This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Joellyn J. Rock-Sivak
(n/k/a Rock), petitioner,
Joseph James Sivak,
Filed June 7, 2005
Reversed and remanded
St. Louis County District Court
File No. F5-97-600367
Joellyn J. Rock,
Arthur M. Albertson, 101 West
Considered and decided by Stoneburner, Presiding Judge; Lansing, Judge; and Willis, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from the denial of a motion to modify child-support and parenting-time provisions in a marital-dissolution judgment, Joseph Sivak challenges the district court’s failure to make findings on his current income and to address his motion on modification of parenting time. The order establishes that the district court addressed the parenting-time modification and directed Sivak’s attorney to submit a proposed order. The order does not, however, contain findings on Sivak’s income, and we reverse and remand for additional findings on the motion to modify child support.
Joseph Sivak and Joellyn Rock were married from 1994 to 1998 and are the parents of a child born in 1995. In their dissolution proceedings, Sivak and Rock agreed to joint legal and physical custody. Consistent with their agreement, they worked out a comprehensive parenting schedule that was incorporated into their 1998 marital-dissolution judgment. Under the terms of the stipulated judgment, Sivak agreed “to pay child support according to the [s]tate guidelines” irrespective of the amount of parenting time with their child. The dissolution judgment provided that Sivak, a psychiatrist with a biweekly net income of $1,950, would pay Rock child support of $1,408 each month.
Sivak changed employers twice after the marital dissolution, and his income remained essentially the same. But in June 2003, Sivak opened his own office for the private practice of psychiatry. In his affidavit in support of his motion to reduce child support and amend the parenting schedule, Sivak provided a detailed account of his earnings and expenses for April 2003 through November 2003. Sivak noted that the first three months were not representative of his monthly net income as he incurred significant, one-time, start-up expenses during that time. According to Sivak’s calculation of income from September to November 2003, his average net monthly income amounted to $1,604.37. Sivak also alleged that Rock’s net income had increased since the dissolution judgment.
Based on the financial information and calculations in his affidavit, Sivak moved to modify his child-support obligation. Sivak also moved to amend the parenting-time schedule to adopt the “present parenting-time agreement.”
The district court conducted a hearing and issued an order denying the motion to reduce child support because the court “has not been supplied with accurate evidence of [Sivak’s] actual earning power upon which the [c]ourt can make a determination of whether there has been a substantial change of circumstances making the terms of the [judgment] unreasonable and unfair.” The order stated that Rock and Sivak had agreed on the parenting-time schedule, which the court would adopt by separate order after Sivak’s attorney submitted a written copy to Rock for her approval and forwarded the proposed order to the court.
Sivak appeals from the district court’s order, arguing that the district court erred by failing to (1) make specific findings on Sivak’s income and (2) rule on the motion to modify parenting time.
D E C I S I O N
parent seeking modification of a child-support order carries the burden of
showing a substantial change of circumstances that makes the existing
child-support order unreasonable and unfair.
The district court did not make specific findings on Sivak’s income or determine whether it had decreased. Instead the court concluded that it had “not been supplied with accurate evidence of [Sivak’s] actual earning power upon which the [c]ourt can make a determination.” We are unsure what evidence the district court believes has not been supplied. Sivak’s affidavit in support of his modification motion provides a lengthy accounting of the expenses of his private practice from its inception. He computed his monthly income of $1,604.37 based on a three-month average and stated that he expected his practice to grow. The district court found that Sivak had been earning approximately $6,000 each month from the time of dissolution until the time Sivak opened his private practice.
Sivak argues that the district court’s reference to the
absence of accurate evidence on his “earning” power suggests that the court is using
an incorrect standard and not applying Minn. Stat. § 518.551, subd. 5b(f)
(2004), which provides that “[i]ncome from self employment is equal to gross
receipts minus ordinary and necessary expenses.” Sivak contends that the court’s invocation of
the concept of earning power suggests, without evidentiary support, that Sivak
has unjustifiably self-limited his income or that the information is
insufficient to determine his actual income. See
Without further findings that justify the district court’s approach, we agree that earning power is not the standard by which a change of circumstances is determined; rather it is the “substantially increased or decreased earnings of a party.” Minn. Stat. § 518.64, subd. 2(a)(1). Even assuming the district court may have meant “earnings” when it used the term “earning power,” it stated further that it “has not been supplied with accurate evidence” of Sivak’s earnings. But the lengthy assessment of Sivak’s present receipts and expenses from his private practice provide extensive evidence, and we find no indication in the record that those figures do not represent Sivak’s current earnings.
Because the district court’s findings are insufficient to determine whether the relevant statutory factors have been addressed, we reverse and remand for express findings on earnings in light of the legislative standard and whether the findings demonstrate a change in circumstances that makes the current child-support obligation unreasonable and unfair.
considering a motion to modify parenting time, the district court shall order
modification if a change in parenting time “would serve the best interests of
Sivak’s motion requested an order “adopting the parties’ present parenting-time agreement.” The district court, in its order following the hearing on the motion, stated that “[t]he parties agreed regarding the parenting time schedule and counsel [for Sivak] agreed to submit a separate order to [Rock] and then to the [c]ourt adopting the parenting time schedule.” Sivak maintains in his brief that he seeks a “slight modification” to conform to what the parents are “actually doing” and that the “parties felt it was important enough that their agreement be included in the [dissolution judgment].”
Sivak has not provided a transcript of the evidentiary hearing, nor does the district court file or Sivak’s brief include any indication that Sivak and Rock disagree on the parenting-time modification. On the record before us, we cannot agree with Sivak that the district court failed to “address” the parenting-time motion. The record indicates that Sivak’s attorney has the responsibility to submit the proposed order, including the parenting-time modification on which Rock and Sivak agree. On this record we conclude that the district court has not abused its discretion by failing to address the modification of parenting time.
Reversed and remanded.