This opinion will be unpublished and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

C0-96-1843

In Re the Marriage of:

Edward A. Welsch, petitioner,

Appellant,

vs.

Geri L. Brooks,

Respondent.

Filed February 25, 1997

Affirmed

Forsberg, Judge

[*]

Washington County District Court

File No. F788347

Anne Greenwood Brown, Tracey A. Galowitz, Lawson, Marshall, McDonald & Galowitz, P.A., 3880 Laverne Avenue North, Lake Elmo, MN 55042 (for Appellant)

Geri L. Brooks, 6881 Buckingham Road, Woodbury, MN 55125 (Pro Se Respondent)

Considered and decided by Davies, Presiding Judge, Short, Judge, and Forsberg, Judge.

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

FORSBERG, Judge

Appellant Edward A. Welsch appeals the order denying his motion to modify child support. We affirm.

FACTS

The parties were divorced pursuant to a judgment and decree dated February 23, 1988, which gave the parties joint legal custody and respondent physical custody of their two minor children. In October 1993, by order amending the judgment and decree, physical custody of the minor son was changed to appellant; physical custody of the minor daughter remained with respondent. After appropriate offsets, appellant was to pay $183.34 a month in child support.

In December 1994, the district court considered motions from both parties to modify child support. The February 1995 order set guideline support for both children. The amounts were offset and appellant was to pay $346.77. While the motion was pending, appellant was terminated from his job.

In February 1996, appellant brought a motion to modify child support on the basis of a substantial change in earnings. At the administrative hearing, appellant testified that he had no income and that his present wife was supporting him. He also testified to being involved with several small businesses, none of which purportedly provided any income. The administrative law judge (ALJ) denied the motion to modify, finding that appellant's standard of living was inconsistent with his claim of no income.

In April 1996, appellant brought a motion to reconsider, which the ALJ denied. Appellant now appeals the denial of his motion to modify his child support obligation. Respondent seeks an award of attorney fees on appeal.

D E C I S I O N

"Traditionally, a child support modification ruling is disturbed on appeal only if the trial court abused its discretion." Lee v. Lee, 459 N.W.2d 365, 368 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990). This standard of review is also applied when the decision is made by an ALJ. Id. at 368-69. A reviewing court will find an abuse of discretion only where there is a "clearly erroneous conclusion that is against logic and the facts on record * * *." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Child support may be modified if the obligor shows that substantially increased or decreased earnings make the original terms unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996). There is a presumption of a substantial change in circumstances and "the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair" if guideline support based on an obligor's present income would be at least 20 percent and at least $50 per month higher or lower than the current order. Id. The party requesting modification has the burden of proving that a substantial change in circumstances has occurred. Meier v. Connelly, 378 N.W.2d 812, 818 (Minn. App. 1985).

1. Appellant first argues that the ALJ erred in concluding that he had not demonstrated a substantial change in circumstances. The February 1995 child support order indicated that appellant had a net monthly income of $2,387.92. At the March 1996 hearing, appellant testified that he was unemployed and had no income. Based on this change in income, appellant argues, the ALJ should have found a substantial change in circumstances.

Appellant, however, provided no documentation to support his employment status or earnings. Further, his resume stated that he was employed by Environmental Protection Technologies, which appellant described as a commission-type arrangement. Appellant also had interests in numerous businesses. While appellant claims that he received no income from any of these endeavors, these business interests conflict with appellant's testimony that he is unemployed.

Also, evidence of appellant's lifestyle conflicted with his testimony that he had no income. In appellant's affidavit that accompanied his motion for child support modification, he showed monthly expenses of $4,678, including a monthly mortgage payment of $1,324 and a car payment of $500. Yet, according to appellant's testimony, his present wife had a gross yearly income of only $50,000. Appellant also claimed that they took out a $15,000 home equity loan to help with expenses, but he provided no supporting documentation.

The conflicting and missing evidence presented the ALJ with a question of appellant's credibility. When faced with questions of credibility, "[d]eference must be given to the opportunity of the trial court to assess the credibility of the witnesses." Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (citing Minn. R. Civ. P. 52.01); see also Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) ("Conflicts in the evidence * * * are to be resolved by the trial court.").

Appellant also argues that respondent's increase in income constituted a substantial change in circumstances. The February 1995 child support order indicated that respondent had a net monthly income of $1,082. The April 1996 order denying the motion for modification indicated that respondent had a net monthly income of $1,375. In his motion for reconsideration, appellant contended that the increase was substantial and made the child support order unfair. The ALJ, in her order denying reconsideration, found respondent's net monthly income to be $1,349.08 (based on 1995 W-2) or $1,193.09 (based on pay stubs and allowing for a 401(k) deduction). Using the $1,193.09 net earnings figure would result in a 16 percent ($48.06) increase in child support. This is not presumed to be a substantial change in circumstances. We conclude that the ALJ did not abuse her discretion in denying appellant's modification of child support request.

2. Appellant next argues that the ALJ abused her discretion when she relied on appellant's spouse's income as a basis for denying modification of child support.

When determining the obligor's income, the court may not consider the income of the obligor's spouse. Minn. Stat. § 518.551, subd. 5(b)(1) (1996). Appellant misconstrues the ALJ's inquiry into his present wife's income. With evidence of other business interests conflicting with appellant's testimony that he had no income, the ALJ was left with little recourse but to look at appellant's lifestyle to determine if a substantial change in circumstances had occurred.

An examination of the parties' lifestyle may be used to determine support obligations. See Roatch v. Puera, 534 N.W.2d 560, 565 (Minn. App. 1995) (trial court did not err in its use of business records, tax returns, expert testimony, and an examination of parties' lifestyle to determine child support). The ALJ was within her discretion to inquire into the spouse's income to determine if a substantial change in circumstances had occurred.

3. Appellant's final argument is that the ALJ erred in failing to make a specific finding as to his income.

[I]n all child support cases not involving public assistance, the trial court must make specific findings of fact as to the factors it considered in formulating the award.

Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn. 1986); see also Minn. Stat. § 518.551, subd. 5(i) (1996) (if court orders guidelines support, only findings required are those on obligor's income and other significant factors). Findings also are necessary if a court wishes to refuse modification of support. Olson v. Olson, 399 N.W.2d 660, 664 (Minn. App. 1987).

With evidence that conflicted with appellant's income testimony and without documentation from appellant to verify income, it was impossible for the ALJ to make specific findings as to his income. Under Moylan, the record is inadequate if it "fails to reveal that the trial court actually considered the appropriate factors." Moylan, 384 N.W.2d at 865. We conclude that the findings of the ALJ in her order dated April 12, 1996, are adequate to reveal that she considered the parties' earnings, income, and resources in her decision not to modify child support.

4. We decline to award respondent attorney fees on appeal.

Affirmed.

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