This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of:


Annette F. Ellsworth,

f/k/a Annette F. Bastyr, petitioner,





Gerald Paul Bastyr,



Filed January 18, 2005

Reversed and remanded

Kalitowski, Judge


Ramsey County District Court

File No. DM-F2-98-2721


Amy L. Senn, US Bank Building, 7200 80th Street South, Cottage Grove, MN 55016 (for respondent)


James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)


            Considered and decided by Kalitowski, Presiding Judge; Schumacher, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant Gerald Bastyr claims that the district court abused its discretion in (1) establishing child support based on imputed income; (2) calculating arrearages; and (3) dividing the parties’ property.  We reverse and remand for a determination of appellant’s child support and a recalculation of appellant’s child-support arrearages in such proceedings as the district court deems appropriate.



In this dispute regarding child support, the district court countersigned a referee’s recommended order, following a trial before the referee.  See Minn. Stat. § 484.70, subd. 7(c) (2002) (stating that “[t]he recommended findings and orders of a referee become the findings and orders of the court when confirmed by a judge”).  A district court has broad discretion to provide for the support of the parties’ children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  We will reverse a district court’s order regarding child support only if the district court “abused its broad discretion by reaching a clearly erroneous conclusion that is against logic and the facts on record.”  Putz, 645 N.W.2d at 347. 


If a district court concludes that an obligor is voluntarily underemployed, it shall calculate child support based on a determination of imputed income.  Minn. Stat. § 518.551, subd. 5b(d) (2002).  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.  But before a district court can impute income, there must be evidence of choice in the matter of underemployment.  Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998).  In addition, the imputed income must be based on the potential income within the obligor’s community.  Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn. App. 1996). 

In February 1999, appellant Gerald Bastyr and respondent Annette Ellsworth (f/k/a Bastyr) appeared before an administrative law judge for a child-support hearing.  The administrative law judge found that (1) having been laid off by Cargill, Inc., appellant was unemployed at the time of the hearing, but was receiving reemployment benefits; (2) when appellant was working at Cargill, he earned a monthly net income of $1,566.07; (3) appellant had been employed seasonally by Cargill for more than 12 years, and he expected to return to his job at Cargill.  The administrative law judge ordered that effective March 1, 1999, and continuing each month thereafter until further order to be issued by the district court:

[Appellant] shall pay temporary child support in the amount of 35% of [his] net monthly income, whether such income is derived from re-employment benefits, wages from Cargill, Inc., or wages from another employer.  If [appellant’s] income is derived from re-employment benefits, [appellant] shall pay $413.73 per month as temporary child support.  If [appellant’s] income is derived from wages while employed by Cargill, Inc., [appellant] shall pay $548.12 per month as temporary child support.


In December 1999, the district court filed a judgment dissolving the parties’ marriage.  That judgment was vacated in November 2002 as to property division, debt division, child support, and child-support arrearages.  A family court referee held a trial on these issues in August 2003. 

During the trial, appellant testified that (1) he currently worked at a tire shop, delivering tires for $10 per hour; (2) he had loaded barges at Cargill from March or April 1999 until September 1999, when he moved to Michigan; (3) he took voluntary layoffs in the wintertime at Cargill; (4) he was terminated by Cargill in September 1999 because, having relocated to Michigan, he no longer showed up for work at Cargill; (5) he did not have a job lined up in Michigan when he left his job at Cargill; (6) while in Michigan, he looked for work, but the rate of pay was low and there were very few jobs to be had; (7) he returned to Minnesota in April 2002 and worked at two different jobs for less than $10 per hour before accepting his job at the tire shop; (8) he tried to get his job back at Cargill when he returned to Minnesota, but was not rehired; (9) he had completed two years of school for auto-body repair; (10) he looked for, but did not find, auto-body work in Michigan; and (11) he did not seek auto-body work upon returning to Minnesota in 2002. 

After the trial, the referee recommended an order to the district court that appellant pay $548.13 per month in child support, 35% of $1,566.07.  The referee supported his decision with findings that appellant (1) voluntarily terminated his employment with Cargill; (2) had training in auto-body repair; (3) was voluntarily underemployed; and (4) had the ability to earn a minimum net monthly income of $1,566.07.

This court has held that an obligor becomes voluntarily unemployed by terminating employment to move out of state for reasons unrelated to the obligor’s career.  See Kuchinski, 551 N.W.2d at 729.  Similarly, we believe that the district court here had sufficient evidence through appellant’s own testimony to find that he was voluntarily underemployed.  We conclude, however, that the referee did not make the necessary findings to impute income to appellant.

Having found voluntary underemployment, the district court was required to impute income to appellant.  See id.  In doing so, however, the district court must consider the factors set out in Minn. Stat. § 518.551, subd. 5b(d).  See Kuchinski, 551 N.W.2d at 729.  Thus, among other factors, the district court must consider “availability of jobs within the community for an individual with the parent’s qualifications.”  Minn. Stat. § 518.551, subd. 5b(d).

  The referee made no findings regarding the availability of or rate of pay for auto-body work or other potential employment for appellant in either Michigan or Minnesota.  As noted above, appellant testified that he looked for work in Michigan, but the rate of pay was low and there were no auto-body jobs in Michigan.  In addition, the record indicates that, after returning to Minnesota, appellant worked at two different jobs for less than $10 per hour before accepting his job at the tire shop.  Appellant also testified that he tried to get his job back at Cargill, but was unable to do so.

Although the referee found that appellant chose to leave Cargill, there are not sufficient findings to support the determination that appellant had the potential to earn $1,566.07 per month after leaving Cargill.  We conclude that, on this record, the district court abused its discretion by basing appellant’s child-support obligation on imputed income of $1,566.07, as recommended by the referee.  We therefore reverse and remand to the district court for findings and a determination as to what amount of income, if any, can be appropriately imputed to appellant.  In making this determination, the district court may conduct such hearings as it deems appropriate.


At trial, respondent introduced a summary of appellant’s child-support obligation from the child-support-enforcement division of the county attorney’s office (county).  The referee incorporated the county’s summary into his recommended findings.  According to the summary, appellant owed $18,823.37 in child-support arrearages that accrued between March 1, 1999, and July 31, 2003.  In an affidavit attached to the county’s summary, an agent for the child-support-enforcement division stated that appellant’s monthly child-support obligation was determined to be $548.12 after September 1999, even though county records showed that Cargill was no longer the “payor of funds” after September 9, 1999.  

As noted above, appellant was terminated by Cargill in September 1999.  Thus, the county erroneously based its calculation of arrearages on the assumption that appellant continued to work at Cargill.  Moreover, the administrative law judge’s child-support order stated that effective March 1, 1999, appellant was to pay 35% of his net monthly income in child support, regardless of the source or amount of that income. The administrative law judge included the figure of $548.12 only as an illustration of appellant’s monthly obligation while employed at Cargill.  Thus, the county’s account summary, which was adopted by the referee, was erroneous.  On remand, the district court should calculate appellant’s arrearages based on the previous child-support order and a determination of either appellant’s actual net monthly income or his appropriately imputed income.


            Appellant contends the district court abused its discretion in its division of the parties’ property.  Based on the county’s summary of arrearages, the referee found that appellant has a history of failing to meet his court-ordered child-support obligation.  The referee subtracted appellant’s arrearages from appellant’s share of the equity from the sale of respondent’s home.  The referee allowed the balance of appellant’s net equity to be held in a trust as security for timely child-support payments.

            Minnesota law allows a district court to establish a trust from an obligor’s share of proceeds from the sale of a marital residence.  Minn. Stat. § 518.57, subd. 1 (2002) (stating that the court may make maintenance of children a lien or charge upon the property of parties to a dissolution).  Such trusts have been used as a means of assuring future child support where the obligor has repeatedly failed to meet his court-ordered support obligations.  Gabrielson v. Gabrielson, 363 N.W.2d 814, 816-17 (Minn. App. 1985).  These trusts have also been used to assure future child support where an obligor has not had sufficient funds in the past to make child-support payments, and it does not appear that he will have the funds to do so in the near future.  Resch v. Resch, 381 N.W.2d 460, 463 (Minn. App. 1986).  

            In 1999, when appellant was ordered to pay child support, his annual income was $21,456.  Following the child-support order, appellant’s annual income was only $2,546 in 2000; $8,439 in 2001; and $15,682 in 2002.  We conclude that, based on the significant decrease in appellant’s earnings after the child-support order, the district court appropriately used the trust to assure future child-support payments.  But as discussed above, the district court erred by adopting the referee’s recommendation as to the amount of arrearages.  Therefore, we reverse and remand for a recalculation of the amount of arrearages to be subtracted from appellant’s equity, based on either a determination of appellant’s actual net monthly income or his appropriately imputed income from the same period.

            Reversed and remanded.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.