This opinion will be unpublished and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

C4-96-2266

In Re the Marriage of:

Lori Ann Rohricht, petitioner,

Respondent,

vs.

Michael Edward Rohricht,

Appellant.

Filed April 22, 1997

Affirmed in part, reversed in part, and remanded

Harten, Judge

Dakota County District Court

File No. F0-91-2027

Robert A. Nicklaus, Bruce R. Rubbelke, Nicklaus Law Firm, 103 West Second Street, P.O. Box 116, Chaska, MN 55318 (for Appellant)

Judith L. Oakes, J. Oakes & Associates, Galtier Plaza, Suite 780, 175 East Fifth Street, Box 15, St. Paul, MN 55101 (for Respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.[*]

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

HARTEN, Judge

Appellant father challenges the district court's denial of his motion for modification of physical child custody without holding an evidentiary hearing. He also appeals the district court's calculations of child support owed by both parties. We affirm in part, reverse in part, and remand.

FACTS

Appellant Michael Edward Rohricht (father) and respondent Lori Ann Rohricht (mother) dissolved their marriage in 1992. The district court awarded mother custody of the parties' four minor children, namely, M.R., J.R., K.R., and S.R., now ages 18, 16, 13 and 11, respectively.

Father brought a motion for a change of physical custody in 1993, which the district court denied without holding an evidentiary hearing. In early 1994, however, mother voluntarily allowed J.R. to live with father. M.R. and S.R. subsequently joined J.R. in father's home, but M.R. and J.R. moved back with mother in 1995.

In July 1995, father brought a second motion for a custody modification and also motions for the elimination or reduction of spousal maintenance and reduction of child support. The district court declined to conduct an evidentiary hearing on the custody issue and, except for approving the parties' stipulation that father would obtain custody of S.R., denied father's custody motion. The district court also reduced father's monthly spousal maintenance obligation from $632 to $450 and his monthly child support payments from $1,560 to $1,277.

One year later, in July 1996, mother moved the district court for permission to move the minor children in her custody (M.R. and K.R.) to Florida. According to mother's affidavits, she planned to live with a friend in Florida and enroll in nursing school there. Father filed a countermotion, requesting that the court (1) deny mother's request, (2) modify physical custody of M.R. and K.R., (3) reduce father's current child support obligation, and (4) reduce father's spousal maintenance obligation. The district court declined to conduct an evidentiary hearing on the issue of mother's proposed out-of-state move. The court conducted a brief hearing on custody and visitation matters, however, and ordered (1) transfer of physical custody of M.R. to father, (2) termination of father's spousal maintenance obligation, and (3) reduction of father's monthly child support obligation to $998.37.

On appeal, father argues that the district court erred in (1) refusing to modify custody of K.R. without holding an evidentiary hearing, (2) refusing to impute income to mother for calculation of child support in the amount she relinquished by voluntarily resigning from her job to enter nursing school, and (3) calculating father's child support obligation using his reported 1995 income instead of his 1996 income.

D E C I S I O N

The district court is afforded broad discretion in custody and support cases. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a district court's custody determination absent an abuse of that discretion. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). However, a reviewing court is not bound by and need not give deference to a district court's decision on a purely legal issue. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Review of a denial of an evidentiary hearing on custody is de novo. Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

1. Father argues that the district court erred in denying his child custody modification motion without an evidentiary hearing. Pursuant to Minn. Stat. § 518.185 (1996), a party seeking a modification of custody must submit affidavits supporting the motion. When considering whether to grant an evidentiary hearing, the facts alleged in such affidavits are taken as true, so there can be no disputed facts at that stage of the proceeding. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). In an "endangerment" case under Minn. Stat. § 518.18(d)(iii) (1996), the supporting affidavits must make a prima facie case showing

that (1) a change has occurred in the circumstances of the child or [the custodial parent]; (2) that a modification of custody is necessary to serve the best interests of the child; (3) that the child's present environment endangers his physical or emotional health or emotional development; and (4) that the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child.

Itasca County Soc. Servs. ex rel. Hall v. David, 379 N.W.2d 700, 703 (Minn. App. 1986) (emphasis added); see Minn. Stat. § 518.18(d) (1996) (setting forth same criteria). A "significant degree" of endangerment must exist before modification is proper. Ross, 477 N.W.2d at 756. Evidentiary hearings are "strongly encouraged" where a noncustodial parent alleges "present endangerment." Id.

The district court found that father had not made a prima facie showing of sufficient grounds to change custody of K.R. In making this determination, the district court alluded to father's prior attempts to modify custody and this court's affirmance of the district court's denial of several such motions on grounds of staleness. The district court specifically stated in its order that "[father's] motion to modify custody is clearly 'retaliatory' to * * * [mother's] motions and is not supported by credible facts that justify an evidentiary hearing." Determination of whether father's allegations are credible, however, is appropriately addressed by the district court after conducting an evidentiary hearing, during which the court has the benefit of cross-examination of witnesses. See Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn. App. 1990) (reversing district court's denial of evidentiary hearing for purposes of witness cross-examination and credibility evaluation).

While many of father's allegations are remote in time to his motion, both father and M.R. presented affidavits alleging several episodes of recent misconduct by mother, and other facts that, if true, are sufficient to establish a prima facie case of endangerment as to K.R. Record evidence of father's allegations includes (1) police records dated May 17, 1996, documenting a call from K.R. to father reporting an alleged assault by mother, (2) documentation in the same records of K.R.'s living environment as disorderly, (3) police records dated November 13, 1995, containing a report by an unidentified teacher of K.R.'s that K.R. allegedly had sexual relations with certain men mother had brought home, (4) documentation of a call from K.R. to father in early August 1996, in which K.R. stated that she was going to live with father and did not want to go to Florida with mother, (5) documentation of K.R.'s involvement in an altercation at school, (6) a missing child report completed and filed by mother on May 17, 1996, when K.R. failed to return home, (7) documentation in the same report that when father eventually found her, K.R. stated that she did not want to return to mother's house, and (8) testimony by M.R. that in August 1996, mother and mother's female partner entered the house around 3 a.m. and engaged in an argument; thereafter, mother's partner kicked M.R.'s Sony play station and pushed M.R. after he called her a name and asked her to stop breaking his property. Although the district court may ultimately find these allegations untrustworthy, they are serious enough and recent enough to warrant an evidentiary hearing. Given this record, the trial court erred in denying father's modification motion without holding an evidentiary hearing. We therefore reverse and remand for an evidentiary hearing.

2. Father also argues that the district court erred in failing to impute mother's previous income to her for purposes of calculating guidelines child support. 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). A district court may impute income for the purpose of calculating child support, however, if it 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, 628-29 (Minn. App. 1994). A district court is precluded from imputing income when the obligor's unemployment or underemployment is temporary and will ultimately lead to an increase in income or 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. An obligor generally is not considered voluntarily unemployed or underemployed while the obligor is attending school. In Re Custody of A.S.R., 539 N.W.2d 607, 612 (Minn. App. 1995).

The record demonstrates that (1) as of November 1995, mother was earning a net monthly income of $1,257, (2) mother resigned from her job in July 1996 at the same time she received a personal injury award resulting from an out-of-court settlement, (3) the district court reviewed mother's confidential settlement in camera and imputed a certain amount of income to her from that award, (4) mother testified that she had always wanted to pursue a nursing career, and she believed this was the appropriate time to do so, (5) the district court stated mother's subjective intent to attend school was credible, and (6) father offered no evidence to show mother's bad faith. Under these circumstances, we cannot say that the district court erred in declining to impute to mother her previous income for guidelines support calculations. See Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn. 1982) (holding district court's determination of whether parent justifiably decreased income requires findings on obligor's subjective intent in choosing course of action that created financial hardship).

Father also contends that the district court erred in determining his net income for purposes of calculating guidelines support; specifically, he argues that the district court incorrectly based his net income on his 1995 income, rather than his 1996 income. We disagree. This court must uphold a district court's determination of net income if it has a reasonable basis in fact. Rouland v. Thorson, 542 N.W.2d 681, 685 (Minn. App. 1996). The record shows that in determining father's net income, the district court considered father's 1995 tax return, his paycheck stub dated August 31, 1996, and the fact that his salary had increased approximately $12,500 annually in the prior three years. The district court also found that father had paid the maximum 1996 OASDI[1] contribution by early September 1996 and figured this, and father's Medicare withholding, into its calculations of net monthly income for the remaining months of October through December 1996. Based on these findings, we conclude that the district court did not err in computing father's net income.

Affirmed in part, reversed in part, and remanded.

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

[ ]1Old Age Survivors and Disability Insurance. The district court findings of fact indicate OASDF.