Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Anne Heimkes Tuttle, petitioner,
Gregory William Tuttle,
File No. F912307
Joan Miller, 327 Marschall Road, Suite 255, Shakopee, MN 55379 (for respondent)
Steven E. Boynton, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Kalitowski, Judge, Davies, Judge, and Mansur, Judge.*
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant Gregory William Tuttle challenges the modification of his child support order, claiming the Administrative Law Judge (ALJ) inappropriately calculated his income by relying on his earning capacity. We affirm.
Modification of child support is within the district court's discretion and will not be reversed absent an abuse of discretion. Smith v. Smith, 282 Minn. 190, 193, 163 N.W.2d 852, 856 (1968). A district court abuses its discretion when an order is "arbitrary or unreasonable or without evidentiary support," id. or "when its decision is against logic and the facts of the record." Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). This abuse of discretion standard applies equally to the review of an ALJ's decision. Lee v. Lee, 459 N.W.2d 365, 369 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990).
Earning capacity can be used as a guideline for child support when it is impracticable to determine the obligor's income. Beede v. Law, 400 N.W.2d 831, 835 (Minn. App. 1987). Here, at the time the ALJ held the initial hearing on the motion to modify child support, appellant had just started a new job, and the ALJ was unable to accurately determine appellant's income. By the time the review hearing was held to make a final determination of appellant's income, he had just changed jobs again. The ALJ stated at the review hearing:
Well, looking at the * * * tax returns and the W-2's from 1995, I - I'm getting a flavor of this case that there have been a number of different job changes. It's going to be difficult for me to try to use a five-month span of time to establish what his actual pay is. Because I am going to have a very hard time doing that, I am probably going to find it close to being impossible - I am going to need to be looking at his earning capacity.
The ALJ also found:
The Obligor was uncertain whether his return to work at Heritage Claims would result in an increase in his income. He did not present enough evidence of his earnings from Heritage Claims to enable this ALJ to make an accurate finding on his income, based on the recency of his employment, similar to the situation he presented at the initial hearing on the Obligee's motion.
Having determined there was not enough information on current income, the ALJ properly considered the evidence presented by appellant concerning his past employment income. Under these facts, we cannot say the ALJ abused her discretion in determining that it was impractical to determine appellant's actual income, and that it was therefore necessary to consider his earning capacity. Further, we conclude the determination of appellant's earning capacity based on evidence of his past income was not an abuse of discretion.