This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-816

 

 

In re the Marriage of :

Marsha Carol Danielson Borth, petitioner,

Respondent,

 

vs.

 

Verdell Fredrick Borth,

Appellant.

 

 

Filed April 1, 2003

Affirmed

Robert H. Schumacher, Judge

 

Carver County District Court

File No. F2961501

 

 

Alvin Larry Katz, Katz, Manka, Teplinsky, Due & Sobel, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)

 

Verdell F. Borth, 202 West 78th Street, Chanhassen, MN 55317 (attorney pro se)

 

 

Considered and decided by Schumacher, Presiding Judge, Willis, Judge, and Anderson, Judge.


U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant Verdell Fredrick Borth (father) contends the district court abused its discretion by denying his motion to modify his child support obligation after finding he was voluntarily unemployed. We affirm.

FACTS

On December 24, 1997, and March 3, 1998, the district court entered judgment and amended judgment dissolving the marriage of father and respondent Marsha Carol Danielson Borth (mother), granting joint legal custody of the parties' three minor children to mother and father, granting physical custody of the children to mother, and setting mother's maintenance obligation at $800 per month and father's child support obligation at $769 per month. Father's support obligation was and is based on an annual income of $36,000. Father was ordered to contribute to the child-care expenses as well.

On July 25, 2000, the district court heard the parties' motions on several matters. Mother moved the court for orders regarding property distribution, revising the visitation schedule, eliminating or reducing her maintenance obligation, and increasing father's support obligation. Father countered with motions to appoint a visitation expeditor, terminate his daycare contribution obligation, increase mother's maintenance obligation, and for other relief specific to certain personal property.

On September 19, 2000, father's position with his employer was eliminated. Father immediately notified the district court of his employment termination by letter and followed up with another letter on October 2, 2000, informing the court that he remained unemployed.

By order filed October 25, 2000, the district court denied mother's motions to decrease or eliminate her maintenance obligation and to increase father's child support obligation. The district court stated that it would consider father's letters but also stated that mother could readdress father's unemployment if she received information that father had misled the court. The court stated that it was considering the letters "based solely on the practicalities of the situation at hand."

The court's order then eliminated father's obligation to contribute to the child-care expenses and substituted an obligation to contribute to the cost of the children's activities. The court also ordered a cost-of-living adjustment to mother's maintenance obligation but declined to grant father's request to make maintenance permanent. As a result of these adjustments, the amount of mother's maintenance obligation essentially cancels out the amount of father's support obligation.

Father did not become re-employed, and on January 31, 2002, he brought a motion to decrease his child support obligation and increase mother's maintenance obligation. Father claimed that he was diligently seeking employment, but his opportunities were very limited despite his graduate and law degrees. Father claimed that his age and some medical concerns adversely affected his ability to secure employment. Father submitted a letter from a medical doctor stating that he suffers from sleep disorders and another letter from a psychologist stating that he suffers from depression. He is currently receiving treatment for these conditions.

By order filed February 26, 2002, the district court denied father's motion, concluding that father was voluntarily unemployed. The court noted father's evidence supporting his claimed problems but concluded that these problems did not prohibit him from securing gainful employment sufficient to meet the obligation that was based on an annual salary of $36,000, considering he is now receiving treatment for these medical conditions. The court also noted that the maintenance payments father received essentially cancelled out his child support obligation, and thus the support obligation is neither unreasonable nor unfair.

D E C I S I O N

The decision whether or not to modify child support is within the broad discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). The district court appropriately set forth the factors to consider when imputing income to a party higher than that reported by that party: (1) the obligor's ability to work; (2) the obligor's opportunity to find gainful employment; (3) the obligor's disposition and will to earn money and contribute a reasonable amount to the family support; and (4) the obligor's diligence in seeking employment. Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991); see also Minn. Stat. 518.551, subd. 5b(d) (2002). The court is not required to make a finding that the obligor is acting in bad faith with respect to the unemployment when setting child support. Walker v. Walker, 553 N.W.2d 90, 95 n.1 (Minn. App. 1996).

The district court concluded that father had not met his burden in demonstrating an inability to meet the support obligation in light of his extensive education and additional training and the income level on which the obligation was set - $36,000. In its accompanying order, the court made several important findings. The court found that father is intentionally unemployed despite the ability and opportunity to work. The court found "no credible testimony * * * that [father] is somehow mentally or physically unable to work a regular workday." The court did not find father credible, noting his claimed living expenses of over $6,000 per month as of December 2001 were "so far beyond the realm of reasonableness for a person that has been unemployed for 1-1/2 years that it begs credibility." The court simply did not believe father was putting forth his best effort to find some employment and deal with his child support obligation reasonably. Credibility determinations are for the district court, not this court, to make.

The record supports the findings below and reflects that the district court considered the evidence and applied the appropriate analysis when considering father's motion. Accordingly, the court did not clearly err in finding that father was voluntarily unemployed, nor did it abuse its discretion in ruling that the child support obligation was neither unreasonable nor unfair or in denying father's motion.

Affirmed.