Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
n/k/a Beverly Ann Goerisch,
Scott Lawrence Glor,
Filed 26, 1998
Affirmed in part and reversed in part
Hennepin County District Court
File No. 179143
Scott L. Glor, 12054 Mississippi Drive, Champlin, MN 55316 (respondent pro se)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Schultz, 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.
U N P U B L I S H E D O P I N I O N
Appellant Beverly Glor, n/k/a Beverly Goerisch (Goerisch), seeks review of orders modifying her child support obligation, assessing arrearages, and awarding attorney fees to respondent Scott Glor. Because the court properly applied the child support guidelines and because appellant failed to pay support as ordered, we affirm the order of support and the assessment of arrearages. However, because appellant's challenge to the issue of support was made in good faith, we reverse the award of attorney fees.
D E C I S I O N
The parties' marriage was dissolved in 1991. They shared joint legal custody of their child, with Goerish having sole primary physical custody. In lieu of child support, Glor transferred to Goerisch all interest in the parties' unencumbered homestead, with a market value of $120,000.
In 1994, the court temporarily changed custody to Glor. Goerisch was unemployed and receiving reemployment compensation at the time, and was ordered to make payments equal to 25 percent of her net reemployment benefits as support, which she failed to do.
In a series of orders entered between November 1996 and January 1998, the district court granted a permanent change of physical custody to Glor; found that Goerisch had been deliberately self-limiting her income since June 1996, when her reemployment benefits ended; ordered monthly support payments based upon Glor's last net earnings pursuant to the guidelines in the amount of $389, retroactive to July 1, 1996; ordered payment of arrearages from February 1996 through June 1996, equal to 25 percent of her net reemployment benefits; and assessed attorney fees against Goerisch in the amount of $2,500, citing her bad faith in self-limiting her income and the frivolous nature of her custody challenge.
A support order may be modified if there has been a substantial change in circumstances of a party. Minn. Stat. § 518.64, subd. 2 (Supp. 1997). A change in physical custody is presumed to be a change of circumstances justifying modification of a support award. Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn. App. 1994).
When modifying support, the court is instructed to follow the child support guidelines. Minn. Stat. § 518.551, subd. 5(i) (1996). A party may seek departure from the guidelines based upon the parties' financial situation, the child's needs, or the standard of living which the child would otherwise enjoy, had the marriage of the parties not been dissolved. Minn. Stat. § 518.551, subd. 5(c) (1996). The party wishing to deviate has the burden of proving that departure from them is justified. Buntje, 511 N.W.2d at 481.
Goerisch objects to the payment of support, citing the parties' disparity of income and the fact that Glor was never ordered to make monthly support payments. The failure to order support payments alone is not justification for departure. See id. at 480-81 (although mother received no support when she had custody, parties' incomes were roughly equivalent, and child's standard of living did not change, court did not abuse its discretion by applying statutory guidelines and granting support to father following change in custody).
Further, disparity of income also does not justify a departure. One factor for the court's review is the standard of living which the child would otherwise have enjoyed had the marriage of the parents not been dissolved. See County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (child entitled to enjoy benefits of income of both parents); Kreidler v. Kreidler, 348 N.W.2d 780, 785 (Minn. App. 1984) (whenever possible, court should minimize financial consequences of dissolution for child).
When setting an amount for support, the court must determine the net monthly income of the obligor, which is the gross monthly income of the obligor, less certain specified deductions for taxes, pension and union dues, and hospitalization. Minn. Stat. § 518. 551, subd. 5(b). "Income" is defined as "any form of periodic payment * * * [including] reemployment insurance." Minn. Stat. § 518. 54, subd. 6 (Supp. 1997). If the court finds that a parent is voluntarily unemployed or underemployed, it may impute a level of income to that parent, unless the situation is temporary and will lead to an increase in income or it represents a bona fide career change. Minn. Stat. § 518.551, subd. 5b(d) (Supp. 1997).
Goerisch presented no evidence that would justify her decision not to work. She is not changing careers, building a business, pursuing education, or in any other way hampered from being employed. On the contrary, the district court found that she had earned about $25,000 annually in her last job, had been regularly promoted, and was laid-off and not actively seeking employment. An obligor has the burden of showing the inability to pay is in good faith, and Goerisch has failed to sustain that burden. Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991).
We conclude that the district court properly used the salary of Goerisch's last job as a measure for imputing income and setting her current child support obligation. Minn. Stat. § 518.551, subd. 5b(d). We further conclude that the court properly ordered payment of arrearages based on the fact that she had been ordered to pay 25 percent of her reemployment benefits as support and failed to do so.
We therefore affirm the district court's modification of Goerisch's child support obligation and its assessment of arrearages, but reverse its award of attorney fees against Goerisch.
Affirmed in part and reversed in part.