This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In re the Marriage of:
Pamela Jean Hoppe, petitioner,
Kevin Dean Hoppe,
Filed January 30, 2007
Anoka County District Court
File No. F6-98-1250
Robert M.A. Johnson, Anoka County Attorney, Dorrie Estebo, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, 7th Floor, Anoka, MN 55303 (for respondent)
Thomas B. James,
Considered and decided by Worke, Presiding Judge; Klaphake, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in this child-support contempt proceeding, appellant argues that, without determining or imputing his current income, the district court erred by (1) denying his motion to modify his child-support obligation, and (2) executing his contempt sentence absent support for the findings that his failure to comply with the purge conditions was willful and that he had the ability to satisfy the purge conditions, and incarceration was likely to produce compliance. We affirm.
Appellant Kevin Dean Hoppe and respondent Pamela Jean Hoppe’s marriage was dissolved in 1999. The amended judgment and decree established appellant’s net-monthly income for child-support purposes to be $2,735.43, and ordered him to pay $957.40 per month in child support and $62.43 per month for the children’s health insurance. The support order was modified several times between 1999 and 2002.
In 2002, appellant was terminated from his 15-year employment, and he and his girlfriend started a well-sealing business, H & H Services, LLC. Appellant’s monthly child-support obligation was $1,083.64, including health insurance. In 2003, the district court found appellant in contempt for failing to comply with child-support orders. The district court imposed a 90-day sentence, stayed on the conditions that appellant pay $500 per month toward his ongoing support obligations and keep current with the children’s health insurance. Appellant was ordered to provide copies of bank statements, business records, tax returns, and records of all income, payments, and transfers received by him, his company, and business partners.
court denied the motion to modify child support and held appellant in contempt. The district court found that appellant’s
testimony was not credible, he failed to rebut the presumption that he had
sufficient income to pay the support ordered and failed to rebut evidence
concerning his, H & H’s, and his girlfriend’s ownership and acquisition of assets. The district court imposed a 180-day
sentence, stayed on the conditions that appellant pay his ongoing monthly child-support
obligation of $1,055 and monthly health-insurance obligation of $113.90. Appellant was also ordered to pay an
additional $211 per month toward the amount in arrears. The district court’s order was affirmed on
appeal. See Hoppe v. Hoppe, No. A04-1279 (
2004 and July 2005, appellant paid $300 toward his child-support obligation,
and the amount in arrears increased to over $30,000. Additionally, appellant failed to comply with
the district court’s orders to provide financial records, other than his tax
In October 2005, the district court executed appellant’s 180-day sentence and denied his modification motion, but eliminated his child support for the parties’ emancipated child. The district court ruled that appellant failed to show a substantial change in circumstances that would warrant a decrease in his remaining child-support obligation. The district court found that appellant’s testimony regarding his income was not credible, and that he was either voluntarily underemployed or not truthfully reporting his income. The court concluded that appellant’s failure to comply with the child-support orders was willful, that he had the ability to meet the purge conditions of his sentence, and that incarceration was likely to produce compliance. This appeal follows.
D E C I S I O N
argues that the district court erred in denying his motion to modify his child-support
obligation. Whether to modify support is
discretionary with the district court and its decision will be altered on
appeal if it resolved the matter in a manner that is against logic and the
facts on record. Putz v. Putz, 645 N.W.2d 343, 347 (
A child-support order may be modified if the
moving party shows a substantial increase or decrease in the earnings of a
party. Minn. Stat. § 518.64, subd.
2(a)(1) (2004). “The moving party has the burden of proof in
support-modification proceedings.” Bormann v. Bormann, 644 N.W.2d 478, 481
Appellant contends that the district court erred in finding that he is voluntarily underemployed or not truthfully reporting his income. A parent is not considered voluntarily underemployed for child-support purposes if the parent shows that the underemployment: “(1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent’s diminished income on the child[ren].” Minn. Stat. § 518.551, subd. 5b(d) (2004). The record supports the finding that appellant is voluntarily underemployed. First, appellant has not shown that H & H will ultimately provide an increase in income sufficient to support his children. In 2002, H & H lost $32,035. Appellant asserted that the loss was temporary, but in 2003 the company lost $13,453. In 2004, appellant claimed to have worked 60 hours per week, yet his total income was only $2,133. The district court considered the necessary statutory factors and did not clearly err in determining that appellant’s testimony, if true, indicates that he is voluntarily underemployed.
Next, the record also fails to show that appellant’s self-employment represents a bona fide career change that outweighs the adverse effect his diminished income has on his children. Appellant testified that prior to his self-employment he earned approximately $35,000 to $38,000. When appellant became self-employed, it had an adverse effect on his children: he earned approximately $2,000 in 2004 and he paid only $300 in child support between June 2004 and July 2005. The district court considered that appellant is licensed by the Minnesota Department of Health and that H & H is one of five contractors that perform 90% of the well-sealing jobs in this geographic area. And despite H & H’s lack of meaningful profitability, appellant testified that he does not intend to pursue other career opportunities. Based on these facts the district court reasonably concluded that appellant’s self-employment does not represent a bona fide career change and did not clearly err in finding that appellant is voluntarily underemployed.
Alternatively, the record supports the district court’s finding that appellant was not credible and that he is not truthfully reporting his income. See Minn. R. Civ. P. 52.01 (stating that “due regard shall be given to the opportunity of the [district] court to judge the credibility of the witnesses”). The district court found appellant’s testimony suspect with respect to the high number of hours he claimed to work for so little income, his high expenses, and his intent behind transferring his assets to his girlfriend. Despite the district court’s orders to do so, appellant failed to provide any financial records, other than his tax returns. Additionally, appellant was not initially truthful regarding how his previous employment terminated and he was not forthcoming in answering questions. The district court did not clearly err in finding appellant’s testimony not credible.
also argues that the district court abused its discretion in denying his motion
without first determining his current income or imputing a specific income to
him. When the district court finds that
a parent is voluntarily underemployed, child support must be calculated based
on a determination of imputed income.
Minn. Stat. § 518.551, subd. 5b(d).
“Imputed 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
Here, the district court did not make a specific finding of appellant’s current income, nor did it impute income. But the district court’s order demonstrates that it considered the relevant statutory factors in determining that appellant may be voluntarily underemployed. The district court also found that appellant was not credible. It was not necessary for the district court to impute a specific income to appellant in order to conclude that appellant had not met his burden of showing a change in circumstances. The district court had previously determined appellant’s available monthly income for child-support purposes and appellant provided no reasonable basis for the court to arrive at a new income. Therefore, the district court did not abuse its discretion in denying appellant’s motion.
appellant argues that the district court erred
in executing his sentence. The factual findings of a contempt order are
subject to reversal only if clearly erroneous, and we review the district
court’s decision for an abuse of discretion.
the district court reasonably inferred that appellant’s failure to comply with
the contempt order was willful, based either on appellant’s voluntary
underemployment or concealment of financial resources. Appellant repeatedly avoided answering
questions until he was ordered to do so, and he did not provide any
documentation, other than his tax returns, to support his contention that he
was not in contempt for failing to comply with child-support orders. See Bollenbach v. Bollenbach, 285
the district court did not need to determine or impute appellant’s income
before deciding that appellant had the ability to comply with the contempt order
and its purge conditions, and that, consequently, execution of appellant’s
sentence was likely to produce his compliance.
Although respondent argues that this issue is moot because appellant has
served the sentence, it is not moot, because a civil-contempt order may be used
in subsequent proceedings against appellant, e.g., criminal non-support
prosecution under Minn. Stat. § 609.375 (2004). Appellant’s failure to meet his child-support
obligation is prima facie evidence of contempt, and he failed to rebut that
presumption. Appellant’s actions
prevented the district court from having a basis to determine an income
different from the one it determined at the time it established appellant’s
child-support obligation. See id. (allowing adverse inferences
against party failing to make adequate disclosure). Further, appellant’s actions
show bad faith with respect to his ability to pay child support. See
Eisenschenk v. Eisenschenk, 668
N.W.2d 235, 241 (Minn. App. 2003) (stating that whether a party acts in bad
faith is a question of credibility), review