This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-95-2285

In Re the Marriage of:

Rose Marie Taylor, petitioner,

Respondent,

vs.

David C. Taylor,

Appellant.

Filed May 28, 1996

Affirmed

Willis, Judge

Winona County District Court

File No. F4881319

Julius E. Gernes, Winona County Attorney, Nancy L. Buytendorp, Assistant County Attorney, 171 West Third Street, Winona, MN 55987 (for Respondent)

Lawrence Downing, Lawrence Downing & Associates, 330 Norwest Center, Rochester, MN 55902 (for Appellant)

Considered and decided by Willis, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from an order denying his motion to modify his child support and maintenance obligations, father argues that the administrative law judge erred by (1) imputing income and (2) suspending, rather than terminating, his spousal maintenance obligation. We affirm.

FACTS

David and Rose Marie Taylor ended their 26-year marriage in 1990. The dissolution court ordered father, then a systems analyst at Winona State University, to pay monthly guideline child support of $672 for the parties' two minor children. In addition, the court ordered father to pay monthly spousal maintenance of $300. Three years later, when one of the two children reached her majority, the court modified father's child support obligation to $610 per month, with a reduction to $508 during July and August.

In September 1994, father voluntarily quit his job at Winona State, claiming there was no opportunity for advancement. He moved to Maryland to be with his fiance and near his extended family. Four months later and still unemployed, father moved to modify child support and to terminate his spousal maintenance obligation.

The administrative law judge (ALJ) found that father had not demonstrated a substantial change in financial circumstances to support modification of his child support obligation and that the terms of the prior order were not unfair or unreasonable. The ALJ also rejected father's request to terminate his spousal maintenance obligation and instead suspended the obligation until further direction of the court. On appeal, father characterizes the ordered maintenance as "rehabilitative" and claims that the ALJ's order is in error because he is unemployed and mother is gainfully employed, earning a salary greater than that originally anticipated in the dissolution decree.

D E C I S I O N

I.

An ALJ has authority identical with that of a district court judge to order and to enforce child support obligations. Minn. Stat. § 518.5511, subd. 4(c) (1994) recodified at Minn. Stat. § 518.5511, subd. 1(e) (1995). When reviewing an ALJ's order regarding child support, this court applies an abuse of discretion standard. Lee v. Lee, 459 N.W.2d 365, 368 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990) (determining that standard of review for child support orders is same whether decision issues from district court or through administrative hearing process). As with a district court's factual determinations, we review the ALJ's findings of fact under a clearly erroneous standard. See Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984) (reviewing a district court's factual determinations). Clearly erroneous means manifestly contrary to the weight of the evidence. Pedro v. Pedro, 489 N.W.2d 798, 801 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

A child support obligation may be modified if either party has experienced a substantial change in circumstances that makes the terms of the current support order unfair and unreasonable. Minn. Stat. § 518.64, subd. 2(a) (1995 Supp.). The burden of showing a change of circumstances rests with the moving party. Johnson v. Fritz, 406 N.W.2d 614, 616 (Minn. App. 1987).

An order for child support may be based on imputed income if the obligor is voluntarily unemployed or underemployed, unless the obligor shows that

the unemployment or 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.

Minn. Stat. § 518.551, subd. 5b(d); Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994) (concluding that obligor is voluntarily unemployed or underemployed "if the obligor chose to be unemployed or underemployed and neither statutory condition applies").

Father has provided no evidence demonstrating that his unemployment is temporary and will lead to an increase in income. Moreover, father is voluntarily unemployed, in that he chose to quit his job. See Franzen, 521 N.W.2d at 629. There is no evidence that father was making a bona fide career change. While the record reveals an extensive job search in the computer industry on father's part, most of this effort occurred after he had quit his job and moved out of state. Father left a position after 19 years with nothing more than speculation that his unemployment would be temporary and would lead to an increase in income. The ALJ properly imputed income to father because he was voluntarily unemployed and unable to show that he met either statutory condition. [1]

II.

Like a district court, an ALJ has broad discretion to order and enforce awards of spousal maintenance. Minn. Stat. § 518.5511, subd. 4(c). On appeal, this court may only determine whether the ALJ abused his or her discretion. Cf. Lee, 459 N.W.2d at 368-69 (construing appropriate standard of review for issues involving Minn. Stat. § 518.5511, subd. 4(c)).

Modification of a spousal maintenance award is proper where one party has experienced a substantial change of circumstances that makes the terms of the current obligation unfair and unreasonable. Minn. Stat. § 518.64, subd. 2(a). Father claims the ALJ erred by reserving maintenance, rather than terminating it, because mother was gainfully employed at a salary greater than that anticipated in the dissolution decree. Therefore, he argues, mother had exceeded the objective for the dissolution decree's award of "rehabilitative" maintenance.

We disagree with father's suggestion that the spousal maintenance award was for rehabilitative purposes. It appears that the dissolution court awarded spousal maintenance because mother was unable to provide for her needs

less for reasons of lack of education and training than as a result of scarcity of jobs which would provide her with a living wage. * * * She can be expected to eventually become self-supporting. It is difficult to say when the result might reasonably be obtained, however.

Thus we need not determine whether mother had satisfied a condition of rehabilitative maintenance.

Our focus instead is on whether the ALJ abused his discretion by reserving maintenance in order to retain jurisdiction over the issue. In his appeal brief, father appears to argue that reserving the issue of spousal maintenance is appropriate only where a spouse's health is uncertain. As support, he cites Wopata v. Wopata, 498 N.W.2d 478 (Minn. App. 1993) and Van de Loo v. Van de Loo, 346 N.W.2d 173 (Minn. App. 1984). Father suggests a narrow, superficial reading of Wopata and Van de Loo. We believe these cases stand for the proposition that a district court does not abuse its discretion by reserving the issue of spousal maintenance where the parties' situation is too unsettled for a sound, final judicial determination. For example, in Wopata, the court found that while both parties were financially self-sufficient, husband's health condition was uncertain. 498 N.W.2d at 485. Likewise in Van de Loo, this court held that

[r]eservation of the [spousal maintenance] issue under these facts protects the interests of appellant as well as respondent. Respondent has a potential source of protection if her health deteriorates significantly. Appellant has no present obligation to pay maintenance and may never be required to do so.

346 N.W.2d at 178.

Under the present facts, the ALJ did not abuse his discretion by suspending father's maintenance obligation. Given father's uncertain employment situation, it seems reasonable to postpone determination of the maintenance issue until father is again employed. Father has no present obligation to pay spousal maintenance. For now, however, the ALJ's order protects the interests of both parties.

Affirmed.


Footnotes

[1]There is no factual support or legal merit to father's contentions that the ALJ's order precludes him from remarrying or moving to be near his extended family, causes him to be indentured to Winona State, or restricts his right to interstate travel.