This opinion will be unpublished and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

C5-96-428

State of Minnesota,

County of Clay and

Joddie C. Gilbertson, petitioner,

Respondents,

vs.

Terry A. Graff,

Appellant.

Filed January 14, 1997

Reversed and remanded

Klaphake, Judge

Clay County District Court

File No. F1-89-50446

Todd S. Webb, Clay County Attorney, Beverley L. Adams, Assistant County Attorney, Clay County Courthouse, 807 11th Street North, P.O. Box 280, Moorhead, MN 56561-0280 (for Respondents)

Terry Graff, 408 17th Street N.W., #3, East Grand Forks, MN 56721 (Appellant Pro Se)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Foley, Judge.[*]

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

KLAPHAKE, Judge

Obligor Terry A. Graff appeals from the Administrative Law Judge's (ALJ) order modifying child support to the child support guidelines amount. Because the ALJ failed to make findings on significant evidentiary factors, we reverse and remand.

D E C I S I O N

1. In addition to the child support guidelines, the court "shall take into consideration debt if reasonably incurred for necessary support or generation of income." Minn. Stat. § 518.551, subd. 5(i) (1994). Here, the record establishes that appellant incurred substantial student loan debt while receiving the student loan monies and attending law school. This court previously held that excess proceeds from the student loans were "income" for purposes of calculating child support. Gilbertson v. Graff, 477 N.W.2d 771, 774 (Minn. App. 1991). It follows from the use of the loans for support that this debt falls within subdivision 5(i). Accordingly, to comply with the statute, the ALJ should have made a finding on the amount of the debt.

2. If the court does not deviate from the guidelines, it shall make written findings on the obligor's income and "any other significant evidentiary factors affecting the determination of support." Minn. Stat. § 518.551, subd. 5(c)(3) (1994). In addition to the student loan debt, appellant's other monthly expenses are another "significant evidentiary factor." The ALJ stated that he proceeded "without knowledge of [appellant's] actual monthly expenses," because they were not verified. The record and transcript indicate, however, that respondent questioned appellant in court and under oath regarding his unverified and unsigned financial affidavit. Therefore, appellant effectively adopted the affidavit as his. Because the affidavit and appellant's testimony were included in the record, the ALJ had adequate evidence from which to make a finding on appellant's expenses and should have done so.

3. The obligation to pay child support is premised on the obligor's present ability to pay. Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991). Financial ability to pay is also a specific prerequisite to an order requiring contribution to unreimbursed medical and dental expenses. Minn. Stat. § 518.171, subd. 1(c) (1994 & Supp. 1995) (if court finds there are unreimbursed expenses and obligor has financial ability to contribute, court shall hold obligor liable). Absent findings on appellant's student loan debt and his expenses, the ALJ's finding on ability to pay is unsupported by the evidence and therefore erroneous. A finding on the existence of unreimbursed medical and dental expenses is also required under the statute. Id.

4. The amount of arrearages was disputed and expressly left unresolved in the proceedings. Consequently, it was error to make a finding on arrearages.

5. The paramount public policy driving child support law in Minnesota is the welfare of children. See Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970). Nevertheless, as noted above, any calculation of child support must be based on the parents' circumstances. Appellant's circumstances have been considered, and his contention that he is penalized by the courts through the child support statutes is unfounded.

Reversed and remanded for findings consistent with this opinion.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.