This opinion will be unpublished and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
In re the Marriage of:
Gretchen Ann Collver, petitioner,
Kelly Michael Collver,
Filed July 1, 2003
Affirmed in part, reversed in part, and remanded
Toussaint, Chief Judge
Anoka County District Court
File No. F3983957
Mary E. Drummer, Anderson, Dove, Freland and Van Valkenburg, P.L.L.P., 5881 Cedar Lake Road, Minneapolis, MN 55416 (for respondent)
David T. Johnson, 217 West James Street, Box 241, Paynesville, MN 56362 (for appellant)
Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Minge, Judge.
TOUSSAINT, Chief Judge
In this child-support dispute, appellant-father argues that (a) the record does not support the finding that father was voluntarily underemployed; (b) after ruling father to be voluntarily underemployed, the child support magistrate (CSM), in imputing income to father, should have considered the availability of jobs in the community where father lived; and (c) the CSM’s findings are inadequate to support its award of attorney fees to respondent-mother. We affirm the CSM’s determination that appellant was voluntarily underemployed, but we reverse and remand with regard to the imputation of income, and because there is no record support , we reverse the award of attorney fees.
On August 6, 2001, the Anoka County District Court ordered appellant-father Kelly Michael Collver to pay respondent-mother Gretchen Ann Collver $681 per month in child support, $122.47 per month for child-care expenses, and to provide medical insurance for his minor children. At that time, appellant was living in the Twin Cities and working at New Brighton-based Southern Printing, making $17.50 per hour.
Appellant later decided to move to Pennock, Minnesota, contending that if he did not move there, his current wife would divorce him. Appellant moved to Pennock in October 2001, and at some point before he moved, appellant’s insurance coverage for his children lapsed. After he arrived in Pennock, appellant began searching for a position in his field of printing. His search for employment extended from Willmar to St. Cloud. In February 2002, appellant began to work for the Paynesville Press at a salary of $10 per hour.
On June 6, 2002, appellant filed a motion to modify his child support obligations based upon his decreased income. An Anoka County CSM concluded that appellant was voluntarily underemployed in violation of Minn. Stat. § 518.551 (2002). The CSM imputed income to appellant at $17 per hour and ordered appellant to continue to pay his current obligations. In addition, the CSM awarded $1,000 in attorney fees, concluding that appellant unreasonably contributed to the length and expense of the proceeding by quitting his employment and by failing to notify respondent that insurance coverage for the children had terminated.
Appellant did not seek district court review of the CSM’s decision but instead appealed directly to this court.
If a party appeals directly from a CSM’s original decision without moving for district court review under Minn. R. Gen. Pract. 376.01, an appellate court’s scope of review is limited to determining whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Minn. R. Gen. Pract. 378.01 advisory comm. cmt.; see Kahn v. Tronnier, 547 N.W.2d 425, 428 (Minn App. 1996), review denied (Minn. July 10, 1996). An appellate court will not reverse the modification of child support absent an abuse of discretion. Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001); see Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000) (concluding that this court applies the same standard of review for orders from the CSM and district court).
CSM’s Finding of Voluntary Underemployment.
Appellant first argues that the CSM abused its discretion in finding that he was voluntarily underemployed. Under Minnesota law, a parent is not considered voluntarily underemployed
upon a showing by the parent 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.
Minn. Stat. § 518.551, subd. 5b(d) (2002). When considering whether a parent is voluntarily unemployed or underemployed, a court must be mindful of the strong policy to ensure that a child has adequate and timely economic support from their parents. Putz v. Putz, 645 N.W.2d 343, 352 (Minn. 2002).
The present facts are similar to those in Kuchinski v. Kuchinski, 551 N.W.2d 727 (Minn. App. 1996). In Kuchinski, the obligor parent moved from Minnesota to Kentucky because of that state’s improved career opportunities for her current husband. Id. at 728. Consequently, she terminated her employment in Minnesota and was unemployed in her new home of Kentucky. Id. She argued that even if she were employed, her income would be “less than half” of what she earned in Minnesota. Id. This court held that the record contained sufficient evidence to support the district court’s holding that the obligor was voluntarily unemployed under the statute. Id. at 728-29. But this court reversed with regard to the district court’s imputation of income, holding that the district court should have calculated the obligor’s potential income based upon “available jobs within the community” rather than her former residence in Minnesota. Id. at 729 (citing Minn. Stat. § 518.551, subd. 5b(d) (1994)).
Appellant argues that his current wife’s desire to move to Pennock left him with no choice in the matter, forcing him to obtain employment with less compensation. But under Kuchinski, appellant may be adjudicated voluntarily underemployed when a move based upon a spouse’s decision results in appellant’s lower income. Thus, the CSM did not abuse its discretion when it concluded that appellant is voluntarily underemployed under section 518.551.
Imputation of Income
If a district court concludes that an obligor is voluntarily unemployed or underemployed, it shall calculate support based upon a determination of imputed income. Minn. Stat. § 518.551, subd. 5b(d). Under the governing statute,
[i]mputed 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.
Id. For a district court to impute income, there must be evidence that the obligor had a choice in the matter of underemployment. Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998). The imputed income must be based on the potential income within the obligor’s community. Kuchinski, 551 N.W.2d at 729.
Appellant argues that even if the CSM correctly determined that he was voluntarily underemployed, it erred in imputing his income to the amount that he was making in the Twin Cities. He cites Kuchinski in arguing that the CSM should have calculated his potential income based upon available jobs within Pennock and the surrounding community. See id. In that case, this court reversed and remanded, directing the district court to receive additional evidence regarding child support and the appropriate imputed income, “including the availability of jobs in Kentucky, her new ‘community.’” Id.
Respondent attempts to distinguish Kuchinski by arguing that the obligor in that case was unemployed, whereas appellant here is underemployed and his income should be imputed based on what he is capable of earning.
But after a party is found to be unemployed or underemployed under section 518.551, a court’s imputation of income does not depend upon whether the party is unemployed or underemployed.
Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996).
Respondent next argues that where the Kuchinski obligor moved to a different state, appellant has remained in Minnesota—leaving him in the same “community” for the purpose of imputed income. Respondent points to this court’s prior holding that a district court may impute the income of a prisoner, whose in-prison income decreased because of his voluntary transfer of prison locations, to the higher earning capacity of his former location. Franzen v. Borders, 521 N.W.2d 626, 629 & n.1 (Minn. App. 1994). But Franzen is not applicable here because the prison system is an artificial environment in which geographic location does not alter the party’s status of being incarcerated in the same state penal “community.” Here, appellant has moved from a metropolitan area to a much smaller community more than 100 miles away.
We hold that appellant is no longer in the same community for the purpose of imputing income. To consider the Twin Cities and a smaller town more than 100 miles away to be in the same “community” stretches the common meaning of that term. See Webster’s Ninth New Collegiate Dictionary (1990) 267, (defining “community” as “an interacting population of various kinds of individuals * * * in a common location”); see also Minn. Stat. § 645.08(1) (2002) (if words are not defined in the statute, they are to be construed according to common usage). Thus, when the CSM imputed the amount of income, it should have considered the estimated earning ability for appellant’s new community, the area surrounding Pennock.
The only evidence of appellant’s potential income in his current community was appellant’s own testimony that print shops in the area may pay up to $13 or $14 per hour. Because this evidence is insufficient to demonstrate appellant’s actual earning potential in the area, we direct the CSM to receive additional evidence of appellant’s estimated earning ability based on the availability of jobs within his current community.
Award of Attorney Fees
A court may award conduct-based attorney fees “against a party who unreasonably contributes to the length or expense of the proceeding.” Minn. Stat. § 518.14, subd. 1 (2002). To make such an award, a district court must make specific findings showing authority for the award, including bad-faith conduct during litigation. Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001). An award of attorney fees will not be disturbed absent a clear abuse of discretion. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).
The CSM here awarded $1,000 in attorney fees, concluding that appellant unreasonably contributed to the length and expense of the proceeding by quitting his former employment and by failing to notify respondent that insurance coverage for the children had lapsed. But the CSM’s award was impermissibly based upon actions occurring prior to the litigation. See Geske, 624 N.W.2d at 819 (prohibiting award of attorney fees based upon conduct occurring outside the litigation process). The conduct upon which the award of attorney fees was based—termination of employment and failure to inform of insurance termination—occurred before the initiation of the litigation upon which this appeal is based. Appellant quit his job, allowed insurance coverage to lapse, and moved to Pennock in October 2001, but the motion to modify child support obligations was not filed until June 6, 2002. Accordingly, the CSM improperly based its attorney-fee award on conduct occurring before this litigation began.
Affirmed in part, reversed in part, and remanded