerated because of his willful, criminal conduct in avoiding his support obligation, he had no opportunity to get out of jail until his sentence was complete.  Thus, unlike the situation involving an obligor who is found in civil contempt of court for nonpayment of child support, respondent’s incarceration was involuntary.  We therefore conclude that the district court did not abuse its discretion by refusing to impute income to respondent during his period of incarceration.


            By statute, retroactive modification of a child support obligation is limited to the 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).  Modification of a child support obligation is generally precluded prior to service of the motion.  See, e.g., Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn. App. 1995); Bjuntje v. Bjuntje, 511 N.W.2d 479, 482 (Minn. App. 1994).

            The county argues that respondent’s motion was not served until November 14, 2000, the date on which respondent finally satisfied the clerk of district court’s filing requirements.  The county’s position, however, is contradicted by a June 30, 2000 letter sent by respondent to the clerk.  The county included this document in the appendix to its brief.  On its face, this document shows that on June 30, 2000, respondent mailed the following documents to the clerk, with copies to Carver County Social Services and to his ex-wife:  (1) a notice of motion and motion to modify child support; (2) two affidavits in support of his motion; and (3) an affidavit of service by U.S. mail.  The county asserts that the clerk did not file respondent’s motion on that date and returned these documents to respondent due to “technical and procedural errors.”  Nevertheless, these documents provide sufficient evidence that respondent’s motion was “served” on the responding party on June 30, 2000, because that is the date on which copies of these documents were sent to the county and to respondent’s ex-wife.  See Minn. R. Civ. P. 5.02 (allowing service of motion to be made by mail).

            Thus, we affirm the district court’s decision to terminate or suspend respondent’s child support obligation, but only from June 30, 2000, the date he presumably mailed copies of his motion, through December 2000, when he was released from prison.

            Affirmed as modified.