may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Josephine Odeh Araj, petitioner,
Salim Ahmed Agha,
Filed April 20, 1999
Olmsted County District Court
File No. F696833
Kevin A. Lund, Lund & Patterson, Ltd., Seven Fourth Street Southeast, Rochester, MN 55904 (for appellant Josephine Odeh Araj)
Suzanne M. Remington, Remington Law Office, 300 Third Avenue Southeast, Suite 302, Rochester, MN 55904 (for respondent Salim Ahmed Agha)
Considered and decided by Halbrooks, Presiding Judge, Davies, Judge, and Peterson, Judge.
In this appeal from an order setting child support, appellant argues that the district court erred in (1) determining that she was voluntarily unemployed and imputing income to her; and (2) attributing investment income to her. We affirm.
The August 26, 1996, judgment and decree dissolving the marriage of appellant- mother Josephine Odeh Araj and respondent-father Salim Ahmed Agha awarded physical custody of the parties' two oldest children to father and physical custody of their youngest child to mother. The parties stipulated that neither party would pay child support.
An October 23, 1997, order awarded temporary physical custody of the youngest child to father, and the child began living with father in December 1997. In September 1998, father filed a motion for an order requiring mother to pay child support, medical support, and daycare reimbursement.
Since August 1996, mother has been unemployed and living in Las Vegas, Nevada. During the last three to four years of the parties' marriage, mother worked as an interpreter for the Mayo Clinic earning about $10.00 per hour. At other times during the marriage, mother was a homemaker. She also worked for a short time at a department store earning minimum wage and for a short time as an accountant at the Federal Medical Center. Mother has a four-year accounting degree, but she stated in an affidavit that her lack of experience and a 70% hearing loss in both ears would make it difficult for her to find a job in that field. Father stated in an affidavit that mother had this hearing loss when she worked as an interpreter and that her job as an interpreter required her to listen to complicated medical terminology in English and translate what was said into Arabic.
Father also stated in an affidavit that the current starting wage for an interpreter at the Mayo Clinic is $11.50 per hour. Father submitted into evidence a listing that he obtained through the Department of Economic Security/Bureau of Labor Statistics, Carson County, Nevada, showing the following hourly pay rates for entry-level clerical positions in Las Vegas: billing clerk - $10.65; general office clerk - $9.43; clerk-typist - $10.10; entry-level clerk-typist - $8.85; accounting clerk - $10.08; payroll clerk - $11.27; personnel clerk - $10.76; production clerk - $12.05; and receptionist - $8.72. The average of all of the entry-level clerical pay rates is $10.21 per hour. Father submitted advertisements from October 1998 showing that clerical positions were available in Las Vegas.
Father also submitted a March 1998 bank statement showing that mother had an investment account containing $61,887.18. The statement showed that the account earned $757.69 in money market mutual funds dividends during the first quarter of 1998, which equals $252.56 per month.
Following a hearing, the district court issued an order imputing full-time income to mother at the rate of $10.21 per hour and finding her monthly investment income to be $252.56. Based on those figures, the district court calculated mother's gross and net monthly income and awarded child support pursuant to the guidelines. Based on the parties' respective incomes, the district court also ordered mother to pay 29% of father's cost for medical insurance for the children and 19% of father's daycare cost expenses for the youngest child.
The district court has broad discretion in determining a child support obligation, and this court will affirm its determination if it has "an acceptable and reasonable basis in fact." Bliss v. Bliss, 493 N.W.2d 583, 586 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).
If the court finds that a parent is voluntarily unemployed or underemployed or was voluntarily unemployed or underemployed during the period for which past support is being sought, support shall be calculated based on a determination of imputed income. * * * Imputed income means the estimated earning ability of a parent based on the parent's prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent's qualifications.
If a parent is physically incapacitated, it shall be presumed that the parent is not voluntarily unemployed or underemployed. Minn. Stat. § 518.551, subd. 5(b)(e) (1998).
Mother argues that, given the statutory presumption that a physically incapacitated parent is not voluntarily unemployed, Minn. Stat. § 518.551, subd. 5b(e), should be construed as requiring the trial court to make findings regarding the impact of a physical disability on a parent's earning capacity. But mother failed to present evidence showing what effect her hearing impairment has on her earning capacity. The only evidence that mother cites regarding the effect her hearing impairment has on her earning capacity is her statement that she believes lack of work experience in accounting and her hearing impairment would make it difficult for her to find a job in that field.
Mother's employment history indicates that she is capable of being employed in an entry-level clerical position. The record demonstrates that the average starting pay in Las Vegas for entry-level billing, payroll, personnel, and production clerk positions is $10.21. The advertisements submitted by father indicated that such positions were available in the Las Vegas area. This evidence is sufficient to support the district court's finding that mother is capable of earning $10.21 per hour. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).
A child support obligation is based on the obligor's current net income. Rouland v. Thorson, 542 N.W.2d 681, 685 (Minn. App. 1996). Thus, if the investment account were a retirement account or its status had changed, the district court should not have included the interest income in mother's income for purposes of child support. But, contrary to mother's argument, the district court should consider income derived from an asset received as part of the property settlement when determining the obligor's income for purposes of child support. Maxson v. Derence, 384 N.W.2d 583, 585 (Minn. App. 1986); Tell v. Tell, 383 N.W.2d 678, 686 (Minn. 1986).
The bank statement submitted by father indicates that the account is an investment account; it does not indicate that the account is a retirement account. The statement also indicates that the account earned $757.69 in taxable money market mutual funds dividends during the first quarter of 1998. This evidence is sufficient to support the district court's conclusion that mother's monthly income for child support calculations included $252.56 in investment income.