This opinion will be unpublished and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

C6-01-2169

 

 

State of Minnesota

Regarding the Parties:

Jennifer L. Englin,

Respondent,

 

vs.

 

Robert F. Swenson,

Appellant.

 

 

Filed June 4, 2002

Affirmed
Klaphake, Judge

 

Douglas County District Court

File No. FX9650101

 

 

Christopher D. Karpan, Douglas County Attorney, Joel G. Paschka, Assistant County Attorney, Douglas County Courthouse, 305 Eighth Avenue West, Alexandria, MN  56308 (for respondent)

 

Jennifer Englin, 609 Russell Street, Willmar, MN  56201 (respondent pro se)

 

John Hugh Gilmore, Gilmore Law Office, 64 West Delos Street, St. Paul, MN  55107-1107 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Robert Swenson challenges a decision by a child support magistrate denying his motion to modify his child support obligation based on his status as a full-time law student.  Respondent Douglas County is involved in this case for support enforcement; respondent Jennifer Englin, the custodial parent, is pro se and has not filed an appellate brief.  Because the magistrate did not abuse her discretion in finding that appellant’s voluntary decision to attend law school full-time was insincere and did not represent a bona fide career change that would preclude imputation of income to appellant, we affirm the magistrate’s denial of appellant’s motion to reduce his child support obligation.

D E C I S I O N

            Because appellant did not seek review of thechild support magistrate’s decision, our review is limited to determining whether the evidence supports the findings and whether the findings support the conclusions and the judgment.  Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001).  The decision to modify child support “lies within the broad and sound discretion” of the magistrate, and this court may reverse “only where it finds a clearly erroneous conclusion that is against logic and the facts on record.”  Gilbertson v. Graff, 477 N.W.2d 771, 773 (Minn. App. 1991) (citation omitted).  The party seeking modification has the burden to establish that a substantial change in circumstances has occurred.  Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996). 

            If an obligor has no or nominal income due to unemployment or underemployment, the obligor may move for a reduction in child support on the ground of substantially decreased earnings that make the prior child support order unreasonable and unfair.  See Minn. Stat. § 518.64, subd. 2(a) (Supp. 2001).  If, however, “the court finds that a parent is voluntarily unemployed or underemployed * * *, support shall be calculated based on a determination of imputed income.”  Minn. Stat. § 518.551, subd. 5b(d) (2000).

            Here, it is undisputed that appellant’s decision to quit his full-time job and enroll in law school full-time was “voluntary.”  At any time, he could resume working full-time by either discontinuing his education or by attending law school on a part-time basis, as he admitted is done by many of his classmates.  Cf. Franzen v. Borders, 521 N.W.2d 626, 628-29 (Minn. App. 1994) (refusing to impute income to incarcerated obligor, who has no opportunity for release until sentence is served, even though crime was intentional or willful).

            Thus, the critical issue is whether the child support magistrate properly imputed income to appellant.  A court cannot impute income if an obligor’s voluntary unemployment or underemployment is “temporary and will ultimately lead to an increase in income” or if it “represents a bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child.”  Minn. Stat. § 518.551, subd. 5b(d).

            The child support magistrate concluded that appellant failed to show that his “change in careers [was] sincere,” given his poor history of paying child support, his failure to establish that a law degree would “lead to an increased income” so as to benefit the child, and the fact that he “had other options available that would have less of an impact on the child,” such as attending law school on a part-time basis and continuing to work as a bill collector.  On this record, we assume that the magistrate considered appellant’s choices to have been made in bad faith and rejected his claims that his decision was a bona fide attempt to increase his income.  Cf. Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (inferring support obligor’s bad faith on clear record).  We therefore conclude that the magistrate did not abuse her discretion.  Cf. Curtis v. Curtis, 442 N.W.2d 173, 179 (Minn. App. 1989) (affirming district court’s finding of “bad faith” and imputation of income to obligor, where evidence showed that he quit ten-year job only one month after divorce, failed to prove that he quit for medical reasons, immediately entered vocational school without attempting to obtain alternative employment, and failed to show that his additional training would necessarily result in increased income).

            We further conclude that the magistrate did not abuse her discretion in imputing income to appellant at the same level that he was making at his last full-time job.  By definition, 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.

 

Minn. Stat. § 518.551, subd. 5b(d); see Kuchinski v. Kuchinski, 551 N.W.2d 727, 728 (Minn. App. 1996). Under appropriate circumstances, a court may consider an obligor’s prior income to determine the obligor’s current ability to pay support.  Darcy v. Darcy, 455 N.W.2d 518, 522 (Minn. App. 1990).

            Here, appellant acknowledged that he could have chosen to go to law school part-time and that he could find a job that would pay him $8.00 per hour, basically what he was previously earning as a bill collector.  This evidence is sufficient to support the magistrate’s income imputation of $1,103 per month to appellant and continuation of his guidelines child support obligation.

            We therefore affirm the decision of the child support magistrate denying appellant’s motion to reduce his child support obligation.

            Affirmed.