This opinion will be unpublished and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
C4-98-523

In Re the Marriage of:
Allan Tikkanen, petitioner,
Appellant,

vs.

Janet Tikkanen,
Respondent.

Filed October 6, 1998
Affirmed
Thoreen, Judge*

Otter Tail County District Court
File No. F391438

Bruce G. Gerhardson, Dennis W. Hagstrom, Svingen, Athens, Russell & Hagstrom, P.L.L.P., 125 South Mill Street, P.O. Box 697, Fergus Falls, MN 56538-0697 (for appellant)

Janet Tikkanen, P.O. Box 4343, Whitefish, MT 59937 (pro se respondent)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Thoreen, Judge.

U N P U B L I S H E D   O P I N I O N

THOREEN, Judge

Appellant Allan Tikkanen contests the denial of two motions for downward modification in spousal maintenance and child support obligations. The district court found no substantial reduction in income justifying a modification. The record supports the finding and we affirm.

FACTS

Appellant Allan Tikkanen and respondent Janet Tikkanen dissolved their marriage in March 1993. Appellant's dissolution petition described him as "self-employed" with variable monthly and yearly income arising from golf course construction contracts. Shortly before dissolution, appellant accepted a contract in Thailand for $7,000 a month. On dissolution, respondent received physical custody of the couple's three children. Based on appellant's $7,000 monthly gross income projection, the district court awarded Janet Tikkanen $1,500 per month in child support and $2,000 per month in spousal maintenance for five years, decreasing to $1,000 per month for two more years. Payments began in March 1993.

Appellant twice moved for modification, seeking downward modification of spousal maintenance to $0 beginning November 1996 and downward modification of child support to $1,000 retroactive to March 1993. After filing his second motion, appellant submitted a supporting affidavit and documentation indicating that, as of November 1997, he had a one-year contract in China paying $8,000 a month and providing housing, transportation, and all business expenses. Finding no substantial decrease in appellant's income, the district court denied appellant's motions for modification. Appellant challenges the January 30, 1997, and January 21, 1998, orders denying modification.

D E C I S I O N

Modification of support obligations is within the district court's discretion and, absent an abuse of that discretion, this court will not reverse a refusal to modify child support or maintenance obligations. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). A reviewing court will find an abuse of discretion only when the district court reaches "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

The terms of an order respecting maintenance or support may be modified upon a showing of * * * substantially increased or decreased earnings of a party * * * which makes the terms unreasonable and unfair.

Minn. Stat. 518.64, subd. 2(a) (Supp. 1997). The party requesting modification has the burden of proving that a substantial change in circumstances has occurred. Meier v. Connelly, 378 N.W.2d 812, 818 (Minn. App. 1985).

The district court found that appellant did not meet his burden of proving substantially decreased earnings, particularly since Allan had not changed his lifestyle. See Fuller v. Glover, 414 N.W.2d 222, 224-25 (Minn. App. 1987) (refusing to modify support obligations despite loss of employment because no demonstrated change in obligor's lifestyle). The district court also found no substantial decrease in earning capacity. The record supports the district court's conclusions. The affidavit supporting appellant's first motion establishes that appellant was temporarily receiving $4,000 a month on retainer, but would have a monthly income of $7,000 once the contract project began. Between the filing of his second motion and the district court's decision, appellant's monthly income increased to $8,000, $1,000 more than his projected income in the original dissolution decree. Accordingly, we conclude the district court did not abuse its discretion in determining that appellant's earnings had not substantially decreased.

Appellant contends the trial court abused its discretion by (1) examining his earning capacity, instead of actual income, in its January 30, 1997, order and (2) treating the decrease in his income as a "fluctuation" for which he could plan. We disagree. Contrary to appellant's contentions, the district court only referred to appellant's earning capacity after finding that his income was "impracticable to determine." See Beede v. Law, 400 N.W.2d 831, 835 (Minn. App. 1987) (earning capacity is an appropriate measure of income when it is impracticable to determine an obligor's actual income). In addition, use of earning capacity findings normally involve obligors who are self-employed. Id. Appellant has consistently described himself as "self-employed" or an "independent contractor."

Appellant maintains that the district court could have easily determined his actual income from the evidence presented. But the only evidence appellant provided was his own affidavits detailing his fluctuating income from independent contract work and documentation from his employers showing his monthly income as either $7,000 or $8,000 once the contract work began. Given appellant's variable income, we conclude the district court did not abuse its discretion by finding that appellant's earning capacity has not diminished and directing appellant to plan for periods of lower income rather than seeking modification after completion of each contract.

Appellant's reliance on Gorz v. Gorz, 552 N.W.2d 566 (Minn. App. 1996), is misplaced. Gorz did not involve an obligor with long-term variable income. 552 N.W.2d at 566, 569 (finding substantial change in circumstances when obligor underwent single transition from self-employed business owner to employee). Moreover, this court has approved the application of Minn. Stat. 518.57 (pertaining to "seasonal income") to obligors with "fluctuating income." See Beede, 400 N.W.2d at 836. Hence, we find the district court did not abuse its discretion in analogizing appellant's income fluctuations to "seasonal income" rather than treating them as "transition periods" requiring modification.

Affirmed.

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