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be unpublished and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
In re the Marriage of: Tracey Lynn Lanus Janssen, petitioner,
Caleb Eric Janssen,
July 5, 2005
Reversed and remanded
Otter Tail County
File No. F4-02-2051
Richard J. Schieffer, Anderson, Dove, Fretland & Van
Valkenburg, P.L.L.P., 5881 Cedar Lake Road, Minneapolis, MN 55416 (for
Dennis W. Hagstrom, Svingen, Hagstrom, Karkela, Cline &
Dirks, P.L.L.P., 125 South Mill Street, P.O. Box 697, Fergus Falls, MN 56538-0697 (for
David Hauser, 121
Junius Avenue, P.O. Box 417, Fergus Falls,
(for Otter Tail County)
and decided by Lansing,
Presiding Judge; Stoneburner,
Judge; and Minge,
U N P U B L I S H E D O P I N I O N
challenges the district court’s order reinstating appellant’s child support
responsibilities under a prior divorce decree based on his imputed income as an
over-the-road truck driver. Because the
district court abused its discretion by finding that appellant was
underemployed, and because the duration of appellant’s child support
responsibilities is contrary to Minnesota
law, we reverse and remand.
Janssen and respondent Tracey Janssen were married in 1990. They have three minor children. The parties separated in June of 2002, and
appellant voluntarily paid an agreed amount of child support until August of
hired by Primewood Transportation, a predecessor to Three Rivers Transport, as
a local truck driver in 1995.
Occasionally appellant took longer runs.
In 2002, appellant violated a work rule and was demoted to driving a
gravel truck. In September 2002, appellant
left his job and family and went to California
without providing any contact information to respondent. Up to the time appellant was demoted to
driving a gravel truck, appellant made more than $20 per hour at Three Rivers Transport. As a gravel truck driver he was paid $12 per
hour. Appellant is currently employed in
California as a shuttle truck driver taking
trailers between Redding and Sacramento, California
and earning $16.50 per hour.
was in California, respondent filed a petition
for marriage dissolution in Minnesota. On January 21, 2003, a default marriage
dissolution judgment was filed, in which appellant was ordered to pay child
support of $1,860.51 per month, including medical and child care costs. The order required appellant to pay support
for each child until the child completed a four-year degree or reached the age
of 24. This child support was based on
respondent’s testimony regarding appellant’s income records at Three Rivers for
the period prior to his demotion. They
indicated that his gross monthly income was $4,418 and his net income was
$3,593 after making various deductions in accordance with Minn. Stat. §
518.551, subd. 5(b) (2004). Because
appellant had not been paying child support, he had a substantial arrearage. In September 2003, appellant moved to modify
or vacate the default marriage dissolution judgment. This motion was denied on October 13, 2003.
In December 2003,
appellant moved to modify child support; he did not dispute the substantial
arrearages. Based on appellant’s income
at his California
job, the child support magistrate (CSM) granted this motion and decreased
appellant’s child support to $985 per month, including medical and child care
costs. The CSM also ordered that child support
should only continue until the children reach 18, or 20 if still in secondary
Respondent filed a
motion for review by the district court, including a request for a new
hearing. The request for a new hearing
was granted, and the district court vacated the CSM’s order and reinstated the
child support obligations under the default marriage dissolution judgment. The district court found that appellant is
voluntarily underemployed. The court
stated that the voluntary underemployment required the court to “impute to him
the amount of income he would most likely have received had he remained
employed at Three Rivers Transport as an over-the-road trucker, or become
employed with some other trucking company in the state of Minnesota at a
similar wage.” The district court found
that evidence had been presented showing that there were other jobs available
in Minnesota as an over-the-road trucker that paid the same as or more than
appellant’s employment at Three Rivers Transport. This appeal follows.
D E C I S I O N
consider the standard by which the district court reviews decisions of the
child support magistrate. The rules
provide that the
District court judge shall make an
independent review of any findings or other provisions of the underlying
decision and order for which specific changes are requested in the motion. The . . . district court
judge shall affirm the order unless the court determines that the findings and
order are not supported by the record or the decision is contrary to law.
Minn. R. Gen. Pract. 377.09, subd.
2(b). Although the language of the rule providing
for “independent review” and then for deference to the findings and order
creates a conflict on the nature of that review, caselaw has consistently
stated that the CSM’s decision is subject to de novo review by the district
court. Kilpatrick v. Kilpatrick,
673 N.W.2d 528, 530 n.2 (Minn. App. 2004); Davis v. Davis,
631 N.W.2d 822, 825 (Minn. App. 2001); Blonigen v. Blonigen, 621 N.W.2d 276,
280 (Minn. App. 2001), review denied (Minn.
Mar. 13, 2001). We review the district
court’s decision for an abuse of discretion. Davis631 N.W.2d at 826. The district court has broad discretion in
deciding whether to modify child support.
Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).
A decision regarding modification will not be disturbed on appeal unless
the decision is against logic and the facts in the record. Id.
The first issue is
whether the district court clearly erred by finding that appellant is
voluntarily underemployed so that income could be imputed to him.
A child support
order may be modified if the moving party shows a substantial change in
circumstances that makes the existing support award unreasonable and
unfair. Minn. Stat. § 518.64, subd. 2(a)(1) (2004); Putz,645 N.W.2d at 348 (Minn.
2002). If the application of the child
support guidelines results in a calculation of support that is at least 20% and
$50 higher or lower than the existing support obligation, it is presumed that a
substantial change in circumstances has occurred and the requirements of the
current support order are presumed to be unreasonable and unfair. Minn.
Stat. § 518.64, subd. 2(b)(1) (2004).
However, if the district court finds that the obligor is voluntarily
unemployed or underemployed, then the district court must calculate the support
obligation based on the obligor’s imputed income. Minn.
Stat § 518.551, subd. 5b (d) (2004). The
court can also consider whether an obligor’s unemployment or underemployment is
in bad faith toward his or her support obligations. Putz,
645 N.W.2d at 351. It is also required
that there must be some voluntary choice to become employed or
underemployed. Franzen v. Borders, 521 N.W.2d 626, 629 (Minn.
App. 1994); see Lee v. Lee, 459
N.W.2d 365, 370 (Minn.
App. 1990), review denied (Minn. Oct.
18, 1990). In Lee, the court held that where an employee was forced to resign
after taking extended lunch breaks, this was not voluntary termination because
there was no evidence that the willful misconduct “was an attempt to induce
termination and thereby avoid a child support obligation.” 459 N.W.2d at 370.
that he did not voluntarily quit his job as a tractor-trailer driver and choose
to be demoted to driving a gravel truck.
However, appellant did violate a well-established work rule by leaving a
trailer he was hauling because he did not want to stay in Minneapolis over the weekend until it was
unloaded. As a result of this incident,
appellant was demoted to a $12 per hour gravel truck driver. He only held this position for a few days. He left for California without informing his employer he
was quitting, leaving a forwarding address, or notifying respondent of where he
could be reached. He knew respondent was
taking steps to reinstate formal child support collections. Appellant’s conduct is more culpable than the
child support obligor in Lee. Id.
Based on the record
before us, the district court did not abuse its discretion in concluding that
appellant’s action of leaving a trailer assumed the risk or at least was
accompanied by the knowledge that he might lose his job. Even if his actions do not show bad faith
toward child support obligations, at least they indicate appellant’s disregard
for the effect his actions would have on his ability to provide financial
support for his children. Thus, it was
reasonable for the district court to find that appellant voluntarily ended his
employment at Three Rivers Transport.
though appellant acted in disregard of his child support obligation in September
2002, underemployment is a separate issue.
Appellant argues that he is not underemployed because he historically
worked as a local truck driver and he is currently working as a local truck
driver in California. Appellant began working as a local truck
driver in 1995. He was hired by Three
Rivers Transport to work as a regional/local driver. Appellant usually returned home the same evening
or the next day. By contrast, over-the-road
truckers drive extended cross-country trips of longer duration. Respondent, appellant, and appellant’s
supervisor all testified that before appellant was demoted to gravel truck
driver, he drove mostly regional trips for Three Rivers Transport, but he would
sometimes go on overnight long-haul trips.
Even respondent testified that appellant was a local trucker because he was
taking mostly short trips or overnights.
appellant works as a shuttle driver taking trailers between Redding
and Sacramento, California.
Appellant started at $16 per hour, with a raise to $16.50 per hour after
60 days. Prior to his current California job, appellant worked at two other California trucking
firms as a local driver at slightly lower hourly pay rates. The district court found that when appellant
was at Three Rivers Transport, his duties involved both local trucking and long
distance interstate hauling and the job he left in Minnesota was as an over-the-road
trucker. The district court compared
appellant’s current salary of $16.50 per hour as a trucker with his prior earnings
at over $20 per hour and wages at available jobs for over-the-road truckers and
found appellant to be underemployed. However,
this income for driving an extraordinary number of hours in an over-the-road
capacity is not comparable. Although he
took some long-haul trips at the time he left Three Rivers, the clear evidence is
that appellant’s primary job at Three Rivers Transport was as a local/regional
trucker. Appellant is currently working
full-time as a local driver. The
district court’s conclusion that appellant was a long-haul, over-the-road
trucker and his imputation of income to appellant based on available income for
over-the-road truckers was an abuse of discretion. There is no evidence that appellant is
underemployed at his current job in order to avoid paying child support. We reverse the district court on this issue
and remand to the district court to calculate appellant’s child support
obligations based on his current income.
next issue is whether reinstatement of the requirement that appellant pay child
support until each child completes a four-year degree or until the age 24 is reversible
In the chapter on
marriage dissolution in the Minnesota Statutes, a child is defined as “an
individual under 18 years of age, an individual under age 20 who is still
attending secondary school, or an individual who, by reason of physical or
mental condition, is incapable of self-support.” Minn.
Stat. § 518.54, subd. 2 (2004). Where
there is no claim or evidence that a child will be incapable of self-support
due to a physical or mental condition, a court does not have the authority to
order child support past age 18, or age 20 if still attending secondary
school. Kiesow v. Kiesow, 270 Minn.
374, 385, 133 N.W.2d 652, 660 (1965); see
Kleinhuizen v. Kleinhuizen, 354 N.W.2d 588, 589-90 (Minn.
App. 1984) (finding support obligation ended when child reached 18 because
there was no evidence that the child had any physical or mental condition
making her unable to support herself).
is no claim that the parties’ children have a physical or mental condition that
would render them incapable of self-support.
Therefore, the law requires that the child support obligation only
extend until the children reach 18 years of age, or 20 if still attending
secondary school. The district court’s
reinstatement of the requirement that appellant pay child support until the
child completes a four-year degree or until the age of 24 is an error of
that appellant did not raise this issue in the district court. This court on appeal generally only considers
those issues presented to and considered by the district court. Thiele
v. Stich, 425 N.W.2d 580, 582 (Minn.
1988). But this court has the ability to
address issues as the interest of justice may require. Minn.
R. Civ. App. P. 103.04.
district court is to review any provisions of the underlying order in which
specific changes are requested in the motion.
Minn. R. Gen. Pract. 377.09, subd. 2(b).
In this case the CSM’s order stated that child support payments would
continue until the covered children were 18, or 20 if still in secondary
school. Respondent in her motion for
review specifically requested that the district court eliminate the paragraph in
which the CSM changed the duration of the child support. Therefore this issue was properly before the district
court and the district court was required to review it. In addition, because the current order
clearly violates the law, it is in the interest of justice to correct this
Reversed and remanded.