This opinion will be unpublished and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

C8-96-1556

In Re the Matter of:

Sharon Marie Romig,

Respondent,

vs.

Daniel Robert Palodichuk,

Appellant.

Filed February 18, 1997

Reversed and remanded

Short, Judge

Dakota County District Court

File No. F7936872

James C. Backstrom, Dakota County Attorney, Karen J. Clayton, Assistant County Attorney, Dakota County Judicial Center, 1560 West Highway 55, Hastings, MN 55033 (for respondent)

Rebecca Hanson Frederick, Rebecca Hanson Frederick Law Offices, Suite 550, 7301 Ohms Lane, Edina, MN 55439 (for respondent)

Ronald B. Sieloff, Sieloff and Associates, P.A., 938 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

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

SHORT, Judge

Daniel Robert Palodichuk filed a postdecree motion to modify child support after he left employment to start his own business. On appeal from an order denying relief, Palodichuk argues the trial court abused its discretion by basing child support on imputed income. We reverse and remand.

D E C I S I O N

The trial court has broad discretion in deciding a motion to modify child support. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse the trial court's decision unless it is clearly erroneous. Id.

I.

Generally, the obligation to pay child support is premised on an obligor's ability to pay. Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991). However, a trial court may impute income for the purpose of calculating child support "if the court finds that a parent is voluntarily unemployed or underemployed." Minn. Stat. § 518.551, subd. 5b(d) (1996); Franzen v. Borders, 521 N.W.2d 626, 628 (Minn. App. 1994). A trial court is precluded from imputing income when the obligor's 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 the obligor's diminished income on the child. Minn. Stat. § 518.551, subd. 5b(d); Franzen, 521 N.W.2d at 628-29.

Palodichuk argues the trial court erred in basing his support obligation on imputed income without finding Palodichuk was either unemployed or underemployed. We agree. The court's findings that (1) Palodichuk currently earned a minimal income, and (2) Palodichuk's voluntary termination of his past employment to start his own business resulted in a decrease of earnings, do not constitute a finding of voluntary unemployment or underemployment. Absent this statutory prerequisite, it was error for the trial court to impute income to Palodichuk.

Moreover, evidence submitted by Palodichuk showed he was actively working to further his new hardwood flooring business by obtaining a $20,000 business loan, purchasing equipment, placing advertisements in local newspapers, and completing flooring contracts for paying customers. On remand, the trial court must weigh this evidence in its determination of whether Palodichuk is voluntarily unemployed or underemployed. Palodichuk's decrease in earnings does not, by itself, implicate the imputed income provision of the child support laws. See Minn. Stat. § 518.551, subd. 5b(d) (requiring finding of voluntary unemployment or underemployment).

Even if the trial court finds Palodichuk is unemployed or underemployed, the court may not impute income to him for the purpose of setting his child support obligation if his unemployment or underemployment is temporary and will lead to an increase in income, or is a bona fide career change that will benefit the parties' child. See Minn. Stat. § 518.551, subd. 5b(d) (removing such fact situations from definition of "voluntarily unemployed or underemployed"). Palodichuk introduced market statistics supporting his prediction of increased future earnings, and presented evidence tending to demonstrate his sincerity in undertaking the new business. See Minn. Stat. § 518.551, subd. 5b(d) (placing burden on obligor to show one of two statutory conditions exists). This evidence was uncontested by the child's mother. If the trial court finds, on remand, that Palodichuk's career change was not bona fide and will not result in increased income, it must do so on the basis of specific findings of fact negating Palodichuk's evidence on these issues.

II.

When a proper basis exists for the imputation of income to a child support obligor, the amount to be imputed is determined by the obligor's estimated earning ability, considering prior earnings history, education and job skills, and the availability of suitable jobs within the community. Minn. Stat. § 518.551, subd. 5b(d). Here, there is no evidence regarding the current availability of jobs suitable for Palodichuk. See Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn. App. 1996) (requiring trial court, on remand, to take evidence on availability of jobs in obligor's new community, where court based determination of earning capacity solely on obligor's previous employment circumstances). In addition, although Palodichuk made recent earnings history available, the trial court based its support award on the wage Palodichuk had earned two years previously. See Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989) (holding current net income must be determined for calculation of child support); see, e.g., Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987) (finding reversible error existed where trial court based support award on prior year's income figures although figures for first half of current year were available). The trial court cannot properly determine Palodichuk's earning capacity without considering the relevant factors expressly provided by the legislature. We reverse and remand for proceedings necessary to make findings of fact consistent with this opinion.

Reversed and remanded.