This opinion will be unpublished and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:
Leslie L. Kozel, n/k/a Leslie Kurzontkowski, petitioner,
Kevin P. Kozel,
Steele County District Court
File No. F8-95-1009
Maury Beaulier, Hellmuth & Johnson, PLLC,
Paula Smoot Ogg,
Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
On appeal to this court following remand and the district court’s subsequent affirmation of its previous order imputing income for the purpose of determining appellant-mother’s child support obligation, appellant argues: (1) the district court did not properly execute this court’s remand order to impute income based on the factors enumerated in Minn. Stat. § 518.551, subd. 5b(d) (2002); (2) the district court improperly declined to reopen the record on remand to receive new evidence regarding appellant’s earning capacity, and as a result, overstated her earning capacity; (3) the district court abused its discretion in denying appellant’s motion to modify her existing support obligation. We affirm on all issues.
F A C T S
Appellant Leslie Kozel (Leslie Kurzontkowski) and respondent Kevin Kozel were divorced approximately ten years ago. Two minor children were born of the union. Respondent has physical custody of the children; appellant pays child support. Her support obligation is $1,211.00 per month, which was originally based on appellant’s annual salary of $71,999.72 with her former employer, Cybex International. (“Cybex”).
Appellant was terminated from her position as Cybex’s Director of Legal Affairs in April 2003 and given a 19-week severance package. Appellant’s job at Cybex was filled by an attorney. Appellant does not have a law degree. Although she earned a paralegal certificate from the American Institute for Paralegals, she has not taken a certified paralegal exam.
testified that she searched for comparable employment by asking attorneys with
whom she had contact to keep her in mind if they became aware of available jobs
similar to her position with Cybex in the southern
When appellant’s severance package expired, she decided to change careers and enrolled in a graduate degree program in special education. Appellant currently works full-time as a special education teacher’s assistant. Her monthly salary is $654.
2003, appellant filed a motion with the Child Support Magistrate (“CSM”) assigned
to the case seeking to decrease her support obligation based on a “substantial
change in circumstances.” See
The district court reviewed the CSM’s findings and denied motions for modification and/or further review. The district court did not hold a separate hearing in its consideration of the matter. In affirming the CSM’s order, the district court concluded that the record supported the CSM’s findings that appellant failed to demonstrate her inability to find suitable employment as a paralegal. The district court construed the CSM’s report to indicate that appellant acted in bad faith by not seeking positions with an income commensurate with what she was earning at Cybex. The court concluded that the CSM “did not abuse her discretion” when she imputed income and maintained the existing support obligation. The district court further noted that appellant failed to supplement the record when the CSM gave her an additional week to do so.
Appellant appealed the
district court’s initial decision. This
court held that the district court did not err in finding that appellant is
voluntarily underemployed, reasoning that appellant failed to meet her burden
of proving otherwise. Kozel v. Kozel, No. A04-1714, 2005 WL
1217339, at *5 (
On remand the district court again affirmed the CSM’s order in all respects. The district court did not accept additional evidence but analyzed appellant’s ability, qualifications, past job performance, education, experience, and opportunities for comparable employment in addition to appellant’s past earnings. The district court found that appellant’s income had been properly imputed. This appeal followed.
D E C I S I O N
The determination of a
support obligor’s income for child support purposes is generally a finding of
fact that is not set aside unless clearly erroneous. Ludwigson v. Ludwigson, 642 N.W.2d
441, 446 (Minn. App. 2002). Whether
to impute income to a support obligor is discretionary with the district
court. Murphy v. Murphy, 574 N.W.2d 77, 82-83 (
Appellant argues that the
district court made insufficient findings on the factors enumerated in Minn.
Stat. § 518.551, subd. 5b(d), to support the income imputed to appellant. The district court must make particularized
findings to demonstrate that relevant statutory factors have been
considered. See Kroening v. Kroening, 390 N.W.2d 851, 854 (
If the district court’s
findings indicate that the court has addressed the relevant statutory factors,
remand is not appropriate. Tuthill v. Tuthill, 399 N.W.2d 230, 232
Minn. Stat. § 518.551, subd.
5 (2002), articulates the factors relevant to the decision to modify a support
order. Putz, 645 N.W.2d at 348.
When imputing income, the court must estimate earning capacity based on
the party’s prior earnings history, education, job skills, and availability of
jobs within the community for an individual of the party’s qualifications.
Minn. Stat. § 518.551 subd. 5b(d) (2002); Kuchinski
v. Kuchinski, 551 N.W.2d 727, 729 (
The district court’s order following remand addressed appellant’s prior earnings history and education. The district court considered appellant’s reported income between 1998 and 2002. This analysis of her salary constitutes adequate consideration of appellant’s relevant prior earnings history. The district court also addressed appellant’s education, noting in its supplemental findings of fact that “[appellant] has a technical degree as a medical secretary, a Bachelor of Arts Degree in Organizational Management and Communication, and a post-bachelor paralegal certificate.”
The district court considered appellant’s job skills as well as the availability of jobs within the community for an individual of her qualifications. In its analysis of appellant’s job skills, the district court considered her “extensive paralegal and business management experience” and her many skills including: litigation administration, company policy and law review, regulatory reporting, and business risk management. The court further reasoned that appellant’s “income levels were achieved as reflections of her ability, qualifications, and job performance.” As for the job availability, the court expressly found “there are numerous opportunities for employment within the relevant community for an individual with [appellant’s] qualifications that pay at the level equal to, or greater than, her salary at Cybex.” The district court noted that appellant applied to only a “limited number” of jobs in her field before opting to change careers.
These four statutory factors
represent the breadth of the considerations enumerated in Minn. Stat. §
518.551, subd. 5b(d). By considering
these four factors, we conclude that the district court complied with this
court’s remand order. There is evidence
in the record that reasonably supports the district court’s findings regarding
these factors. Since appellant’s prior
earning history, education, job skills, and availability of jobs in the
relevant community are questions of fact, appellant faces a high hurdle in this
appeal. See Fletcher v.
Imputing income based solely
on appellant’s previous earnings would constitute an abuse of discretion. That was the crux of this court’s holding in
Appellant also argues that the district court abused its
discretion by declining to reopen the record to hear new evidence on
remand. The decision to receive new
evidence is generally within the discretion of the district court. J.W. ex
rel. D.W. v. C.M., 627 N.W.2d 687, 697 (Minn. App. 2001), review denied (
When a case is remanded on
an issue without specific direction regarding how to proceed in deciding that
issue, this court affords district courts broad discretion. Duffey
v. Duffey, 432 N.W.2d 473, 476 (
Like the appellate order in Duffey I, which did not specify how the district court was to proceed in determining permanent maintenance on remand, this court’s order in Kozel I did not specify whether the district court was to reopen the record and consider new evidence on remand. When the district court opted not to reopen the record, its decision was supported by Duffey II. We decline to infringe on the district court’s discretion to make the same decision in this case. Appellant relies heavily on Kuchinski. This court remanded Kuchinski with the specific order to receive new evidence. 551 N.W.2d at 729. This court’s only directive when it remanded the current case, however, was to apply Minn. Stat. § 518.551, subd. 5d(b). Kozel, 2005 WL 1217339, at *6. Unlike Kuchinski, which was remanded specifically “for the taking of additional evidence on the appropriate imputed income,” 551 N.W.2d at 729, the present case was not remanded for the purpose of hearing additional evidence. The distinction is crucial. Because there was a specific directive to reopen the record in Kuchinski, while no such directive existed in the current case, appellant’s reliance on Kuchinski is not persuasive.
In both Duffey and the current case, the record reasonably supports the conclusion that the district court arrived at a calculated decision not to hear new evidence. Like the district court’s remand order in Duffey I, which expressly stated that “no further discovery . . . is necessary,” Duffey, 432 N.W.2d at 475, the district court’s remand order in the current case stated, “[t]he testimony and exhibits of record, together with the submitted arguments of counsel, is sufficient basis for determination of [appellant’s] estimated earning ability.”
An appellate court cannot
make assumptions regarding “evidence not included in the record nor in any way
disclosed.” State by Clark v. Wolkoff, 250
Appellant asserts that neither party submitted evidence
relating to her earning capacity. The
existing record contains extensive documentation expounding on appellant’s
education, training, experience, and earnings history. The record also contains findings regarding
appellant’s skills and her marketability as a paralegal as well as a special
education teacher. This information constitutes
sufficient evidence pertaining to appellant’s earning capacity. Determining appellant’s earning capacity
without considering a vocational report, the contents of which remain
unspecified, does not constitute an abuse of discretion. Respondent, relying on Eisenschenk v. Eisenschenk,
correctly points out that, “[o]n appeal, a party cannot complain about a
district court’s failure to rule in her favor when . . . that party failed to
provide the district court with the evidence. . . .” 668 N.W.2d 235, 243 (Minn. App. 2003), review denied (
If a vocational evaluation would have supported appellant’s position, appellant should have conducted the evaluation earlier and introduced it into evidence. By making a limited reference to the existence of the vocational evaluation, appellant failed to provide the district court with evidence that may have assisted the court in estimating appellant’s earning capacity.
We conclude the district court acted reasonably when it declined to reopen the record upon remand
 A transcript of the hearing before the CSM was presented to the district court, but a new hearing was not held. See Minn. Stat. § 518.64, subd. 2(f) (2002) (“The court need not hold an evidentiary hearing on a motion for modification of . . . support.”).