This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-606

In re the Marriage of:
Lynn Carol Rudisill, petitioner,
Respondent,

vs.

Murray Lee Rudisill,
Appellant.

Filed December 7, 1999
Affirmed
Peterson, Judge

Ramsey County District Court
File No. F3951787

Lynn Carol Rudisill, 7374 Park View Terrace, Moundsview, MN 55112 (pro se respondent)

Ronald B. Sieloff, Sieloff & Associates, P.A., Suite 938 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

On appeal from an order denying appellant-father Murray Rudisillís motion to modify child support and granting respondent-mother Lynn Rudisillís cross-motion to modify child support, father argues that the administrative law judge (ALJ) erred in imputing income to him. Father also challenges the award of attorney fees to mother. We affirm.

FACTS

The partiesí marriage was dissolved in 1996 by a stipulated judgment. At that time, father worked as an independent contractor selling homes for Kootenia Homes and was paid on a commission basis. The dissolution judgment stated that father was paid $2,500 per month as a draw against future commissions and that his net income from the base draw was $1,547 per month.

Mother has primary physical custody of the partiesí two minor children. The dissolution judgment required father to pay child support of $464 per month, based on his draw against commissions, plus 30% of any commissions or bonuses that exceeded the amount of draw.

In October 1997, Kootenia notified father that, effective April 1, 1998, he would no longer receive a monthly draw and paid him six months of advance draw in the total amount of $15,000. In January 1998, father resigned his position with Kootenia. Father testified that the main reason he resigned was because Kootenia was going to reassign him to Hudson, Wisconsin, where he would have had to work out of his car or a temporary trailer. Father claimed that it would be difficult to sell homes without a model to show potential customers and that Kootenia sold no homes in Hudson during 1998. Father testified that a second reason for his resignation was that he wanted to spend more time with his children.

In March 1998, father filed a motion to cease income withholding of the $464 for child support and requesting that he instead be required to pay as child support 30% of net commissions paid to him by Kootenia. Father also requested that, upon obtaining new employment, he be ordered to provide mother with documentation regarding the terms and conditions of the employment and to pay 30% of his net income from employment for child support, in addition to the 30% of net commissions. The administrative law judge (ALJ) found that the motion was, in effect, a motion to modify child support. The ALJ modified the automatic withholding for child support to 30% of all of fatherís net income and continued fatherís motion to permit mother to conduct discovery on the issues of fatherís resignation from employment and his efforts to find new employment. Mother then filed an amended cross-motion to modify child support by imputing income to father and setting child support accordingly.

In June 1998, father began working as an independent sales contractor for Spartan Promotional Group, Inc. Father has earned an average gross monthly income of $1,218.89 from Spartan. Father testified that Spartan told him that the average income for a full-time salesperson for Spartan was $40,000 and that the top salesperson earned more than $600,000 in 1997.

The ALJ found:

[Fatherís] claims that he voluntarily quit his previous position of employment since it made it difficult to spend quality time with his children, that home sales required numerous weekend and evening hours which was the time he should have been spending with his children and that he made a decision that his financial and family future would be better served by him finding new employment, are not credible. [Father] has not spent additional time with the partiesí children since he voluntarily quit his employment in January, 1998. In addition, [father] acknowledged in his Answers to Interrogatories dated April 22, 1998, that the hours he was required to spend in model homes for his former employer was approximately 26 hours per week.

The ALJ also found that fatherís change in employment did not represent a bona fide career change that outweighed the adverse effect of his diminished income on the children.

The ALJ found that in 1997, father earned a gross annual income of $65,590.72 from his employment with Kootenia Homes, $7,500 of which represented prepayment of three months of draw for 1998. The ALJ subtracted the prepayment and imputed income to father at the rate of $58,090.72, which equals $4,840.89 per month. In calculating fatherís net monthly income to be $2,934.03, the ALJ allowed the following deductions: $1,507.07 for federal and state income and self-employment taxes; $338.86 for a pension; and $60.93 for medical and dental insurance. Pursuant to the child support guidelines, the ALJ ordered Rudisill to pay 30% of his net income, $880.21, per month for child support.

D E C I S I O N

1. Imputed income

The district court has discretion to modify a child support order, and its decision will be upheld unless the court reached a "Ďclearly erroneous conclusion that is against logic and the facts on record.í" Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)). The same standard applies when this court reviews an ALJís order. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990); see also Minn. Stat. ß 518.5511, subd. 4(j) (1998) (ALJís decision is appealable to court of appeals in same manner as district courtís decision).

Minn. Stat. ß 518.551, subd. 5b(d) (1998), permits the court to calculate child support based on imputed income if the court finds that a parent is voluntarily underemployed. But a parent is not considered voluntarily underemployed upon a showing by the parent that the underemployment

(1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parentís diminished income on the child.

Id.

Father argues the ALJ did not find that father was voluntarily unemployed or underemployed. But the ALJ did find that father voluntarily resigned from his position with Kootenia and that the reasons father gave for his resignation were not credible. The ALJ also found that fatherís income had decreased while the number of hours he worked per week had increased. We construe these findings as a finding that father was voluntarily underemployed.

Father next argues that the ALJ erred in failing to address whether fatherís employment with Spartan would ultimately lead to an income increase. Under Minn. Stat. ß 518.551, subd. 5b(d), father had the burden of proving that his new job would ultimately lead to an income increase. Father failed to present evidence to support his assertion that his income with Kootenia would have decreased had he remained employed there. He presented no evidence substantiating his claim that Kootenia sold no homes in Hudson or indicating whether Kootenia did in fact attempt to sell homes in Hudson following his resignation. Father presented only hearsay evidence to support his assertions about the average and top earnings of Spartan salespersons. See Minn. R. Evid. 802 (stating, generally, hearsay evidence is not admissible). In light of fatherís failure to present admissible evidence supporting his assertions about his potential income, the ALJís finding that fatherís claim that he decided "that his financial and family future would be better served by him finding new employment" lacked credibility adequately addresses Minn. Stat. ß 518.551, subd. 5b(d)(1).

Father objects to the ALJís finding that father did not spend more time with the children since quitting his position with Kootenia. Father argues that visitation is irrelevant to child support. Father, however, testified that one of the main reasons he quit was because he was required to work weekend and evening hours regularly, making it difficult to spend time with the children. The fact that he did not spend additional time with the children after quitting undercuts the credibility of this claim and, thus, was relevant to determining the applicability of Minn. Stat. ß 518.551, subd. 5b(d)(2).

Father also contends that the ALJ erred in basing the amount of imputed income on fatherís 1997 earnings from Kootenia and failing to consider the other statutory factors. See Minn. Stat. ß 518.551, subd. 5b(d) ("Imputed income means the estimated earning ability of a parent based on the parentís prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parentís qualifications."). Because father could have remained employed with Kootenia and because he failed to present evidence to support his claim that his income would have decreased had he remained with Kootenia, the ALJ did not err in imputing income to father based solely on his 1997 earnings. See Franzen v. Borders, 521 N.W.2d 626 (Minn. App. 1994) (obligorís income decreased when he voluntarily transferred from Stillwater prison to Lino Lakes prison; district court did not err in imputing income to him at the rate he earned at Stillwater); compare Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn. App. 1996) (when obligor moved from Minnesota to Kentucky, district court erred in imputing income to obligor based on earnings history without considering availability of jobs in Kentucky).

2. Calculation of net income

In determining fatherís net income, the ALJ deducted $1,507.07, 31% of fatherís gross monthly income, for federal and state income and self-employment taxes. Father argues that he was entitled to deduct $1,665, based on state and federal tax withholding tables. Father does not cite to any evidence in the record to support this claim. Due to earnings from other sources, the amount of taxes on fatherís employment earnings is not apparent from the tax returns submitted by father. The ALJís allowance of a tax deduction of 31% of gross income was not an abuse of discretion. See Marx v. Marx, 409 N.W.2d 526, 529 (Minn. App. 1987) (allowance of 25% for taxes and other deductions proper when evidence presented by obligor did not reliably indicate his income); Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (obligor cannot complain when inadequate documentation leads in part to courtís refusal to modify child support order).

3. Modification of child support

Father argues that the May 22, 1998, order modified child support and, therefore, the ALJ erred in modifying child support without finding that a substantial change in circumstances had occurred since that order. Fatherís argument is based on the following provision in the May 22 order:

[Fatherís] motion to stay automatic withholding of the set amount of $464 per month plus 30 percent of net commissions is GRANTED, HOWEVER, automatic withholding shall remain in place and the County shall continue to automatically withhold 30 percent of all of the Obligorís net income. * * * This paragraph shall not be construed to reduce in any way the amount of child support payable by the Obligor.

Fatherís argument is without merit. First, the provision itself expressly provides that it shall not be construed as a reduction of child support. Because there was no evidence that fatherís income had increased, it cannot be construed as an increase in fatherís child support obligation. Second, in the May 22 order, the ALJ found that fatherís motion to cease automatic withholding was, in effect, a motion to modify child support and continued the matter to permit mother to obtain discovery on the issues of fatherís resignation from employment and his efforts to find new employment.

4. Attorney fees

The district court has discretion to award attorney fees "against a party who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. ß 518.14, subd. 1 (1998). The allowance of attorney fees in family law cases is almost entirely within the discretion of the district court, and this court rarely reverses that decision. Maeder v. Maeder, 480 N.W.2d 677, 680 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

The ALJ found that fatherís incredible claims regarding his voluntary termination from employment necessitated that mother incur attorney fees and, therefore, fatherís conduct unnecessarily contributed to the length and expense of the proceeding. The ALJ awarded mother $2,500 for attorney fees.

The record supports the finding that fatherís conduct unnecessarily contributed to the length and expense of the proceeding. Father argues that attorney fees relating to discovery were covered by the $500 attorney fee award in the May 22, 1998, order and that the issue of imputing income was not extensively addressed until after motherís attorney had withdrawn from representation. The affidavit of attorney fees submitted by motherís former attorney, however, supports the fee award. The ALJ did not abuse its discretion in awarding mother attorney fees.

Affirmed.