This opinion will be unpublished and

may not be cited except as provided by

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




In re the Marriage of:

Kerry Lynn Williams, petitioner,



Dale William Iversen,


Filed December 30, 1997

Affirmed in part, reversed in part, and remanded.

Randall, Judge

Dakota County District Court


Michael G. Hamilton, Tanner, Hamilton, & Associates, P.A., 755 Westview Dr., P.O. Box 65, Hastings, MN 55033 (for respondent)

Jane E. Brooks, 1080 W. County Rd. E., Shoreview, MN 55126 (for appellant)

Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Norton, Judge.



Appellant argues the district court erred when it: (1) reduced and suspended respondent's child support obligation; (2) refused to grant him a hearing on the issue of child support contempt; (3) refused to order respondent to make employment searches; and (4) found that he had dependent medical and dental insurance. Appellant also asks this court to correct a clerical error in the district court's order. We affirm in part, reverse in part, and remand.


Appellant Dale W. Iversen and respondent Kerry Lynn Williams (n/k/a Kerry Lynn Adelmann) were divorced in 1987. On November 6, 1990, Iversen was awarded sole physical custody of the party's two minor children. Williams was ordered to pay $250 per month in child support and to keep all medical, hospitalization, and dental insurance offered through her employer in full force and effect. All uninsured health care expenses were to be split equally by the parties.

In January 1996, Williams accepted employment with Peak Staffing, a temporary agency, and was placed in a full-time temporary assignment at Allianz Insurance, earning $11 an hour. In October 1996, Williams was forced to leave this employment because of complications with her pregnancy. In November 1996, Williams gave birth to a daughter. Since that time Williams has not returned to work, instead, opting to care for her newborn daughter.

In October 1996, Williams brought a motion for temporary and permanent change in physical custody in Dakota County District Court. In response, Iversen filed a motion seeking to enforce the support provisions of the November 6, 1990 Order, and to increase Williams's child support obligation based on a substantial change of circumstances. Iversen also sought a contempt order against Williams to compel her to comply with her child support obligation. In December 1996, Williams brought a countermotion seeking to reduce child support, deny Iversen's motions, and for an award of attorney fees.

The district court heard the matter and on December 13, 1996, filed its order, denying Iversen's motion for contempt, suspending Williams's obligation to pay child support as of January 1, 1997, and reserving the issues of increase or decrease in child support and unpaid, unreimbursed, and uncovered medical, hospital, and dental insurance until the evidentiary hearing on the issue of changing physical custody.

In January 1997, Iversen brought a motion asking the court to reconsider its order. Iversen also moved the court to order Williams to disclose information concerning health and medical insurance coverage that she had for the parties' two minor children, offered through her husband's employer. On February 4, 1997, Williams moved the court for attorney fees and asked that the court deny Iversen's motions.

The parties' motions were heard on February 21, 1997. At the hearing, Williams withdrew her request for a change in custody. Consequently, the district court issued an order, canceling the evidentiary hearing on the issue of custody. On April 3, 1997, the district court filed its order: (1) suspending as of January 1, 1997, Williams's obligation to pay child support until further order of the court; (2) granting Williams's motion to decrease child support; (3) ordering Williams to report quarterly in writing, all her good faith "employment pursuits;" (4) barring either party from bringing a motion until 6 months after the date of the Order; (5) awarding Iversen $3,275.25 for child support arrearages; (6) denying Iversen's motion for reimbursement of medical insurance premiums and uninsured medical and dental costs through December 31, 1996; and (7) ordering Williams to report to Iversen and the court file, all evidence of medical insurance premiums and uninsured medical and dental costs.


Iversen argues that the district court erred when it reduced and suspended Williams's child support obligation after she gave birth to a child from her second marriage. Iversen claims that Williams's decision to stay at home after giving birth to care for her newborn child was voluntary and required the court to impute income to her. According to Iversen, the effect of the district court's order was to allow Williams to favor her obligation to her newborn child over her earlier established child support obligation to the children of her marriage to Iversen.

A child support order may generally be modified on a showing of substantially increased or decreased earnings or needs of a party or the children, making the terms of the existing order unreasonable and unfair. Allan v. Allan, 509 N.W.2d 593, 596 (Minn. App. 1993). The decision to modify child support lies within the broad discretion of the district court and its decision will not be reversed unless its conclusion is against logic and the facts on the record. Schneider v. Schneider, 473 N.W.2d 329, 331 (Minn. App. 1991).

A substantial change in circumstances is presumed if, after applying the child support guideline in Minn. Stat. § 518.551, subd. 5 (1996) to the current circumstances of the parties, it "results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order." Minn. Stat. § 518.64, subd. 2 (1996). If the court does not deviate from the guidelines, the court is required to make written findings concerning the amount of the obligor's income "and any other significant evidentiary factors affecting the determination of child support." Minn. Stat. § 518.551, subd. 5(i) (1996); see also Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) (holding that court need only make findings on obligor's income and other factors "affecting" the support determination).

Here, the district court failed to make findings concerning Williams's income. In its attached memorandum, however, the court noted that although Williams was

employed, earning $11 an hour, she was forced to quit to give birth to her daughter, is caring for that daughter, and is unemployed with no time frame for returning to work. The trial court assumed that since Williams's employment income went from $11 per hour to $0, she would have no support obligation under the guidelines. This change results in a calculated child support order for Williams that is 20 percent and $50 lower than the $250 per month she was initially ordered to pay. The court's findings in its attached memorandum support the conclusion that a substantial change in Williams's circumstances has occurred.

The district court's lack of specific findings concerning Williams's income is a problem. It is unclear whether Williams is deriving any nonemployment income, such as income from investments, rentals, interest on bank accounts, etc., while she is at home caring for her newborn child. The record is silent on the issue. She may have none. We simply are not sure. If Williams is receiving nonemployment income, the court could use that amount to calculate a child support obligation, if any is called for. Because the district court failed to make findings concerning Williams's income, this court has no meaningful way to review the appropriateness of the district court's decision to reduce and suspend Williams's child support obligation. See Abbott v. Abbott, 481 N.W.2d 864, 867 (Minn. App. 1992) (stating that "[w]ithout findings, it is nearly impossible for the appellate court to conduct a meaningful review"). Therefore, we remand so that specific findings may be made with regard to Williams's nonemployment income, if any.

Iversen claims that the court erred when it reduced and suspended Williams's child support obligation because it allowed Williams to favor her current child over the children from her marriage to Iversen. Iversen argues that because Williams voluntarily decided to leave her job and care for her newborn child, the district court should have imputed income to Williams and set her child support obligation accordingly.

If the court finds a parent to be voluntarily unemployed, the court is required to calculate child support based on a determination of imputed income, unless the court finds that the unemployment is temporary and will lead to an increase in income, or that it represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the children. Minn. Stat. § 518.551, subd. 5b(d) (Supp. 1997).

Here, it appears that the district court decided to reduce and suspend Williams's child support obligation while she was caring for her newborn child by her subsequent marriage. First, a reduction and/or suspension of child support for a reasonable period of time is allowed for a mother/obligor to stay at home to care for a subsequent newborn child. But after a period of time, continuing unemployment by choice could go beyond what is necessary. If that happens, under Minn. Stat. § 518.551, subd. 5b(d), the unemployment has now become voluntary, and in that case, a court could be required to impute income to the obligor/mother. See Kuchinski v. Kuchinski, 551 N.W.2d 727, 728-29 (Minn. App. 1996) (holding that by terminating employment to move out of state for reasons unrelated to obligor's career, obligor becomes voluntarily unemployed requiring income to be imputed pursuant to Minn. Stat. § 518.551, subd. 5b(d)). There are exceptions to "imputed income," such as unemployment due to a bona fide career change. Minn. Stat. § 518.551, subd. 5b(d).

The general principle has long been acknowledged that an obligor cannot automatically avoid a support obligation from a previous marriage by incurring obligations to a second family. Quist v. Quist, 207 Minn. 257, 259-60, 290 N.W. 561, 562 (1940), cited in Hayes v. Hayes, 473 N.W.2d 364, 366 (Minn. App. 1991). While the obligation of parents to support minor children of a subsequent marriage is clear, the rights of children from a prior marriage that have been established by a dissolution decree are crucial. See Huston v. Huston, 412 N.W.2d 344, 347 (Minn. App. 1987) (holding that obligations resulting from a second marriage do not relieve the obligor of his duty to first wife and children, although extenuating circumstances may be considered.). There is a long line of cases holding male obligors to the obligations of a first marriage, even though they have exercised the right to establish a second family. The legislature and the cases are not gender specific and apply equally to women and men obligors. See State ex rel. Forslund v. Bronson, 305 N.W.2d 748, 753 (Minn. 1981) (holding statute requiring support of illegitimate children is gender neutral). Respondent is subject to the same standard on the issue of second families as all other obligors.

We note that as of November 1997, it will have been one year since Williams gave birth. Her right to stay at home to care for this child is of the highest importance. But at some point, her decision to remain at home with her child and not work may become "voluntary," and thus place into play the statute and cases discussing imputed income. Thus, we remand the matter to the district court to make findings on whether Williams is now voluntarily unemployed and whether, in fairness, income should be imputed to her.

Next, Iversen argues the district court erred when it refused to grant him an evidentiary hearing on the issue of child support contempt. We disagree.

"Minnesota courts have statutory authority to enforce * * * child support obligations by imposing sanctions in contempt proceedings." Engelby v. Engelby, 479 N.W.2d 424, 426 (Minn. App. 1992). A child support obligor may be cited for contempt if the obligor disobeys an order for child support. Minn. Stat. § 518.24 (1996). The obligor is presumed to have an income from a source sufficient to pay the support order and such order "constitutes prima facie evidence that the obligor has the ability to pay the award." Id.

Here, Williams was in arrears on her child support obligation in the amount of $3,275.25 as of December 31, 1996. The court reduced William's child support obligation to $0 and then suspended it to allow Williams to give birth and to care for her newborn. Consequently, Williams is not presently in arrears under the current child support order. As such, Iversen was not entitled to an evidentiary hearing on the issue of contempt. "Civil contempt proceedings are designed to induce future performance of a valid court order, not to punish for past failure to perform." Engelby, 479 N.W.2d at 426 (citing Minnesota State Bar Ass'n v. Divorce Assistance Ass'n, 311 Minn. 276, 285, 248 N.W.2d 733, 741 (1976)). To hold Williams in contempt for failure to pay her child support obligations as accrued through December 31, 1996, would be to punish her for her past failure to perform. This is impermissible. The district court did not err in refusing to grant Iversen an evidentiary hearing on the issue of child support contempt.

Iversen argues that the district court erred when it found he had dependent health and medical insurance coverage for the parties' two minor children and when it refused to order Williams to disclose information regarding dependent coverage offered through her husband's employer. We agree.

A district court's findings of fact will not be set aside unless they are clearly erroneous. Minn. R. Civ. P. 52.01. "Findings are clearly erroneous if they are not reasonably supported by the evidence." Younggren v. Younggren, 556 N.W.2d 228, 232 (Minn. App. 1996).

Pursuant to Minn. Stat. § 518.171, subd. 1(a)(1) (Supp. 1997), the district court is required to "expressly assign or reserve the responsibility for maintaining medical insurance for the minor children and the division of uninsured medical and dental costs." The district court is also required to order the party with the better group dependent health and dental insurance coverage or health insurance plan to provide coverage on any plan that is available to that party on a group basis, through an employer or union, or through a group health plan governed by ERISA. Minn. Stat. § 518.171, subd. 1(a)(2) (Supp. 1997). If dependent health or dental insurance is not available to the obligor or obligee on a group basis or through an employer or union, or group insurance is not accessible to the obligee, the court may require the obligor to obtain other dependent health or dental insurance, to be liable for reasonable and necessary medical or dental expenses, or to pay no less than $50 per month toward the cost of providing such coverage. Minn. Stat. § 518.171, subd. 1(b) (Supp. 1997).

Here, the district court failed to make any findings on whether Iversen actually had any dependent health or dental insurance in place for the parties' two minor children. The court simply ordered Iversen responsible for such coverage. The record indicates that although Iversen once had health care insurance in place for the two minor children, he no longer has that coverage in place. The record that we have indicates that being self-employed, he has no group health or dental plan in place through his business. The record that we have further indicates that Williams, through her husband's employer, has the better group health care insurance available for the two minor children.

Given the district court's lack of specific findings on this issue and the conflicting evidence in the record, we remand the matter so the district court can make appropriate findings, and give the two minor children of the parties the benefit of the statute regarding medical coverage. At this point, it appears that Williams has the better plan.

Further, Iversen asks this court to correct what appears to be a clerical error in the district court's order. As part of its April 3, 1997 Order, the district court entered a judgment in the amount of $3,275.25 against Williams for child support arrearages through December 31, 1997. As Iversen claims, this appears to be a clerical error on the part of the district court. The affidavit of Sue Bruber, the Dakota County Support and Collections officer, establishes that Williams was in arrears on her child support obligation in the amount of $3,275.25 for the period of time between September 1, 1996 through December 31, 1996. By definition, at the time of the trial court order, Williams could not have been in arrears "through December 31, 1997," because that obligation had not yet come due. Also, we note that as of April 3, 1997, the district court reduced Williams's child support to zero and then suspended it. Thus, on its face, a court order defining Williams's arrearages through December 31, 1997, is suspect.

Thus, for clerical purposes, we modify that part of the district court order barring the parties from bringing any motions for a period of time, and order the district court to allow Iversen to bring a motion under Minn. R. Civ. P. 60.01 to correct what appears to be a noncontroversial clerical error. The district court, of course, can take what evidence it deems proper to decide the issue on the merits. We do not mandate a change, but merely modify the temporary bar against motions to allow this judgment to reflect the intent of the district court.

Finally, Iversen claims that the district court erred when it refused to order Williams to conduct employment searches. We disagree. As a simple matter, Williams (and all other obligors, women and men) is not compelled to work to meet a child support obligation. If the court at a later date sets Williams's support obligation at an amount above zero, and Williams still refuses to become employed, the court may at that time impute income to her if it determines that she is voluntarily unemployed. See Minn. Stat. § 518.551, subd. 5b(d) (permitting court to impute income). On this fact situation, we conclude that the district court did not err in refusing to compel Williams, at this time, to conduct an employment search.

Affirmed in part, reversed in part, and remanded.