This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Derek Dennis Ussatis, petitioner,
Nikki Jo Johnson Ussatis,
Filed June 12, 2007
Dakota County District Court
File No. F3-03-8752
Julie K. Seymour, Otten & Seymour, 108 Professional Plaza, 1601 East Highway 13, Burnsville, MN 55337 (for appellant)
Paul H. Thomsen, 16670 Franklin Trail Southeast,
Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
Appellant argues that the district court abused its discretion when it denied his motion for child-support modification. Because we conclude that the district court acted within its discretion, we affirm.
In the course of the dissolution of their marriage, appellant Derek Dennis Ussatis entered into a marital-termination agreement and an amended marital-termination agreement with respondent Nikki Jo Johnson Ussatis. Pursuant to the stipulated judgment, the district court awarded the parties joint legal custody of their two children and awarded sole physical custody to respondent, subject to appellant’s liberal visitation. Child support was set at the stipulated amount of $630 a month, and the parties consented to each pay 50% of any agreed-upon extracurricular activities for the children.
two years later, appellant left his job as a maintenance worker for the City of
moved for a reduction of his child-support obligation based on a substantial
change of circumstances because his income had decreased. Respondent moved the district court for
denial of appellant’s motion on the ground that the district court should impute
appellant’s former income with the City of
sought reconsideration, submitting for the first time two letters to appellant from
the City of
challenges the district court’s denial of his motion for a reduction in his
child-support obligation and asserts on appeal that the district court abused
its discretion by ordering him to pay child support that is an upward deviation
from the Minnesota child-support guidelines without making findings to support
the deviation. The district court has
broad discretion to provide for the support of the parties’ children. Rutten v. Rutten, 347 N.W.2d 47, 50 (
district court may modify child-support payments based on the movant’s showing
that the terms of the existing support order are unreasonable or unfair because
of substantial increase or decrease in earnings, substantial increased or
decreased need of a party or child(ren), receipt of public assistance, or a
change in the cost of living.
It is presumed that there has been a substantial change in circumstances . . . and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if . . . the application of the child support guidelines . . . to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order[.]
Minn. Stat. § 518.64, subd.
2(b). The district court is required to
consider the appropriate factors and make specific findings. Moylan v. Moylan, 384 N.W.2d 859, 863,
Here, the district court found that appellant earned $2,350 in gross monthly income and $1,655 in net monthly income in his prior job and earns $2,166 gross monthly income from his own business. Appellant submitted no information to the district court regarding his monthly expenses, and, as a result, the district court made no findings concerning appellant’s reasonable expenses.
now asserts that his resignation was not voluntary, and his choice of starting
a business was made in good faith to continue his support obligation;
therefore, the district court should not have imputed income from his prior job
to him. This court reviews a district court’s decision to
impute income for an abuse of discretion.
Putz, 645 N.W.2d at 352-53. Determining an obligor’s income for
calculating child support is a finding of fact and will not be altered on
appeal unless clearly erroneous. Ludwigson
v. Ludwigson, 642 N.W.2d 441, 446 (
“[t]he obligation to pay childsupport is premised on the obligor’s ability to
pay.” Schneider v. Schneider, 473 N.W.2d 329, 332 (
Imputation of income to a parent
is appropriate if the parent “chose to be unemployed or underemployed and
neither statutory condition applies.” Franzen v. Borders, 521 N.W.2d 626, 629 (
In considering whether to
impute income, the district court evaluates whether the change of employment
was made in good faith. Giesner v. Giesner,
319 N.W.2d 718, 720 (
With his motion for a reduction in his child-support obligation, appellant submitted a supporting affidavit that stated that he “resigned . . . in order to start my own irrigation business again.” Similarly, in a subsequent affidavit, appellant characterized the circumstances of his job change as occurring “[a]fter deciding to leave [my prior employer] and begin my company.” Only at the motion hearing did appellant’s attorney state for the first time that appellant “involuntarily resigned.” There was no documentary support for this assertion in the record.
In its order, the district court determined that “[appellant] voluntarily discontinued his employment . . . and the income he earned at [his former employer] should be imputed to him for child support and child care purposes.” The district court explained that appellant’s “[a]ffidavits refer to his resigning and leaving this job. Only during oral argument did [appellant’s] attorney mention any involuntary separation from this employment, but no documentation of any involuntary separation was provided.”
In support of her argument that appellant’s voluntary underemployment does not meet the requirements of Minn. Stat. § 518.551, subd. 1b(d), respondent provided documentation of appellant’s annual income from his formerly owned irrigation business for the five years that preceded his employment with the City of Eden Prairie: $8,143 in 1998 (gross); $10,381 in 1999 (net); ($1,881) in 2000 (gross); $526 in 2001 (net); and $7,398 in 2002 (net). The business ended in bankruptcy two years after appellant left. Appellant contends that this income allowed the family to live comfortably and that his one-half of the partnership earned him $8,750 when he cashed out. Appellant further claims that his current venture will be more successful because of its expanded services and client base.
Based on the record, the district court found:
The parties have different opinions
of whether [appellant’s] new business will be successful. Based upon the tax returns of [appellant’s]
prior similar business, [respondent’s] concern and assessment is reasonable. Consequently, it is appropriate and
reasonable to impute to [appellant] the income that he earned before he
voluntarily discontinued his employment at
The district court’s determination that appellant voluntarily resigned from his position is supported in the record. Therefore, we conclude that the district court acted within its discretion by imputing income to appellant and denying appellant’s requested modification.
Appellant’s second issue is
that the original child-support award was not supported by sufficient
findings. We note that appellant never
challenged the original award. As a
result, this challenge is not timely, and he has waived it.
The legislature has since changed and recodified the child-support statute in
chapter 518A. The new law is effective
to calculate child support for filings after January 1, 2007. 2006