This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-30   

 

In re the Marriage of:

Leslie L. Kozel, n/k/a Leslie Kurzontkowski, petitioner,

Appellant,

 

vs.

 

Kevin P. Kozel,

Respondent.

Filed October 10, 2006

Affirmed

Randall, Judge

 

Steele County District Court

File No. F8-95-1009

 

 

Maury Beaulier, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 500, Eden Prairie, MN 55344 (for appellant)

 

Paula Smoot Ogg, 2915 Wayzata Boulevard, Minneapolis, MN 55405 (for respondent).

 

            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Peterson, Judge.

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

RANDALL, Judge

On appeal to this court following remand and the district court’s subsequent affirmation of its previous order imputing income for the purpose of determining appellant-mother’s child support obligation, appellant argues:  (1) the district court did not properly execute this court’s remand order to impute income based on the factors enumerated in Minn. Stat. § 518.551, subd. 5b(d) (2002); (2) the district court improperly declined to reopen the record on remand to receive new evidence regarding appellant’s earning capacity, and as a result, overstated her earning capacity; (3) the district court abused its discretion in denying appellant’s motion to modify her existing support obligation.  We affirm on all issues.

F A C T S

             Appellant Leslie Kozel (Leslie Kurzontkowski) and respondent Kevin Kozel were divorced approximately ten years ago.  Two minor children were born of the union.  Respondent has physical custody of the children; appellant pays child support.  Her support obligation is $1,211.00 per month, which was originally based on appellant’s annual salary of $71,999.72 with her former employer, Cybex International. (“Cybex”).

Appellant was terminated from her position as Cybex’s Director of Legal Affairs in April 2003 and given a 19-week severance package.  Appellant’s job at Cybex was filled by an attorney.  Appellant does not have a law degree.  Although she earned a paralegal certificate from the American Institute for Paralegals, she has not taken a certified paralegal exam.

Appellant testified that she searched for comparable employment by asking attorneys with whom she had contact to keep her in mind if they became aware of available jobs similar to her position with Cybex in the southern Minnesota area.  Appellant also talked with area acquaintances in the corporate field as a part of her job search, but she received no offers.  She was interested in “corporate related position,” and did not apply to law firms during the course of her job search.  

When appellant’s severance package expired, she decided to change careers and enrolled in a graduate degree program in special education.  Appellant currently works full-time as a special education teacher’s assistant.  Her monthly salary is $654.

In October 2003, appellant filed a motion with the Child Support Magistrate (“CSM”) assigned to the case seeking to decrease her support obligation based on a “substantial change in circumstances.”  See Minn. Stat. § 518.64 (2002).  Appellant’s motion to modify her child support obligation was denied.  The CSM characterized appellant’s job search as “token,” consisting of “limited inquiries looking for other employment in her field.”  The CSM concluded that appellant’s goal was “graduate school, not a new job.” 

The district court reviewed the CSM’s findings and denied motions for modification and/or further review.  The district court did not hold a separate hearing in its consideration of the matter.[1]  In affirming the CSM’s order, the district court concluded that the record supported the CSM’s findings that appellant failed to demonstrate her inability to find suitable employment as a paralegal.  The district court construed the CSM’s report to indicate that appellant acted in bad faith by not seeking positions with an income commensurate with what she was earning at Cybex.  The court concluded that the CSM “did not abuse her discretion” when she imputed income and maintained the existing support obligation.  The district court further noted that appellant failed to supplement the record when the CSM gave her an additional week to do so.

Appellant appealed the district court’s initial decision.  This court held that the district court did not err in finding that appellant is voluntarily underemployed, reasoning that appellant failed to meet her burden of proving otherwise.  Kozel v. Kozel, No. A04-1714, 2005 WL 1217339, at *5 (Minn. App. May 24, 2005).  This court also concluded that the district court abused its discretion by imputing income without addressing appellant’s present estimated earning ability, and remanded the case for the purpose of reassessing appellant’s imputed income pursuant to the factors enumerated in Minn. Stat. § 518.551, subd. 5b(d) (2002).  Id. at *5-6.

On remand the district court again affirmed the CSM’s order in all respects.  The district court did not accept additional evidence but analyzed appellant’s ability, qualifications, past job performance, education, experience, and opportunities for comparable employment in addition to appellant’s past earnings.  The district court found that appellant’s income had been properly imputed.  This appeal followed. 

D E C I S I O N

The determination of a support obligor’s income for child support purposes is generally a finding of fact that is not set aside unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  Whether to impute income to a support obligor is discretionary with the district court.  Murphy v. Murphy, 574 N.W.2d 77, 82-83 (Minn. App. 1998).  Modification of child support is discretionary with the district court, and an appellate court may alter a district court’s discretionary decision if the district court resolved the matter in a manner that is against logic and the facts on the record. Putz v. Putz, 645 N.W.2d. 343, 347 (Minn. 2002); Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).

I.

Appellant argues that the district court made insufficient findings on the factors enumerated in Minn. Stat. § 518.551, subd. 5b(d), to support the income imputed to appellant.  The district court must make particularized findings to demonstrate that relevant statutory factors have been considered.  See Kroening v. Kroening, 390 N.W.2d 851, 854 (Minn. App. 1986).  In Erickson v. Erickson, the Supreme Court of Minnesota emphasized, “[W]e cannot stress enough the importance of having findings of fact that demonstrate the trial court actually did take all relevant factors into consideration.”  385 N.W.2d 301, 303 (Minn. 1986).  Failure to consider relevant factors constitutes an abuse of discretion.  See Id.  If the district court’s findings are insufficient to reveal that it addressed the factors expressly enumerated by the legislature, remand is appropriate.  Moylan, 384 N.W.2d at 865. 

If the district court’s findings indicate that the court has addressed the relevant statutory factors, remand is not appropriate.  Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).  The district court is not required to make specific findings relating to each factor, but rather the findings as a whole must show that the court considered the relevant factors.  Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn. App. 1987), review denied (Minn. Oct. 28, 1987).

Minn. Stat. § 518.551, subd. 5 (2002), articulates the factors relevant to the decision to modify a support order.  Putz, 645 N.W.2d at 348.  When imputing income, the court must estimate earning capacity based on the party’s prior earnings history, education, job skills, and availability of jobs within the community for an individual of the party’s qualifications. Minn. Stat. § 518.551 subd. 5b(d) (2002); Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn. App. 1996).  This court’s previous order (hereafter Kozel I) remanded the current case for the imputation of appellant’s income pursuant to Minn. Stat. § 518.551 subd. 5b(d).  Kozel, 2005 WL 1217339, at *6.

The district court’s order following remand addressed appellant’s prior earnings history and education.  The district court considered appellant’s reported income between 1998 and 2002.  This analysis of her salary constitutes adequate consideration of appellant’s relevant prior earnings history.  The district court also addressed appellant’s education, noting in its supplemental findings of fact that “[appellant] has a technical degree as a medical secretary, a Bachelor of Arts Degree in Organizational Management and Communication, and a post-bachelor paralegal certificate.” 

The district court considered appellant’s job skills as well as the availability of jobs within the community for an individual of her qualifications.  In its analysis of appellant’s job skills, the district court considered her “extensive paralegal and business management experience” and her many skills including: litigation administration, company policy and law review, regulatory reporting, and business risk management.  The court further reasoned that appellant’s “income levels were achieved as reflections of her ability, qualifications, and job performance.”  As for the job availability, the court expressly found “there are numerous opportunities for employment within the relevant community for an individual with [appellant’s] qualifications that pay at the level equal to, or greater than, her salary at Cybex.”  The district court noted that appellant applied to only a “limited number” of jobs in her field before opting to change careers.

These four statutory factors represent the breadth of the considerations enumerated in Minn. Stat. § 518.551, subd. 5b(d).  By considering these four factors, we conclude that the district court complied with this court’s remand order.  There is evidence in the record that reasonably supports the district court’s findings regarding these factors.  Since appellant’s prior earning history, education, job skills, and availability of jobs in the relevant community are questions of fact, appellant faces a high hurdle in this appeal.  See Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (stating that it is not the province of the appellate courts to reconcile conflicting evidence if there is reasonable evidence to support the trial court’s findings of fact, an appellate court will not disturb those findings).  The district court’s findings of fact regarding appellant’s earning capacity was not clearly erroneous. 

Imputing income based solely on appellant’s previous earnings would constitute an abuse of discretion.  That was the crux of this court’s holding in Kozel I. Kozel,  2005 WL 1217339, at *6.  The district court analyzed the four factors enumerated in Minn. Stat. § 518.551, subd. 5b(d).  By addressing all four statutory factors, the district court complied with the directive of this court.   

II.

            Appellant also argues that the district court abused its discretion by declining to reopen the record to hear new evidence on remand.  The decision to receive new evidence is generally within the discretion of the district court.  J.W. ex rel. D.W. v. C.M., 627 N.W.2d 687, 697 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001).  On remand, the district court is charged with the duty of faithfully executing the order of the appellate court.  Halverson v. Vill. Of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982).  When the appellate court does not specifically direct the district court as to how it should proceed in executing the remanding court’s order, the district court has discretion to proceed in any manner it sees fit, provided that does not violate the appellate court’s remand mandate.  John Write & Assoc., Inc. v. City of Red Wing, 256 Minn. 101, 102, 97 N.W.2d 432, 434 (1956). 

When a case is remanded on an issue without specific direction regarding how to proceed in deciding that issue, this court affords district courts broad discretion.  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988).  This court initially remanded Duffey to the district court for further findings of fact (“Duffey I”).  Duffey v. Duffey, 416 N.W.2d 830, 833 (Minn. App. 1987), review denied (Minn. Feb. 24, 1988).  This court then heard the case on a second appeal regarding the conclusions the district court reached on remand (“Duffey II”).  In Duffey I, this court remanded the case for a determination of permanent spousal maintenance without directing the district court how to determine that issue.  Duffey, 416 N.W.2d at 833.  Petitioners sought additional discovery on remand.  Duffey, 432 N.W.2d at 475.  The trial court expressly articulated its conclusion that “no further discovery . . . is necessary” and set permanent maintenance based on the existing record.  Id. at 475.  Concluding that the district court did not abuse its discretion by declining to reopen the case to hear new evidence, this court in Duffey II affirmed the district court’s remand order.  Id. at 477-78.  The court stated that since this court’s “general remand . . . was without specific direction” in Duffey I, the district court had “broad discretion” to determine the issue on remand “as it saw fit.”  Id. at 476.  This court further concluded in Duffey II that a second remand was not necessary.  Id.   

Like the appellate order in Duffey I, which did not specify how the district court was to proceed in determining permanent maintenance on remand, this court’s order in Kozel I did not specify whether the district court was to reopen the record and consider new evidence on remand.  When the district court opted not to reopen the record, its decision was supported by Duffey II.  We decline to infringe on the district court’s discretion to make the same decision in this case.  Appellant relies heavily on Kuchinski.  This court remanded Kuchinski with the specific order to receive new evidence.  551 N.W.2d at 729.  This court’s only directive when it remanded the current case, however, was to apply Minn. Stat. § 518.551, subd. 5d(b).  Kozel, 2005 WL 1217339, at *6.  Unlike Kuchinski, which was remanded specifically “for the taking of additional evidence on the appropriate imputed income,” 551 N.W.2d at 729, the present case was not remanded for the purpose of hearing additional evidence.  The distinction is crucial.  Because there was a specific directive to reopen the record in Kuchinski, while no such directive existed in the current case, appellant’s reliance on Kuchinski is not persuasive.   

In both Duffey and the current case, the record reasonably supports the conclusion that the district court arrived at a calculated decision not to hear new evidence.  Like the district court’s remand order in Duffey I, which expressly stated that “no further discovery . . . is necessary,” Duffey, 432 N.W.2d at 475, the district court’s remand order in the current case stated, “[t]he testimony and exhibits of record, together with the submitted arguments of counsel, is sufficient basis for determination of [appellant’s] estimated earning ability.”

An appellate court cannot make assumptions regarding “evidence not included in the record nor in any way disclosed.”  State by Clark v. Wolkoff, 250 Minn. 504, 520; 85 N.W.2d 401, 412 (1957).  The argument appellant makes for reopening the record is that a presumably favorable vocational evaluation was completed subsequent to this court’s first order but prior to the district court’s remand decision.  We find this argument unpersuasive.  Appellant makes only the conclusory statement that the vocational evaluation is “invaluable to the court’s imputation of income” without suggesting what the evidence reveals or how it would have, if considered, influenced the district court’s imputation of income.  The burden rests on appellant to make such a showing in order to establish that a substantial change in circumstances makes the existing child support award unreasonable and unfair.  Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002). 

            Appellant asserts that neither party submitted evidence relating to her earning capacity.  The existing record contains extensive documentation expounding on appellant’s education, training, experience, and earnings history.  The record also contains findings regarding appellant’s skills and her marketability as a paralegal as well as a special education teacher.  This information constitutes sufficient evidence pertaining to appellant’s earning capacity.  Determining appellant’s earning capacity without considering a vocational report, the contents of which remain unspecified, does not constitute an abuse of discretion.  Respondent, relying on Eisenschenk v.  Eisenschenk, correctly points out that, “[o]n appeal, a party cannot complain about a district court’s failure to rule in her favor when . . . that party failed to provide the district court with the evidence. . . .”  668 N.W.2d 235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003).  Appellant did not introduce evidence from the vocational expert when the record was kept open following the hearing before the CSM, and nearly a year and a half later, when appellant first requested that the district court consider this evidence, appellant declined to substantiate why it was important.  This court ruled in Taflin v. Taflin that appellant cannot complain when the district court declines to modify a support award due in part to appellant’s own failure to provide adequate documentation.  366 N.W.2d 315, 319 (Minn. App. 1985).  

If a vocational evaluation would have supported appellant’s position, appellant should have conducted the evaluation earlier and introduced it into evidence.  By making a limited reference to the existence of the vocational evaluation, appellant failed to provide the district court with evidence that may have assisted the court in estimating appellant’s earning capacity. 

We conclude the district court acted reasonably when it declined to reopen the record upon remand

Affirmed.