This opinion will be unpublished and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

C6-99-1313

 

In Re the Matter of:

Itasca County Health and Human Services,

petitioner,

Respondent,

 

Lori A. Brown,

petitioner,

Respondent,

 

Tamara Rosato,

petitioner,

Respondent,

 

vs.

 

Michael J. LaFrenierre,

Appellant.

 

Filed April 11, 2000

Affirmed in part, reversed in part, and remanded

Peterson, Judge

 

Itasca County District Court

File Nos. F2-89-1245, F3-94-50081

 

John J. Muhar, Itasca County Attorney, Heidi M. Chandler, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN  55744 (for respondent Itasca County Health and Human Services)

 

Lori A. Brown, P.O. Box 269, Bovey, MN  55709 (pro se respondent)

 

Tamara Rosato, P.O. Box 540, Bovey, MN  55709 (pro se respondent)

 

Ellen E. Tholen, 525 East Itasca Street, Suite 103, Grand Rapids, MN  55744 (for appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            On appeal from two orders increasing his child support obligations, appellant Michael J. LaFrenierre argues that the administrative law judge (ALJ) erred in finding that he was voluntarily underemployed and imputing income to him.  We affirm in part, reverse in part, and remand.

FACTS

            LaFrenierre is the father of two minor children, H.L. and R.R.  Respondent Lori Brown is the mother of H.L., and respondent Tamara Rosato is the mother of R.R.  In October 1996, LaFrenierre’s child support obligation for R.R. was modified to $140 per month.  His child support obligation for H.L. was established at $125 per month in May 1994, and a 1998 cost-of-living adjustment increased that obligation to $139 per month.

            In December 1998, Itasca County initiated the administrative procedure for reviewing LaFrenierre’s child support obligation for H.L., seeking to increase the obligation to $240 per month for child support, plus $50 per month for medical support.  LaFrenierre disagreed with the county’s proposed order and requested a hearing on the matter and also filed a motion to consolidate the files on his child support obligations for R.R. and H.L.  The ALJ declined to consolidate the two files but scheduled hearings on both child support obligations for the same day.

            Since about 1988, LaFrenierre has been employed by Built-Rite Trailers, a company owned by his father, as a laborer and a supervisor.  He testified that he is paid $250 per week regardless of the number of hours he works, although he generally works 40 hours per week, and that his net monthly income is $800.  He also owns a five-percent interest in the company.  Built-Rite provides LaFrenierre with a 1996 GMC extended cab pickup truck, which he uses for both business and personal use.  LaFrenierre has not received a raise since 1996.

            LaFrenierre claimed monthly expenses of $1,257.  He testified that he is unable to meet his monthly expenses and is behind on many of his payments.  LaFrenierre testified that he owns a 1995 snowmobile that he bought for about $5,000.  He testified that he took out a loan to buy the snowmobile, consolidated the snowmobile loan with other bills, and made monthly payments of $250 on the consolidated loan.  He finished paying off the loan in 1998.

            LaFrenierre earned a higher income in 1995, but his income decreased in 1996 due to a reduction in Built-Rite’s business.  The October 1996 order modifying LaFrenierre’s child support obligation for R.R. contains the following finding about the decrease in LaFrenierre’s income:

            [LaFrenierre] has had a decrease in income since December of 1995 due to a loss of hours available to work.  In April of 1996, [LaFrenierre’s] employer stopped paying bonuses to its employees due to a slow down in business.  Prior to the decrease in work, [LaFrenierre] had an average gross monthly income of $2,167.00.  [LaFrenierre] currently has a gross monthly income of $1,083.00 from employment and $18.00 from a 10% share in the company.

 

            In the orders currently on appeal, the ALJ found that LaFrenierre “is voluntarily underemployed and has the ability to work full time and earn at least $8.50 per hour based on employment history.”  The ALJ also assigned a value of $200 per month to LaFrenierre’s use of the company truck.^[1]

D E C I S I O N

            The district court has discretion to modify a child support order, and its decision will be upheld unless the court reached a “‘clearly erroneous conclusion that is against logic and the facts on record.’”  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 ALJ’s order.  Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn.  Oct. 18, 1990); see also Minn. Stat. § 518.5511, subd. 4(j) (1998) (ALJ’s decision is appealable to court of appeals in same manner as district court’s decision).

            Minn. Stat. § 518.551, subd. 5b (1998) provides:

            (d) 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:  (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 parent’s diminished income on the child.  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.

 

            (e) If there is insufficient information to determine actual income or to impute income pursuant to paragraph (d), the court may calculate support based on full-time employment of 40 hours per week at 150 percent of the federal minimum wage or the Minnesota minimum wage, whichever is higher.

 

            LaFrenierre argues that the ALJ erred in finding that he is voluntarily underemployed.  In finding that LaFrenierre is voluntarily underemployed, the ALJ cited the fact that LaFrenierre claimed total ignorance about Built-Rite’s financial status despite being a minor shareholder in the company and being employed in a supervisory position.  LaFrenierre testified that he supervises factory employees who build trailers and that the company’s financial dealings, including payroll, are entirely his father’s responsibility.  There was no evidence to the contrary, and there was no evidence that LaFrenierre failed to cooperate in providing any requested information.  The ALJ also cited the fact that LaFrenierre has not asked for or received a raise in more than four years.  The record, however, contains no evidence that Built-Rite will pay LaFrenierre more than his current wage or that other higher-paying jobs for which LaFrenierre is qualified are available in the Grand Rapids area.

            The county had the burden of proving that LaFrenierre is voluntarily underemployed and a basis for imputing income.  See Bruner v. Bruner, 429 N.W.2d 679, 683 (Minn. App. 988) (the party seeking a modification of child support has the burden of proving that a modification is warranted), review denied (Minn. Nov. 30, 1988).  Absent evidence of affirmative conduct by LaFrenierre indicating an effort to conceal information, a finding that LaFrenierre’s testimony lacked credibility is insufficient by itself to satisfy the county’s burden of proof.  The fact that LaFrenierre’s testimony about his earning ability was not credible does not prove that he could earn $8.50 per hour.

            The ALJ also cited LaFrenierre’s lifestyle, specifically, the fact that LaFrenierre paid off a 1995 snowmobile by making monthly payments of $250 as evidence that his income exceeds what he pays taxes on.  LaFrenierre, however, testified that the payments were on a consolidated loan that included debts for necessary items, such as medical expenses.  Also, LaFrenierre’s 1995 income was double his current income, and the record does not indicate the source of funds used to pay for the snowmobile.  Finally, although LaFrenierre’s claimed monthly expenses exceeded his reported income, LaFrenierre testified that he is unable to meet those expenses, and the record contains no evidence to the contrary.  The evidence about LaFrenierre’s lifestyle was insufficient to show that his actual income exceeds his reported income.

            The record also does not support the ALJ’s finding that LaFrenierre was capable of earning $8.50 per hour based on his employment history.  In 1995 and early 1996, LaFrenierre was earning $12.50 per hour.  Minn. Stat. § 518.551, subd. 5b(d), states that earning history is relevant to determining current earning ability.  But the October 1996 order modifying LaFrenierre’s child support obligation for R.R. contains a finding that, in 1996, LaFrenierre’s gross monthly income was reduced to its current level due to a slow-down in Built-Rite’s business.  That finding is accorded preclusive effect.  See Loo v. Loo, 520 N.W.2d 740, 743 (Minn. 1994) (decisions on issues litigated and determined in deciding a motion to modify child support should be given preclusive effect).  Therefore, absent evidence that Built-Rite’s business has increased or its financial situation improved since 1996, LaFrenierre’s previous higher earnings do not demonstrate that he is currently capable of earning $8.50 per hour.  The county conceded at oral argument that the record contains no evidence regarding the availability of jobs in the Grand Rapids area or any evidence other than LaFrenierre’s earning history to support the ALJ’s finding imputing income to LaFrenierre.

            We affirm the ALJ’s finding that assigned a value of $200 per month to LaFrenierre’s use of the company truck.  We reverse the findings that LaFrenierre is voluntarily underemployed and imputing income to him and remand those issues for reconsideration.  On remand, the ALJ has discretion to reopen the record for additional evidence.

            The conclusion section of LaFrenierre’s brief contains a request for attorney fees.  Minn. R. Civ. App. P. 139.06 requires that a party seeking attorney fees on appeal “submit such a request by motion under Rule 127.”  We, therefore, do not consider the request made in LaFrenierre’s brief.

            Affirmed in part, reversed in part, and remanded.