This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-2090

 

Renville County, petitioner,

Denise Jo Weidner, f/k/a Denise Jo Hanson,

Appellant,

 

vs.

 

Eric Gene Hanson,

Respondent.

 

Filed June 10, 2003

Affirmed in part as modified and reversed in part

Toussaint, Chief Judge

 

 

Renville County District Court

File No. FX99140

 

David Jon Torgelson, Renville County Attorney, P.O. Box D, Olivia, MN 56277 (for petitioner Renville County)

 

Ronald R. Frauenshuh, Jr., 129 N.W. 2nd Street, Ortonville, MN 56278 (for appellant)

 

Eric Gene Hanson, Box 151, Renville, MN 56284 (pro se respondent)

 

††††††††††† Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

††††††††††† Appellant challenges the district courtís denial of petitionerís petition to modify respondentís child-support obligation.† Because we conclude that there was a substantial increase in respondentís income rendering the support order unreasonable and unfair, we affirm in part as modified and reverse in part.†

FACTS

††††††††††† In 1999, appellant Denise Jo Weidner and respondent Eric Gene Hanson entered into a marital-termination agreement (MTA).† The district court accepted the agreement and ordered the partiesí marriage terminated in July 1999.† Pursuant to the agreement, the parties had joint legal custody of the partiesí three children.† Appellant was granted physical custody of two children, and respondent was granted physical custody of one child.† The MTA set respondentís child-support obligation at $500 per month.† In April 2001, this figure was increased to $533, due to a cost-of-living adjustment.

††††††††††† In November 2001, Renville County moved for modification of respondentís child-support obligation.† The county presented an affidavit of a child-support officer, which stated that appellant was unemployed and was in receipt of Medical Assistance.† Furthermore, the affidavit stated that respondentís net income had increased from $2,000 per month to $2,949 per month, and provided an estimated guideline support amount of $688 per month.

††††††††††† The district court heard arguments in December 2001.† It denied the countyís motion because the county had failed to produce any evidence regarding appellantís income.† Respondentís support obligation remained $533 per month.†

††††††††††† An appeal of the district courtís order denying modification was filed with this court in March 2002.† This court determined that the countyís proposed support payment of $688 was erroneous on its face, because it was determined for three noncustodial children rather than two.† The case was remanded to the district court to recalculate, and reconsider modifying, respondentís child support obligation.

††††††††††† On remand, the district court reiterated that appellant had not established that she was unemployed or receiving public assistance and imputed to her a net monthly income of $1,004.25.† After recalculating respondentís presumptive child-support obligation and applying appellantís imputed income, the district court arrived at a child-support obligation of $633.70 for respondent.[1]† However the district court declined to modify support, stating that the difference between the new figure and that in ďthe previous orderĒ did not qualify as a presumed substantial change in circumstances under Minn. Stat. ß 518.64, subd. 2(b) (2002).† This appeal follows.†

D E C I S I O N

††††††††††† Appellant contends that the district court erred by imputing income to her despite clear evidence that she was unemployed and receiving public assistance.† A district court's determination of income for child-support purposes is a question of fact that this court will not set aside unless it has no reasonable basis in fact and is clearly erroneous.† State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).† In determining if findings of fact are clearly erroneous, we view the record in the light most favorable to the district court's findings.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn.App.2000).†† District courts, held to the same standard as child-support magistrates, enjoy broad discretion in imputing income.† See Putz v. Putz, 645 N.W.2d 343, 353-54 (Minn. 2002) (child support magistrate has broad discretion in imputing or not imputing income); Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000) (district court decisions outside expedited child-support process are held to same standard as decisions of child-support magistrate).† Thus, we review this matter for an abuse of discretion.† See Murphy v. Murphy, 574 N.W.2d 77, 82-83 (Minn. App. 1998) (applying abuse-of-discretion standard of review to child support order based on imputed income).

††††††††††† When calculating child support, the district court may impute income to an obligor upon finding that the party is voluntarily unemployed or underemployed.† Minn. Stat. ß 518.551, subd. 5b(d) (2002).† It is presumed that an obligor is not voluntarily unemployed or underemployed if he or she is receiving public assistance under section 256.741 of the Minnesota Statutes.† Id. subd. 5b(e).

††††††††††† If there is insufficient evidence on which to rely in determining income or to impute income, the court may calculate income based on full-time employment of 40 hours per week at 150% of the state or federal minimum wage, whichever is higher.† Id.† Here, after finding that the county had not submitted sufficient evidence that appellant was involuntarily unemployed, the district court utilized the formula as set out in section 518.551, subdivision 5b(e) and arrived at an imputed net monthly income of $1,004.25.† After multiplying this amount by the statutory percentage for one noncustodial child (25%), and accounting for taxes, the district court set appellantís support obligation at $251.06 (the district court rounded down to $251).† This amount was subtracted from the amount owed by respondent according to the guidelines, $884.70, to set respondentís presumed support obligation at $633.70.†

† ††††††††† Based on the record before this court, we conclude that the district court did not abuse its discretion in determining that insufficient evidence as to appellantís income or receipt of public assistance was submitted.† Therefore, the district court did not err by imputing income in conformity with the statute.† We affirm the district courtís findings as to the partiesí respective incomes and presumptive support obligations.

††††††††††† The district court, however, refused to modify respondentís obligation from $533 per month to $633.70 per month, stating that the difference did not constitute a statutory presumed substantial change in circumstances.† See Minn. Stat. ß 518.64, subd. 2(b) (2002) (statute establishes presumed substantial change of circumstances when application of guidelines to current circumstances results in difference of at least 20% and $50.00 from current support order).† We note that section 518.64, subdivision 2(b), merely provides for a presumption that, if established, the movant proceeds with in her favor, but is not determinative.† The district courtís reliance on appellantís failure to establish this presumption alone was an abuse of discretion.

††††††††††† When deciding whether or not to modify child support, the district court must determine if a substantial change in circumstances has occurred that makes the original award unreasonable and unfair.† Minn. Stat. ß 518.64, subd. 2 (2002); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (noting dual burden on movant to show substantial change and that change renders original award unreasonable and unfair).† Because the district court ended its inquiry by concluding that appellant did not establish section 518.64, subdivision 2(b)ís substantial-change-incircumstances presumption in her favor, without proceeding to find that no substantial change in circumstances had occurred to make the current order unreasonable and unfair, we reverse the district courtís decision not to modify respondentís child-support obligation.

††††††††††† Because we conclude that respondentís 47% increase in income constitutes a substantial change in circumstances, using the figures as found by the district court, we modify the existing support obligation to conform to the state child-support guidelines.† Accordingly, respondentís monthly support obligation is set at $633.70.

††††††††††† Affirmed in part as modified and reversed in part.

 



[1] $884.70 (respondentís support obligation for two children), minus $251 (appellantís obligation for one child), equals $633.70.