may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Kimberly Ann DeChene, n/k/a
Kimberly Ann Bowers,
County of Anoka,
Patrick Michael Vizenor,
Filed October 6, 1998
Anoka County District Court
File No. FX-98-50038
Steven A. Peterson, 2372 Leible Street, White Bear Lake, MN 55110 (for appellant)
Robert M. Johnson, Anoka County Attorney, Dorrie Brown Estebo, Assistant County Attorney, Anoka County Government Center, 2100 Third Avenue, Seventh Floor, Anoka, MN 55303-2265 (for respondent Anoka County)
Kimberly Ann Bowers, 416 117th Avenue Northwest, Coon Rapids, MN 55448 (respondent pro se)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Thoreen, Judge.[*]
On appeal from an order modifying his child support obligation, Patrick Vizenor argues that the evidence fails to support an administrative law judge's (ALJ) finding that he is voluntarily underemployed and that the ALJ erred by imputing income and by sequestering future proceeds from a personal injury action. The evidence supports the ALJ's imputation of income, and we find no error in the sequestration of future proceeds from litigation. We affirm.
At the December review hearing, Vizenor produced only partial financial information and no medical evidence. He reported that he had seen a doctor the previous week and requested permission to submit medical information after the hearing. The ALJ denied the request.
The ALJ found that Vizenor had voluntarily left his full-time employment paying $16.23 per hour. The ALJ further found that the financial information on his current self-employment in a family-owned fiberoptic business was incomplete and inconsistent. In light of the available evidence, the district court imputed income based on Vizenor's previous employment and set child support at the guidelines level of $502.25. The ALJ also ordered that any future proceeds of Vizenor's pending personal injury litigation be sequestered for unpaid child support. Vizenor maintains in this appeal that it was an abuse of discretion for the ALJ: (1) to impute income, and (2) to order sequestration of possible proceeds from litigation.
We apply an abuse of discretion standard to decisions on modification of child support. Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974). An ALJ deciding child support issues has broad discretion to determine whether there has been a substantial change in circumstances that makes a current obligation unreasonable and unfair. See Minn. Stat. §§ 518.64, subd. 2(a) (Supp. 1997) (listing events that constitute a change in circumstances), 518.5511, subd. 4(j) (Supp. 1997) (providing decisions of ALJ are appealable in same manner as decisions of trial court); Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990) (concluding district court standards of review apply to review of ALJ orders), review denied (Minn. Oct. 18, 1990). But see Holmberg v. Holmberg, 578 N.W.2d 817, 824 (Minn. App. 1998) (holding 1996 version of administrative child support process unconstitutional as applied to prospective cases), review granted (Minn. Aug. 18, 1998).
If a district court finds that a support obligor is "voluntarily unemployed or underemployed" it "shall" set support "based on a determination of imputed income." Minn. Stat. § 518.551, subd 5b(d) (Supp. 1997); see Minn. Stat. § 645.44, subd. 16 (1996) ("`[s]hall' is mandatory"). The ALJ found Vizenor had voluntarily terminated his former position, could work full-time, and was voluntarily underemployed. Vizenor does not dispute that he voluntarily terminated his previous job. But he argues, first, that income was improperly imputed without a showing of bad faith and, second, that his employment status is a result of his medical condition.
We reject Vizenor's argument that a finding of bad faith is a predicate requirement to imputing income based on underemployment. The 1991 amendments to Minn. Stat. § 518.551, subd. 5b(d), eliminated any bad faith requirement as a necessary element of underemployment. Walker v. Walker, 553 N.W.2d 90, 95 n.1 (Minn. App. 1996) ("when setting child support, courts are no longer required to find bad faith before considering an obligor's earning capacity"); Franzen v. Borders, 521 N.W.2d 626, 628-29 (Minn. App. 1994) (noting that "[b]efore 1991" bad faith was required to impute income to support obligor but not requiring bad faith under Minn. Stat. § 518.551, subd. 5b(d)).
We also reject Vizenor's argument that the ALJ disregarded evidence of medical incapacity in determining that he was underemployed. The record supports the ALJ's finding that no medical evidence was produced to substantiate Vizenor's claim that he was unable to work full-time because of his physical condition. Vizenor was specifically instructed in the August order to bring relevant medical information to the December review hearing. If a party fails to produce documents necessary to respond to a motion, a court may deem the motion "unopposed" or "take other appropriate action." Minn. R. Gen. Pract. 303.03(b); cf. Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. 1985) (pointing out that party cannot complain when his failure to produce documentation leads, at least in part, to denial of his claim for modification of support).
One of the purposes for the five-month interval between the July and December hearings was to allow Vizenor to obtain financial and medical evidence to support his claims and to allow appropriate cross-examination on that evidence. Vizenor failed to provide the necessary evidence. Vizenor's own testimony that he could not physically perform full-time work was conflicting and apparently rejected on a credibility determination. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate court must defer to trial court credibility rulings). In light of the absence of other evidence on his medical condition or any necessary work restriction, Vizenor is not entitled to a presumption that he is involuntarily underemployed. See Minn. Stat. § 518.551, subd. 5b(d) (applying presumption against underemployment when incapacitated).
An obligor's personal property, including lawsuit proceeds, may be sequestered to secure payment of support or maintenance. See Minn. Stat. §§ 518.57, subd. 1 (1996) (stating support obligation may be a lien on obligor's property); 518.24 (1996) (allowing sequestration of personal property to secure payment of support or maintenance); Peterson v. Peterson, 304 Minn. 578, 580-81, 231 N.W.2d 85, 87 (1975) (affirming sequestration of proceeds of a personal injury settlement to secure obligor's maintenance obligation as within district court's discretion). The ALJ's sequestration of Vizenor's litigation proceeds is specifically allowed by statute, and the specified conditions are consistent with applicable case law.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.