may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1996)
STATE OF MINNESOTA
IN COURT OF APPEALS
Manuel M. Ambriz-Meza,
File No. F9215360
James L. Berg, 1059 Stoughton Avenue, Chaska, MN 55318 (for appellant)
Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Forsberg, Judge.*
In an appeal from a judgment modifying child support, Manuel Ambriz-Meza challenges the computation of net earnings on which the modification is based. The record supports the administrative law judge's finding of a change in circumstances warranting the designated increase in the support amount, and we affirm the modification.
Lenay Nelson and Manuel Ambriz-Meza are the parents of K.A.N., born April 1, 1991. Ambriz-Meza was adjudicated K.A.N.'s father in April 1993, and the court set his child support at $173.33 per month based on a net monthly income of $917.27. In its findings, the court noted the parties agreed to a downward deviation in the guidelines support amount due to Ambriz-Meza's financial situation. At the modification hearing, Nelson said she agreed to the deviation because Ambriza-Meza was required to pay an additional $10 per week toward arrears.
In June 1994, the parties stipulated that Ambriz-Meza, who had lost his job, would pay $91 in monthly support "for a period of no more than six months or until he obtains employment." Ambriz-Meza began a new job in August 1994, but did not resume the $177.33 monthly payment. A court-ordered cost-of-living adjustment in May 1996 increased the $91 payment to $96. Nelson moved to modify child support in November 1997, and the motion was heard before an administrative law judge (ALJ). Nelson computed Ambriz-Meza's gross income based on 40 hours of work per week and argued that his net monthly income of $1,314 was a statutorily presumptive change in circumstances because it was more than 20 percent higher than his 1993 net monthly income of $917.27.
Ambriz-Meza disputed that the increased earnings constituted a change in circumstances, arguing that the ALJ should base the award on a 36-hour work week and a net monthly income of $1,161. Ambriz-Meza's income evidence was confusing and contradictory. In his affidavit he claimed a net weekly income of $270 and a net monthly income of $1,161. At the hearing, Ambriz-Meza's attorney stated that the monthly income for purposes of child support, after subtracting insurance expenses, was $1,031. Because of the conflicting information presented by both parties, the ALJ said she would obtain wage information from records of the County Community Services and Initiatives Division unless Ambriz-Meza could convince her that his current income was significantly different from the recorded wage amounts. The wage information obtained from the County Community Services and Initiatives Division dated back to the second quarter of 1996. Ambriz-Meza did not dispute the accuracy of the wage information.
The ALJ ultimately increased Ambriz-Meza's monthly support obligation to $415 after finding that he earned gross monthly income of $2,548 and net monthly income of $1,659. The ALJ did not specifically state how it calculated these amounts, but the amounts correspond to the division's wage records. Ambriz-Meza appeals the increase in the child support amount, contending that his net earnings were improperly calculated.
Decisions on modification of child support are subject to an abuse of discretion standard. Hennessey v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974). Subject to limitations not operative in this proceeding, an administrative law judge 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(h) (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 Minnesota's administrative child support process unconstitutional "because it violates the separation of powers required by the Minnesota Constitution"), pet. for rev. filed (Minn. July 13, 1998).
When a motion for modification is based on a change in an obligor's income, the starting point is the obligor's current net income, and findings on net income will be affirmed if the findings have a reasonable basis in fact. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). A substantial change in circumstances is presumed and the current order is presumed to be unreasonable and unfair if application of the child support guidelines results in a support amount "that is at least 20% and at least $50 per month higher or lower than the current order." Minn. Stat. § 518.64, subd. 2 (b)(1) (Supp. 1997).
Ambriz-Meza contends on appeal that the ALJ abused the permissible range of discretion by relying on the wage information supplied to the County Community Services and Initiatives Division by Ambriz-Meza's employer rather than relying on Ambriz-Meza's estimates. Based on our review of the record as a whole, it appears the ALJ simply determined that the wage information provided by Ambriz-Meza's employer was the most credible information. See County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (reviewing court must defer to factfinder's assessment of credibility and weight). The ALJ gave both parties ample opportunity to submit relevant information, even going so far as to keep the record open after the hearing. Both parties submitted short letters to the ALJ. Nelson's letter discussed Ambriz-Meza's later-born child. Ambriz-Meza argued that support should stay at the 1993 level, but did not address the accuracy of the wage information or overtime.
Despite his failure to raise the overtime issue at the modification hearing, Ambriz-Meza now contends that the wage information reflects overtime that should be excluded from his compensation under Minn. Stat. § 518.64, subds. 2(c)(1) and (2). This statute provides that, in reviewing a motion to modify child support, the court, under certain conditions, cannot consider overtime. Minn. Stat. § 518.64, subd. 2(c)(2) (Supp. 1997). Ambriz-Meza's overtime satisfies the first condition for exclusion to the extent the overtime was started after the entry of the existing support order. Id. at subd. 2(c)(2)(i). But this condition is not the only one. For the court to exclude excess or overtime pay from net income, the party must demonstrate, and the court must find, the existence of all factors listed in subdivision 2(c)(2). Minn. Stat. § 518.64 subd. 2(c)(2) (i)-(vi) (enumerating six factors that must be satisfied to exclude overtime income). Ambriz-Meza did not provide evidence or argue to the ALJ that he satisfies the other factors listed in subdivision 5(b). Thus, the ALJ did not abuse her discretion by using the wage information from the County Community Services and Initiatives Division.
We also reject Ambriz-Meza's contention that the ALJ's failure to make specific findings on overtime invalidates the modification order. See Minn. Stat. § 518.64, subd. 2(c)(2). The ALJ is only required to provide findings on the factors set forth in Minn. Stat. § 518.64 when it excludes overtime. The ALJ's income computation included, not excluded, the overtime amounts.
Finally, we reject Ambriz-Meza's argument that the ALJ failed to consider his obligations to support his second child. See Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986) (court may consider obligor's current family obligations in determining his available resources but subsequent children are not to be factored into the child support guidelines). In Finding #3, the ALJ specifically discusses Ambriz-Meza's obligation to his second child. Ambriz-Meza's affidavit and the hearing transcript also contain numerous references to the issue. Because both Ambriz-Meza's temporary support order of $96 per month and his original 1993 support order of $173.33 per month were lower than Ambriz-Meza's obligation to his later-born child, the ALJ properly modified the support obligation for K.A.N. Hayes v. Hayes, 473 N.W.2d 364, 366 (Minn. App. 1991) (presumed benefit for subsequent child "should not exceed the per capita award under the prior obligation").
The ALJ did not abuse its discretion in using employer-generated wage information, which included overtime earnings, and it did not fail to consider Ambriz-Meza's obligation to support his second child.
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.