This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
In re: Dakota County, petitioner,
Tonya Shark n/k/a Tonya Marschinke, petitioner,
Michael E. Johnson,
Dakota County District Court
File No. F4892919
Tonya Marschinke, 5365 129th Street North, Hugo, MN 55038 (pro se respondent)
Michael E. Johnson, 618 Price Avenue, Maplewood, MN 55117 (pro se appellant)
Considered and decided by Minge, Presiding Judge, Toussaint, Chief Judge, and Willis, Judge.
On appeal in this proceeding for modification of child support, appellant father argues pro se that the child-support magistrate (CSM) should have reduced his child support. Specifically, appellant argues that the CSM abused her discretion by (a) finding that he is voluntarily underemployed and thereby imputing income to him; (b) failing to consider all of the facts relevant to his motion; and (c) acting inconsistently with an order that the CSM previously issued in a separate proceeding reducing support for appellant’s other child. Because we conclude that the CSM did not abuse her discretion, we affirm.
Appellant Michael E. Johnson and respondent Tonya Shark are the parents of 15-year-old K.S.J., the child whose support is at issue here. Johnson and another woman are the parents of eight-year-old B.P. Until August 2001, Johnson worked one full-time job and one part-time job, both in the health-care field. In late August 2001, Johnson quit his full-time job so he could return to school full-time to earn his nursing degree and to become a registered nurse.
After quitting his full-time job and returning to school, Johnson moved for reduction of his child-support obligations for both B.P. and K.S.J. The two petitions were considered independently by the same CSM. On January 27, 2002, the CSM granted Johnson’s motion to modify support for B.P. The CSM found a “substantial change in circumstances which renders the existing order unreasonable and unfair due to the [o]bligor’s decrease in income due to his entry into college.” The CSM also found that Johnson’s decrease in net income was the result of (1) “the deduction for the child support obligation for [K.S.J.]” and (2) a substantial increase in the cost to Johnson of insurance. The CSM accordingly reduced Johnson’s support obligation for B.P. from $306 to $121 per month.
The hearing on modification of support for K.S.J. was held on February 5, 2001. The CSM found a substantial change in circumstances due to Johnson’s status as a full-time student. But the CSM also found that there was no evidence that Johnson would have an increased income upon completing his nursing degree and that even if Johnson’s income were to increase, K.S.J. would not benefit from any increase because she will then be more than 18 years old. Finally, the CSM found that Johnson did not meet his burden of showing that his decision to enter school full-time was a good-faith effort calculated to increase his support to K.S.J. As a result, the CSM denied Johnson’s motion to modify support for K.S.J.
Johnson appeals directly from the CSM’s order denying his motion for child-support modification for K.S.J.
Generally, modification of child support requires a moving party to show a substantial change in circumstances and that the change renders the existing support obligation unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (2002); Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996). Appellate courts recognize the district court’s “broad discretion” in support matters and will not alter a district court’s decision unless the district court abused that discretion by resolving the matter in a manner that is “against the logic and the facts on record.” Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quotation omitted). When reviewing a CSM’s order, this court applies the same standard of review as we would apply to a district court’s order. Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).
Because Johnson appeals directly from the CSM’s order, our scope of review is limited. Under Minn. R. Gen. Pract. 378.01, a party can appeal directly from a CSM’s order without first moving the district court for review, but when a party does so, our review is limited to whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001).
The CSM found that Johnson’s return to school is a substantial change in circumstances. But the CSM imputed income to Johnson and thus denied Johnson’s motion to modify his support obligation, implicitly finding thereby that Johnson failed to show that the change in circumstances rendered the existing support obligation unreasonable and unfair. Johnson argues the CSM “misunderstood” his situation and that he cannot attend school full-time and work two jobs. Johnson’s argument is essentially a challenge to the CSM’s determination that he is voluntarily underemployed.
The calculation of child support shall be based on imputed income when a court determines that a parent is voluntarily unemployed or underemployed. Minn. Stat. § 518.551, subd. 5b(d) (2002). A parent is considered voluntarily unemployed or underemployed if the parent fails to show
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.
Id. Imputed income is
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.
Here, the CSM found that there was no evidence that Johnson’s “schooling will in fact lead to income greater than that he voluntarily gave up.” The CSM also found that Johnson had not demonstrated that quitting his job and becoming a full-time student was a “good faith effort that is calculated to increase his support to this child,” in other words, Johnson had not shown that he made a bona fide career change that outweighed the adverse effect of his diminished income on K.S.J. Thus, the CSM found that Johnson had not met his burden of showing that he was not voluntarily underemployed.
A review of the record shows that the CSM correctly noted that Johnson had submitted no evidence to show that completion of his nursing degree would lead to a higher income. On appeal, Johnson submitted an Internet document that contains salary information for nurses. Because this document was not submitted to the CSM, it is not part of the record on appeal. See Minn. R. Civ. App. P. 110.01 (limiting appellate record to papers and exhibits filed in district court and transcript of proceedings). Not only is the document outside the record, but also it would not provide the basis for a reversal if it were properly before us. As the CSM found, even if Johnson had submitted evidence that his nursing degree would lead to higher income, K.S.J. will not benefit from that increased income because she will be more than 18 years old when Johnson completes his degree. Accordingly, we conclude that the CSM did not abuse her discretion by determining that Johnson was voluntarily underemployed and imputing income to him.
Johnson argues that the CSM failed to consider his plan to support his daughter even after she turns 18 and his legal support obligation ends. Johnson also argues that the CSM failed to consider that Johnson is serving as a positive role model by returning to school. Because these arguments do not relate to whether the evidence supports the findings of fact or whether the findings support the conclusions of law, we need not address them. But we note that Minnesota law sets forth the factors a court is to consider when awarding or modifying child support. Minn. Stat. § 518.551, subds. 5, 5b (2002). The statute does not identify returning to school, promising to pay increased support later, promising to provide support for an emancipated child, setting a positive example, or being a role model by pursing higher education as considerations for a court in deciding a motion to modify child support.
Next, Johnson argues that the CSM abused her discretion because her denial of modification of child support here is inconsistent with her earlier modification of support for Johnson’s younger child. This argument, too, does not relate to whether the evidence supports the findings or to whether the findings support the conclusions. In fact, consideration of this argument would require us to take judicial notice of the CSM’s order in a separate proceeding. It is, therefore, outside of our narrow scope of review.
But even if we went beyond the applicable scope of review to examine the relationship between the two proceedings, the CSM’s orders are reconcilable based on the ages of the children involved. And we find no authority to support the proposition that a father who has two children by two mothers is entitled to a reduction in support for one child simply because he received a reduction in support for the other child.
The CSM’s denial of Johnson’s request for modification was based on a determination that Johnson was voluntarily underemployed with respect to K.S.J. In contrast, implicit in the CSM’s grant of a reduction in child support for B.P. is a finding that Johnson is not voluntarily underemployed with respect to B.P.
K.S.J. will not benefit from Johnson’s potential increased income; as the CSM found, K.S.J. will be emancipated by the time Johnson obtains his degree. Johnson maintains that he will voluntarily support K.S.J. even after she is emancipated, but as we have already noted, a promise of future voluntary support is not a basis for reducing current child support.
With respect to B.P., Johnson is not voluntarily underemployed because B.P. will presumably eventually benefit from Johnson’s potential increased income. B.P. will be 10 years old when Johnson receives his degree, and Johnson will continue to be obligated to support B.P. if and when Johnson begins to earn increased income as a result of his degree.
The dissent suggests that our decision “seems to preclude, as a matter of law, any attempt by support obligors to educationally, economically, or otherwise improve themselves when the period required for improvement exceeds the period that the child who is the subject of the obligor’s obligation is expected to receive support.” We believe that it does no such thing. First, Johnson is not precluded from improving himself. We simply affirm the CSM’s determination that Johnson is not entitled to a reduction in child support for a child who will realize no benefit from such an improvement of Johnson’s circumstances. Second, nothing in the record shows that Johnson cannot undertake to improve himself without a reduction of his support obligation for K.S.J. In fact, the record suggests the opposite: Johnson enrolled in school full-time before seeking a reduction in his support obligation for either of his children.
The CSM’s order here is consistent with the public policy of placing great importance on parents’ obligations to support their children. “The obligation of a father to support his progeny must take precedence over every consideration for himself not arising from the absolute necessities of self-sustenance.” State v. Fuerst, 283 Minn. 391, 392-93, 168 N.W.2d 1, 2 (1969).
MINGE, Judge (dissenting)
I respectfully dissent. Although I agree with the majority that in this proceeding the child support magistrate (CSM) had a basis in the record for its order, I would remand for two reasons. First, I believe the case merits further consideration due to the inconsistent orders of the same CSM in a 10-day period regarding what was essentially the same request by appellant. To be sure there are differences in the ages of the children, but the other factors are the same. Many of the bases for denial of modification of child support in this case were apparently accepted in the other case.
Second, the CSM disregarded appellant’s claim of increased earning capacity. Appellant asserted that a registered nurse could earn more than a licensed practical nurse. If the CSM found the record was inadequate on that claim, the CSM had the option to hold the record open to receive evidence regarding that claim and could have allowed the appellant the opportunity to provide such evidence. See Minn. R. Gen. Pract. 364.14 (allowing a CSM to “leave the record open and request or permit submission of additional documentation” at the conclusion of a hearing).
The majority upholds the CSM’s order based on the fact that K.S.J. will be more than 18 years old when appellant completes his degree and therefore will not benefit from any increased income. While there is facial appeal to this analysis, it is troublesome because it seems to preclude, as a matter of law, any attempt by support obligors to educationally, economically, or otherwise improve themselves when the period required for improvement exceeds the period that the child who is the subject of the obligor’s obligation is expected to receive support. Such an automatic and required rejection of support obligors’ attempts to better themselves is inconsistent with the inherently discretionary nature of child support determinations. See Putz v. Putz, 645 N.W.2d 343, 351 (Minn. 2002) (noting that jurisdiction in support cases is equitable in origin and that “the court’s ability to craft remedies in such cases is an outgrowth of inherent equitable powers” (citing Holmberg v. Holmberg, 588 N.W.2d 720, 724-26 (Minn. 1999)).
This is a pro se proceeding and that there is no appearance by any opposing party. The record indicates that neither the respondent nor Dakota County objected to appellant’s request before the CSM. This is not to say the appellant is therefore entitled to the relief he requests. However, it does indicate that appellant’s request merits more careful consideration than it appears to have received. There is certainly no indication that appellant was motivated by any narrow self-interest. The record indicates he is from a racial minority group, that he would be the first in his family to obtain a degree, that he recognizes that as a registered nurse he would be a role model for his children, and that he could better support them with this professional training. He has worked two jobs, paid his support obligation, and is committed to providing for his children.
I would remand the proceeding to the CSM to consider reconciling the proceedings for the two children and to consider allowing the appellant to provide information regarding the prospects for enhanced earning capacity from completion of the registered nurse program.