This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1998)

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-98-2340

In Re the Marriage of:

Steven Leslie Murphy, petitioner,

Respondent,

vs.

Robin Estelle Murphy,

Appellant.

Filed July 27, 1999

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Goodhue County District Court

File No. F5971143

Thomas E. Gorman, Christopher R. Arndt, Sarah Matter Arndt, Gorman & Gorman, Ltd., 1626 Old West Third Street, Red Wing, MN 55066 (for respondent)

Kristine L. Dicke, Ryan & Grinde, Ltd., 407 14th Street Northwest, Rochester, MN 55903-6667 (for appellant)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In an appeal from judgment in a marital dissolution, Robin Murphy contends the district court erred in (1) failing to impute income and consider overtime income when it calculated Steven Murphy's income for the purpose of determining child support; (2) awarding temporary, rather than permanent, spousal maintenance; and (3) denying her attorneys' fees. The district court failed to adequately consider the statutes governing overtime income and spousal maintenance, but did not abuse its discretion in refusing to award Robin Murphy attorneys' fees. We affirm in part, reverse in part, and remand.

FACTS

Robin Murphy and Steven Murphy were married in 1979. They have two children who are 17 and 15 years old. The parties' marriage was dissolved on October 5, 1998. The district court ordered joint legal custody and placed sole physical custody of the two minor children with Robin Murphy.

Steven Murphy is employed as a fuel technician at Northern States Power [N.S.P.] and as a Minnesota State Senator. At N.S.P., he earns a gross hourly wage of $20.43. Before December 1997, he held a different position with N.S.P., for which he received a gross hourly wage of approximately $25.60 per hour. That position required him to work a rotating shift with substantial overtime hours. Steven Murphy became tired of shift work and, when a day-shift position became available, he accepted it.

Robin Murphy is employed as a clerk/typist by the State of Minnesota Department of Rehabilitation Services. She earns a gross hourly wage of $12.47. Her previous work experience is primarily as a semi-skilled clerical support person. A vocational rehabilitation specialist determined that she would be unable to increase her level of employment without additional training. The specialist believed that her current employment and the necessity that she spend her non-work hours with her children indicate retraining is not a viable option at this time.

The district court ordered Steven Murphy to pay $964 a month in child support and $550 a month in spousal maintenance. The court considered the ages of the children and Robin Murphy's ability to earn income and found that spousal maintenance should be limited to a five-year period. Robin Murphy moved to amend the court's findings of fact and order or, alternatively, for a new trial. The district court denied the motions, and Robin Murphy appeals.

D E C I S I O N

I

A parent cannot decrease the amount of his or her child support obligation by voluntarily becoming unemployed or underemployed:

If the court finds that a parent is voluntarily unemployed or underemployed * * * support shall be calculated based on a determination of imputed income. A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment * * * represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.

Minn. Stat. § 518.551, subd. 5b(d) (1998). Steven Murphy does not dispute that, in December 1997, he voluntarily accepted a position at N.S.P. that pays approximately $5 per hour less than the position he previously held. See Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998) (requiring evidence of choice in underemployment before income can be imputed to parent). The district court found that the shift rotation in Stephen Murphy's prior job often conflicted with his Senate duties and that he had become tired of juggling his schedule.

Steven Murphy testified that his decision to change jobs was also motivated by a desire to spend more time with the children. The children's counselor suggested that spending more time with the boys would be advantageous to their development.

The record supports the court's determination that Steven Murphy's decision to change jobs was a bona fide career decision, not an attempt to avoid or reduce child support or spousal maintenance obligations. In addition, the change provides an opportunity for a positive effect on his relationship with his children.

The net income used to calculate a partys support payments generally does not include compensation received by a party for employment in excess of a 40-hour work week, unless

the party demonstrates, and the court finds, that:

(A) the excess employment began after the filing of the petition for dissolution;

(B)the excess employment reflects an increase in the work schedule or hours worked over that of the two years immediately preceding the filing of the petition;

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

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

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

Minn. Stat. § 518.551, subd. 5(b)(2)(ii) (1998). The parties agree that Steven Murphy regularly worked significant overtime hours in the two years preceding the petition for dissolution and that these hours did not increase after the filing of the petition. The plain language of the statute therefore indicates that the district court should have considered Steven Murphy's overtime earnings when it calculated his net income for the purpose of determining his child support obligations. Accord Johnson v. Johnson, 533 N.W.2d 859, 863 (Minn. App. 1995) (approving consideration of overtime income in modification context based on similar statutory factors); Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (affirming inclusion of overtime income in child support calculation, despite possibility that the opportunity to work overtime might decrease). We therefore reverse the district court's decision not to include overtime income in its calculation of Steven Murphy's annual income, upon which child support is to be based, and remand the issue to the district court for recalculation.

Findings of fact will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01. Thus, an appellate court will not reverse a district court's determination of net income if the determination "has a reasonable and acceptable basis in fact." Strauch, 401 N.W.2d at 448. The district court found that Steven Murphy has an annual net income of $38,559. As a starting point, this figure has a reasonable basis in fact and therefore may be used by the district court as a base figure to which Steven Murphy's overtime income amounts will be added.

II

A court may grant maintenance if it finds that the spouse seeking maintenance is unable to provide adequate self-support through appropriate employment or from property. Minn. Stat. § 518.552, subd. 1 (1998). The district court has broad discretion in deciding whether to award maintenance and in determining its duration and amount. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

The district court found that Robin Murphy is unable to provide for her own needs. It found that the expenses of Robin Murphy and the two minor children amount to $3,300 per month. The court made no finding, however, on Robin Murphy's expenses exclusive of those of her children. The failure to make such findings precludes a reasoned decision on the duration of maintenance. See Minn. Stat. § 518.552, subd. 2(a)-(f) (1998) (listing relevant factors). But "[w]here there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification." Minn. Stat. § 518.552, subd. 3 (1998); see also Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997). The district court found that Robin Murphy is and will be unable to support herself without further training, which she is presently unable to acquire. See Minn. Stat. § 518.552, subd. 2(b). Consequently, there is no basis in the record for limiting maintenance to a "rehabilitative" five-year period. The statutory presumption for permanent maintenance applies particularly to "traditional" marriages of long duration when the dependent spouse acted as the primary homemaker and caregiver for the children and earns significantly less than the other spouse. See, e.g., Nardini v. Nardini, 414 N.W.2d 184, 198-99 (Minn. 1987) (when prospects of spouse seeking support to become self-sufficient are speculative, maintenance must be permanent, subject to subsequent modification); see also Minn. Stat. § 518.552, subd. 2(a)-(f) (enumerating factors to consider in determining duration of maintenance award). The Murphys were married for nearly 20 years, during which time Robin Murphy was the primary homemaker and caregiver. When the evidence does not support limited-duration maintenance, the district court must apply the statutory presumption of permanent maintenance.

III

The decision to award attorneys' fees rests within the discretion of the district court. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977); Burns v. Burns, 466 N.W.2d 421, 424 (Minn. App. 1991) ("only rarely will a trial court's decision regarding attorney fees be overturned on appeal"). An award of fees requires the district court to find that the party from whom the fees are sought has the means to pay them and the party seeking the fees does not. Minn. Stat. § 518.14, subd. 1 (1998). Although Robin Murphy may not have the means to pay her attorneys' fees, the district court found that Steven Murphy also does not have the means to pay them. The court noted that "he has no money. He is substantially in debt and will continue to be so unless he finds a `golden egg.' Further, he has done nothing to protract or complicate this proceeding." The denial of attorneys' fees was not an abuse of discretion.

Affirmed in part, reversed in part, and remanded.