This opinion will be unpublished and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

C8-97-2247

Hennepin County,

Plaintiff,

Christine Marie DuSchane,

Appellant,

vs.

James Michael McCanney,

Respondent.

Filed June 30, 1998

Affirmed

Forsberg, Judge *

Hennepin County District Court

File No. PA23541

Lynn A. Wolters, Wolters Law Office, 5001 W. 80th St., Suite 745, Bloomington, MN 55487 (for appellant)

Mark Nygaard, Nygaard & Longe, 210 Ivy League Place, 475 N. Cleveland Ave., St. Paul, MN 55104 (for respondent)

Considered and decided by Short, Presiding Judge, Willis, 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, an obligee parent, challenges the ALJ's refusals to include respondent's overtime income in calculating his child support obligation, to require respondent to contribute to the child's private school tuition, and to make an upward deviation from the guidelines. Because we see no abuse of discretion in the ALJ's determinations, we affirm.

FACTS

Appellant Christine DuSchane and respondent James McCanney are the parents of P.M.D., born January 15, 1991. When P.M.D. was eight months old, appellant was given sole legal and physical custody, and respondent's paternity was adjudicated. Respondent has paid court-ordered child support ever since. The amount has fluctuated because respondent has had intermittent employment in different fields as well as periods of unemployment. His current average net monthly income is $2,437. Appellant's motion for modification led to monthly child support of $660.50, the guideline amount of $609 plus $51.50 for child care expenses.

P.M.D. attends private school. Respondent has made voluntary contributions to the tuition, which, including transportation, is about $11,000 annually; respondent has also voluntarily paid for extra expenses such as music lessons.

Appellant challenges the ALJ's refusals to consider respondent's overtime in setting child support, to order respondent to contribute to tuition, and to make an upward deviation from the child support guidelines.

D E C I S I O N

Modification of child support is within the trial court's discretion and will not be reversed absent an abuse of discretion. Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974).

1. Overtime

The ALJ excluded both respondent's overtime income and appellant's additional income from transcript fees when calculating medical and daycare cost-sharing and child support. Appellant argues that it was error to exclude respondent's overtime pay. Minn. Stat. 518.64, subd. 2(c) (Supp. 1997), provides:

On a motion for modification of support, the court:

* * * *

(2) shall not consider compensation received by a party for employment in excess of a 40-hour work week, provided that the party demonstrates, and the court finds, that:

(i) the excess employment began after entry of the existing support order;

(ii) the excess employment is voluntary and not a condition of employment;

(iii) the excess employment is in the nature of additional, part-time employment, or overtime employment compensable by the hour or fractions of an hour;

(iv) the party's compensation structure has not been changed for the purpose of affecting a support or maintenance obligation;

(v) in the case of an obligor, current child support payments are at least equal to the guidelines amount based on income not excluded under this clause;

* * * *

Respondent testified that he did not work for his present employer when the previous child support order went into effect, that his overtime is voluntary, that it is additional, part-time, and paid by the hour, that it is available to all employees on the basis of seniority, and that it has nothing do with child support obligations. The ALJ correctly excluded respondent's overtime and used his base pay to set child support.

Appellant relies on Carver County Community Social Services v. Fritzke, 392 N.W.2d 290, 293 (Minn. App. 1986) (holding that including overtime that was "a regular part of [the obligor's] employment and is not merely seasonal or sporadic" was not an abuse of discretion). Fritzke is distinguishable both on law and on facts: the statute excluding overtime was not in effect at the time of Fritzke, and the overtime in Fritzke was a regular part of employment, while respondent's overtime is sporadic and in addition to regular employment.[1]

The ALJ did not abuse her discretion in following the statute and excluding respondent's overtime.

2. Tuition contributions

Appellant cites Fuller v. Glover, 414 N.W.2d 222 (Minn. App. 1987), to argue that the ALJ abused her discretion in failing to order respondent to contribute a fixed amount to P.M.D.'s tuition.[2] However, Fuller is factually distinguishable on two counts. First, in Fuller the obligor had income from a trust containing assets valued at nearly $4,000,000; respondent has no significant assets other than his earned income. Second, the Fuller obligor told the court he would pay a fixed amount for tuition each month if child support were reduced below the guideline amount; respondent agrees to pay the guideline amount, but refuses to be assessed a specific amount for tuition. Fuller does not support requiring respondent to pay tuition.

While the parties may agree on the benefits of private school for their child, such an agreement does not require the ALJ to order respondent to pay tuition in addition to the amount paid in guideline support.

3. Departure from the guidelines

Appellant argues that if the ALJ did not abuse her discretion in refusing to order respondent to pay tuition, her discretion was abused by refusing an upward departure from the guidelines. Appellant relies on McNulty v. McNulty, 495 N.W.2d 471 (Minn. App. 1993), review denied (Minn. Apr. 12, 1993). McNulty concerned a high school age child who attended private school and had enjoyed a high standard of living during the marriage. The obligor's income was more than three times the maximum income mentioned in the statute; he paid the statutory maximum child support, then $1,000, in child support, and made voluntarily monthly payments of $800. On the obligee parent's motion, his child support obligation was raised to $1,850 monthly to enable the child to continue enjoying the standard of living she had enjoyed during the marriage. This court affirmed, noting that the circumstances of the case were unique. They differ significantly from the circumstances here: no standard of living was established during the marriage because the parties were never married; respondent has had an erratic income that never approached exceeding the guideline maximum. McNulty does not mandate an upward departure.[3]

The ALJ did not abuse her discretion in setting support at the guideline level. See Minn. Stat. 518.551, subd. 5(i) ("The guidelines in this subdivision are a rebuttable presumption and shall be used in all cases when establishing or modifying child support.").[4]

The ALJ did not abuse her discretion in refusing to consider respondent's overtime, refusing to order tuition payment, and refusing to deviate from the child support guidelines.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

[1] Appellant's reliance on Lenz v. Wergin, 408 N.W.2d 873 (Minn. App. 1987), and Strauch v. Strauch, 401 N.W.2d 444 (Minn. App. 1987), is similarly misplaced. Both cases included overtime pay in the calculation of net income for child support, but both preceded the statute excluding it. The cases are also distinguishable on their facts: Lenz included overtime because it was a regular part of the obligor's employment; Strauch included overtime because it had been a regular, steady source of income for several years.

[2] There was originally an order that respondent pay half the tuition. However, the referee's order of November 28, 1995, found that the parties had agreed that order would cease and they would determine the issue of tuition voluntarily between them.

[3] Even if appellant's income were comparable to the obligor's in McNulty, "an obligor's high income alone will not support an upward departure from the guidelines." Sherburne County Social Services v. Riedle, 481 N.W.2d 111, 113 (Minn. App, 1992).

[4] Appellant claims the ALJ erred in not making findings relevant to each of the factors in Minn. Stat. 518.551, subd. 5(c) (1996). However, findings on those factors are mandated only when the court deviates from the guidelines. See Minn. Stat. 518.551, subd. 5(i) (1996).