A05-1325

Kim R. Jones, f/k/a Kim R. Schneier,

n/k/a Kim R. Brown, petitioner,

Appellant,

vs.

Lon L. Simmons,

Respondent.

Filed May 16, 2006

Affirmed

Forsberg, Judge*

Nicollet County District Court

File No. F2-97-196

Philip J. Elbert, Skillings & Associates, 237 Belgrade Avenue, P.O. Box 2064, North Mankato, MN 56003 (for appellant)

Lon L. Simmons, 120 Maple Drive, P.O. Box 2184, Mankato, MN 56002 (pro se respondent)

Considered and decided by Toussaint, Chief Judge; Wright, Judge; and Forsberg, Judge.

U N P U B L I S H E D O P I N I O N

FORSBERG, Judge

Appellant challenges the district court’s denial of her motion for modification of child support upon review of the child support magistrate’s decision to increase respondent’s child-support obligation, arguing that the district court (1) lacked subject-matter jurisdiction because respondent’s motion for review was untimely; and (2) erred by denying her motion for modification and reversing the child support magistrate’s decision. We affirm.

FACTS

Appellant Kim Jones and respondent Lon Simmons are the parents of two minor children. In 1997, the district court granted custody of the children to appellant and ordered respondent to pay child support.

In January 2003, respondent’s child-support obligation was modified based on the termination of his employment and subsequent enrollment in technical college as part of a displaced-worker’s program. Respondent was unable to work full-time while attending college, and his child-support obligation was decreased to $169 per month.

Respondent graduated from college in the summer of 2004 and obtained employment in his field of study. In October 2004, appellant sought modification of child support. In November 2004, respondent’s employment ended.

At the modification hearing, respondent argued that he was terminated from his post-graduation employment. The child support magistrate (CSM) found that respondent voluntarily terminated his employment based on the child-support supervisor’s testimony that respondent’s former supervisor indicated that respondent had quit his job. The CSM granted appellant’s motion for modification of respondent’s child-support obligation, imputing income to respondent based on his voluntary unemployment and the CSM’s findings that respondent was capable of full-time work and had an earning capacity of at least $7.50 per hour. Based on this imputed income, the CSM ordered respondent to pay $304 per month in child support and $50 per month for reimbursement of medical assistance.

Respondent filed a motion for review of the CSM’s order with the district court. The district court granted the motion for review, but denied respondent’s request for a hearing. The parties did not provide transcripts to the district court. The district court reversed the CSM’s order modifying child support and reinstated the previous order setting child support at $169 per month based on its findings that the CSM did not make “particularized findings to show that [respondent] is able to obtain employment” and that the CSM’s conclusions of law were unwarranted. This appeal follows.

Respondent, pro se, moved to dismiss the appeal on the basis that the appeal was procedurally defective. This court denied the motion, concluding that the appeal was not defective and that this court had jurisdiction over the matter.

D E C I S I O N

Appellant first argues that the district court lacked subject-matter jurisdiction to rule on respondent’s motion for review because the motion was not served on appellant within the 20-day time limit. Because respondent did not file a brief, the matter is to be decided on the merits pursuant to Minn. R. Civ. App. P. 142.03.

Whether a district court has subject-matter jurisdiction is a question of law, which this court reviews de novo. In re Thulin, 660 N.W.2d 140, 143 (Minn. App. 2003). A party may raise the issue of subject-matter jurisdiction at any time, including for the first time on appeal. Cochrane v. Tudor Oaks Condo. Project, 529 N.W.2d 429, 432 (Minn. App. 1995), review denied (Minn. May 31, 1995).

Any party may bring a motion for review of the decision and order for judgment of a CSM. Minn. R. Gen. Pract. 376.01. Minn. R. Gen. Pract. 377.02 provides that the party shall file the motion for review and serve the motion on all other parties “within twenty (20) days of the date the court administrator served that party with the notice form as required by Rule 365.04.” When the notice form under rule 365.04 is served by mail, three days are added to the 20 days, for a total of 23 days within which to file and serve the motion for review. Minn. R. Gen. Pract. 377.05, subd. 2.

Here, the record indicates that the court administrator served the notice form by mail on April 11, 2005, giving respondent 23 days within which to serve his motion for review. Thus, the deadline expired on May 4, 2005. Because appellant concedes that she was served with respondent’s motion for review on May 3, 2005, respondent has not shown that the district court lacked subject-matter jurisdiction.

II.

Appellant next argues that the district court abused its discretion by denying her motion for modification. Specifically, appellant contends that the district court did not give proper deference to the CSM’s findings, and erroneously shifted the burden to appellant to prove that respondent was voluntarily unemployed.

Deference to the CSM

Appellant first contends that the district court did not give proper deference to the CSM’s finding of fact that respondent was voluntarily unemployed, arguing that the district court’s review was subject to a “clearly erroneous” standard.

Minn. R. Gen. P. 377.09, subd. 2, governs the district court’s review of a CSM’s order. The rule provides that the district court “shall make an independent review of any findings or other provisions of the underlying decision and order for which specific changes are requested in the motion. The [district court] shall affirm the order unless the court determines that the findings and order are not supported by the record or the decision is contrary to law.” Id., subd. 2(b). Although the language of the rule providing for “independent review” and then for deference to the findings and order creates a conflict on the nature of that review, case law has consistently stated that the CSM’s decision is subject to de novo review by the district court. Kilpatrick v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn. App. 2004); Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001); Blonigen v. Blonigen, 621 N.W.2d 276, 280 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001). Thus, the district court is not required to give deference to the CSM’s factual findings.

Burden of Proof

Appellant next contends that the district court improperly shifted the burden of proof from respondent to appellant by requiring her to prove that other employment was available to respondent in order for modification to be granted.

Generally, we review the district court’s decision regarding child-support modification for an abuse of discretion and will reverse the district court’s decision only when the district court’s resolution of the issue is against logic and facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); Davis, 631 N.W.2d at 826. But neither appellant nor respondent provided transcripts of the CSM hearing to the district court for its review of the decision. “Failure to submit a transcript to the district court for review of the CSM’s decision precludes consideration of the transcript on appeal because the transcript is not part of the record on appeal.” Davis, 631 N.W.2d at 826. And without a transcript, appellate review is limited to whether a district court’s conclusions of law are supported by the findings of fact. In re Bender, 671 N.W.2d 602, 605 (Minn. App. 2003).

Here, the district court reversed the CSM’s order not because appellant failed to produce sufficient evidence of the voluntariness of respondent’s unemployment, but rather because the CSM did not make the necessary findings to support the determination that respondent was voluntarily unemployed. The district court stated:

[Respondent] is unemployed. The only evidence furnished to this Court, which apparently was the only evidence presented to the CSM, was two letters from prospective employers in which [respondent] was denied employment. The law is clear that the CSM must make particularized findings to show that [respondent] is able to obtain employment. Because the CSM did not make such [f]indings, and because the CSM only drew unwarranted [c]onclusions of [l]aw, the decision of the CSM as to modification, including the amount of modification, must be reversed.

For this reason, appellant’s allegation that the district court reversed the CSM’s determination based on an erroneous placement of the burden of proof is without merit.

A parent’s responsibility for child support is generally based on net income and ability to pay. Minn. Stat. § 518.551, subd. 5 (2004); Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991). Under current law:

If the court finds that a parent is voluntarily unemployed or underemployed . . . [child] 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 increased in income; or (2) 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) (2004). The statute does not define “voluntarily unemployed or underemployed,” but this court has determined that “voluntarily unemployed or underemployed” requires “an examination of whether the obligor chose to be unemployed or underemployed.” Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994) (citations omitted). Without such an examination, Minn. Stat. § 518.551, subd. 5b(d), would create the absurd result of classifying all obligors who do not fit either of the two statutory exceptions as voluntarily unemployed or underemployed without reference to whether their unemployment or underemployment was actually voluntary. Id.

Here, the district court did not alter the CSM’s findings and thus adopted them. Cf. Blonigen, 621 N.W.2d at 280 (in performing independent review of CSM’s ruling, findings of the CSM that are not approved or modified by the district court do not become part of the district court’s decision). But the district court determined that these findings did not support the CSM’s conclusion that respondent was voluntarily unemployed because there was no finding that respondent was able to obtain other employment. Implicit in the district court’s determination is that the CSM failed to make the necessary finding under Minnesota law that respondent “chose” to be unemployed. See Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998) (holding that there must be evidence of choice in the matter of underemployment before income can be imputed under Minn. Stat. § 518.551). Thus, the district court’s findings of fact support its conclusions of law, and, given our limited review of the district court order due to the lack of a transcript, we affirm the district court’s denial of appellant’s motion for modification of child support.

Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.