This opinion will be unpublished and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
Kim R. Jones, f/k/a Kim R. Schneier,
n/k/a Kim R. Brown, petitioner,
Lon L. Simmons,
Filed May 16, 2006
Nicollet County District Court
File No. F2-97-196
Philip J. Elbert, Skillings & Associates, 237 Belgrade Avenue, P.O. Box 2064, North Mankato, MN 56003 (for appellant)
Lon L. Simmons,
Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Forsberg, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the district court’s denial of her motion for modification of child support upon review of the child support magistrate’s decision to increase respondent’s child-support obligation, arguing that the district court (1) lacked subject-matter jurisdiction because respondent’s motion for review was untimely; and (2) erred by denying her motion for modification and reversing the child support magistrate’s decision. We affirm.
Appellant Kim Jones and respondent Lon Simmons are the parents of two minor children. In 1997, the district court granted custody of the children to appellant and ordered respondent to pay child support.
In January 2003, respondent’s child-support obligation was modified based on the termination of his employment and subsequent enrollment in technical college as part of a displaced-worker’s program. Respondent was unable to work full-time while attending college, and his child-support obligation was decreased to $169 per month.
Respondent graduated from college in the summer of 2004 and obtained employment in his field of study. In October 2004, appellant sought modification of child support. In November 2004, respondent’s employment ended.
At the modification hearing, respondent argued that he was terminated from his post-graduation employment. The child support magistrate (CSM) found that respondent voluntarily terminated his employment based on the child-support supervisor’s testimony that respondent’s former supervisor indicated that respondent had quit his job. The CSM granted appellant’s motion for modification of respondent’s child-support obligation, imputing income to respondent based on his voluntary unemployment and the CSM’s findings that respondent was capable of full-time work and had an earning capacity of at least $7.50 per hour. Based on this imputed income, the CSM ordered respondent to pay $304 per month in child support and $50 per month for reimbursement of medical assistance.
Respondent filed a motion for review of the CSM’s order with the district court. The district court granted the motion for review, but denied respondent’s request for a hearing. The parties did not provide transcripts to the district court. The district court reversed the CSM’s order modifying child support and reinstated the previous order setting child support at $169 per month based on its findings that the CSM did not make “particularized findings to show that [respondent] is able to obtain employment” and that the CSM’s conclusions of law were unwarranted. This appeal follows.
Respondent, pro se, moved to dismiss the appeal on the basis that the appeal was procedurally defective. This court denied the motion, concluding that the appeal was not defective and that this court had jurisdiction over the matter.
D E C I S I O N
Appellant first argues that the district court lacked subject-matter jurisdiction to rule on respondent’s motion for review because the motion was not served on appellant within the 20-day time limit. Because respondent did not file a brief, the matter is to be decided on the merits pursuant to Minn. R. Civ. App. P. 142.03.
Whether a district court has
subject-matter jurisdiction is a question of law, which this court reviews de
novo. In re Thulin, 660 N.W.2d 140, 143 (
Any party may bring a motion
for review of the decision and order for judgment of a CSM. Minn. R. Gen. Pract. 376.01.
Here, the record indicates that the court administrator served the notice form by mail on April 11, 2005, giving respondent 23 days within which to serve his motion for review. Thus, the deadline expired on May 4, 2005. Because appellant concedes that she was served with respondent’s motion for review on May 3, 2005, respondent has not shown that the district court lacked subject-matter jurisdiction.
Appellant next argues that the district court abused its discretion by denying her motion for modification. Specifically, appellant contends that the district court did not give proper deference to the CSM’s findings, and erroneously shifted the burden to appellant to prove that respondent was voluntarily unemployed.
Deference to the CSM
Appellant first contends that the district court did not give proper deference to the CSM’s finding of fact that respondent was voluntarily unemployed, arguing that the district court’s review was subject to a “clearly erroneous” standard.
Minn. R. Gen. P. 377.09,
subd. 2, governs the district court’s review of a CSM’s order. The rule provides that the district court
“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] 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.”
Burden of Proof
Appellant next contends that the district court improperly shifted the burden of proof from respondent to appellant by requiring her to prove that other employment was available to respondent in order for modification to be granted.
Generally, we review the district court’s decision regarding child-support
modification for an abuse of discretion and will reverse the district court’s
decision only when the district court’s resolution of the issue is against
logic and facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (
Here, the district court reversed the CSM’s order not because appellant failed to produce sufficient evidence of the voluntariness of respondent’s unemployment, but rather because the CSM did not make the necessary findings to support the determination that respondent was voluntarily unemployed. The district court stated:
[Respondent] is unemployed. The only evidence furnished to this Court, which apparently was the only evidence presented to the CSM, was two letters from prospective employers in which [respondent] was denied employment. The law is clear that the CSM must make particularized findings to show that [respondent] is able to obtain employment. Because the CSM did not make such [f]indings, and because the CSM only drew unwarranted [c]onclusions of [l]aw, the decision of the CSM as to modification, including the amount of modification, must be reversed.
For this reason, appellant’s allegation that the district court reversed the CSM’s determination based on an erroneous placement of the burden of proof is without merit.
A parent’s responsibility for child
support is generally based on net income and ability to pay.
If the court finds that a parent is voluntarily unemployed or underemployed . . . [child] support shall be calculated based on a determination of imputed income. A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment: (1) is temporary and will ultimately lead to an increased in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child.
Here, the district court did not
alter the CSM’s findings and thus adopted them.
Cf. Blonigen, 621 N.W.2d at
280 (in performing independent review of CSM’s ruling, findings of the CSM that
are not approved or modified by the district court do not become part of the
district court’s decision). But the
district court determined that these findings did not support the CSM’s
conclusion that respondent was voluntarily unemployed because there was no
finding that respondent was able to obtain other employment. Implicit in the district court’s
determination is that the CSM failed to make the necessary finding under
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.