This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-1388

Carol Jean Hauser, petitioner,

Respondent,

vs.

Robert Lind Hauser, Jr.,

Appellant.

Filed December 24, 1996

Reversed and Remanded

Schumacher, Judge

Clay County District Court

File No. F3871051

Todd S. Webb, Clay County Attorney, Beverley L. Adams, Assistant County Attorney, 807 11th Street North, Post Office Box 280, Moorhead, MN 56561-0280 (for Respondent)

Robert J. Schaefer, 501 Main Avenue, Post Office Box 189, Moorhead, MN 56561-0189 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

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

SCHUMACHER, Judge

Appellant Robert Lind Hauser, Jr. (father) claims the administrative law judge (ALJ) erred by denying his motion to modify child support. We agree and we reverse and remand the order of the ALJ.

FACTS

Father and respondent Carol Jean Hauser (mother) were married in 1975 and their marriage was dissolved in 1988. They have four children who have resided with mother since the dissolution. Father moved for modification of child support based on the fact that two of the children were emancipated. The parties did not dispute emancipation.

Father was paying $1,186 in support of the four children. Father sought a reduction to guidelines support for two children of $856, based on his current income. The issue was considered through an administrative process. The ALJ denied the motion to modify and retained child support at the same level.

The ALJ found that father's net monthly income was $2,853 and that his reasonable monthly expenses totaled $2,313. The ALJ found that mother's net monthly income was $419 and that her monthly household expenses were $1,950. The ALJ acknowledged that emancipation of two of the children was a substantial change that warranted a review of the support order. The ALJ denied the motion to modify, instead finding that an upward deviation maintaining support at the current amount was justified. Father appeals.

D E C I S I O N

We apply the same standard of review to the ALJ's modification decision as we would apply to a decision by the district court. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990); Minn. Stat. § 518.5511, subd. 4(h) (1996). Accordingly, we apply an abuse of discretion standard to the ALJ's decision. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (decision to modify child support is within broad discretion of trial court).

Father argues that a reduction in his support was required by statute and case law. We agree. Upon emancipation of a child:

The [remaining] child support obligation shall be determined based on the income of the parties at the time the modification is sought.

Minn. Stat. § 518.64, subd. 4a(c) (1996). Our decisions recognize that emancipation justifies a modification of support. See Reynolds v. Reynolds, 498 N.W.2d 266, 273 (Minn. App. 1993); Beltz v. Beltz, 466 N.W.2d 765, 768 (Minn. App. 1991), review denied (Minn. Apr. 29 and May 23, 1991). Further, using the ALJ's finding of net income, father's support amount exceeded the guidelines by $330 per month or 38 percent and was presumed to be unreasonable and unfair. See Minn. Stat. § 518.64, subd. 2(a) (1996) (presumption applies when guidelines amount would be at least 20 percent and at least $50 per month higher or lower than current support order).

These circumstances support father's motion to modify support to the guidelines amount for two children. See Minn. Stat. § 518.64, subd. 2(a) (support may be modified if terms are unreasonable and unfair); Minn. Stat. § 518.551, subd. 5(i) (1996) (guidelines apply to modification orders). The record does not support the upward deviation ordered by the ALJ. The difference between father's monthly income and expenses, as found by the ALJ, will result in a shortfall even under guidelines support for two children. We reverse and remand for modification consistent with this opinion.

Reversed and remanded.