This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1473

 

Derek Dennis Ussatis, petitioner,

Appellant,

 

vs.

 

Nikki Jo Johnson Ussatis,

Respondent.

 

Filed June 12, 2007

Affirmed

Halbrooks, Judge

 

 

Dakota County District Court

File No. F3-03-8752

 

Julie K. Seymour, Otten & Seymour, 108 Professional Plaza, 1601 East Highway 13, Burnsville, MN 55337 (for appellant)

 

Paul H. Thomsen, 16670 Franklin Trail Southeast, Suite 250, Prior Lake, MN 55372 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant argues that the district court abused its discretion when it denied his motion for child-support modification.  Because we conclude that the district court acted within its discretion, we affirm.

FACTS

            In the course of the dissolution of their marriage, appellant Derek Dennis Ussatis entered into a marital-termination agreement and an amended marital-termination agreement with respondent Nikki Jo Johnson Ussatis.  Pursuant to the stipulated judgment, the district court awarded the parties joint legal custody of their two children and awarded sole physical custody to respondent, subject to appellant’s liberal visitation.  Child support was set at the stipulated amount of $630 a month, and the parties consented to each pay 50% of any agreed-upon extracurricular activities for the children. 

            Approximately two years later, appellant left his job as a maintenance worker for the City of Eden Prairie.  Appellant found immediate seasonal work lasting through February 2006, when he started his own irrigation business with a former business partner. 

Appellant subsequently moved for a reduction of his child-support obligation based on a substantial change of circumstances because his income had decreased.  Respondent moved the district court for denial of appellant’s motion on the ground that the district court should impute appellant’s former income with the City of Eden Prairie to him because appellant voluntarily quit a higher paying job to start his own business.  In addition, respondent sought an order requiring appellant to pay her $2,665.63 for unreimbursed health-care, daycare, and extracurricular-activity costs.  The district court denied appellant’s motion to modify child support, finding that it was appropriate to impute income to appellant because he voluntarily resigned from his job with the City of Eden Prairie.  With respect to extracurricular expenses, the district court reiterated that appellant is obligated to pay only his portion of the agreed-upon activities.

            Appellant sought reconsideration, submitting for the first time two letters to appellant from the City of Eden Prairie.  The first, dated September 16, 2005, stated that appellant was terminated for misconduct and failure to follow attendance policies.  The second letter, dated November 4, 2005, stated that appellant’s reason for leaving employment has been changed in city records at the request of appellant’s union to reflect “voluntary termination/resignation” and to resolve any outstanding grievance.  The district court denied the motion for reconsideration.  This appeal follows.

D E C I S I O N

            Appellant challenges the district court’s denial of his motion for a reduction in his child-support obligation and asserts on appeal that the district court abused its discretion by ordering him to pay child support that is an upward deviation from the Minnesota child-support guidelines without making findings to support the deviation.  The district court has broad discretion to provide for the support of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law.  Id.; Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998).  Whether to modify support is discretionary with the district court, and its decision will be altered on appeal only if it resolved the matter in a manner that is against logic and the facts on record.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  “The moving party has the burden of proof in support-modification proceedings.”  Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002). 

            A district court may modify child-support payments based on the movant’s showing that the terms of the existing support order are unreasonable or unfair because of substantial increase or decrease in earnings, substantial increased or decreased need of a party or child(ren), receipt of public assistance, or a change in the cost of living.  Minn. Stat. § 518.64, subds. 1-2 (2004).[1]   Furthermore:

            It is presumed that there has been a substantial change in circumstances . . . and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if . . . the application of the child support guidelines . . . to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order[.]

 

Minn. Stat. § 518.64, subd. 2(b).  The district court is required to consider the appropriate factors and make specific findings.  Moylan v. Moylan, 384 N.W.2d 859, 863, 865 (Minn. 1986).  When a modification is appropriate, the district court will use the statutory guidelines that base the support obligation on a percentage of net income per month.  Minn. Stat. § 518.64, subd. 2(b) (referring to Minn. Stat. § 518.551, subd. 5(b) (2004)).

            Here, the district court found that appellant earned $2,350 in gross monthly income and $1,655 in net monthly income in his prior job and earns $2,166 gross monthly income from his own business.  Appellant submitted no information to the district court regarding his monthly expenses, and, as a result, the district court made no findings concerning appellant’s reasonable expenses.

            Appellant now asserts that his resignation was not voluntary, and his choice of starting a business was made in good faith to continue his support obligation; therefore, the district court should not have imputed income from his prior job to him.  This court reviews a district court’s decision to impute income for an abuse of discretion.  Putz, 645 N.W.2d at 352-53.  Determining an obligor’s income for calculating child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002). 

            Generally, “[t]he obligation to pay childsupport is premised on the obligor’s ability to pay.”  Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991).  But the district court must imputeincome when calculatingchildsupport if it finds that the obligor is voluntarily unemployed or underemployed. Minn. Stat. § 518.551, subd. 5b(d) (2004).  “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.”  Id.; see also Bartl v. Bartl, 497 N.W.2d 295, 298 (Minn. App. 1993) (reinforcing that “although an obligor’s prior income is not the only relevant factor in determining his ability to pay child support, it is one of the relevant factors to which a court can look in determining the obligor’s net income” and it “should be discounted to the extent demanded by the totality of the circumstances”).      

            Imputation of income to a parent is appropriate if the parent “chose to be unemployed or underemployed and neither statutory condition applies.”  Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994) (footnote omitted).  But a parent is not considered voluntarily unemployed or underemployed if the condition “(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.”  Minn. Stat. § 518.551, subd. 5b(d). 

In considering whether to impute income, the district court evaluates whether the change of employment was made in good faith.  Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn. 1982) (using test where unemployed obligor started business that drained savings).  But the movant must show that the temporary loss of income will lead to a greater certainty of increased earnings later.  Putz, 645 N.W.2d at 353.

            With his motion for a reduction in his child-support obligation, appellant submitted a supporting affidavit that stated that he “resigned . . . in order to start my own irrigation business again.”  Similarly, in a subsequent affidavit, appellant characterized the circumstances of his job change as occurring “[a]fter deciding to leave [my prior employer] and begin my company.”  Only at the motion hearing did appellant’s attorney state for the first time that appellant “involuntarily resigned.”  There was no documentary support for this assertion in the record.

In its order, the district court determined that “[appellant] voluntarily discontinued his employment . . . and the income he earned at [his former employer] should be imputed to him for child support and child care purposes.”  The district court explained that appellant’s “[a]ffidavits refer to his resigning and leaving this job.  Only during oral argument did [appellant’s] attorney mention any involuntary separation from this employment, but no documentation of any involuntary separation was provided.” 

            In support of her argument that appellant’s voluntary underemployment does not meet the requirements of Minn. Stat. § 518.551, subd. 1b(d), respondent provided documentation of appellant’s annual income from his formerly owned irrigation business for the five years that preceded his employment with the City of Eden Prairie:  $8,143 in 1998 (gross); $10,381 in 1999 (net); ($1,881) in 2000 (gross); $526 in 2001 (net); and $7,398 in 2002 (net).  The business ended in bankruptcy two years after appellant left.  Appellant contends that this income allowed the family to live comfortably and that his one-half of the partnership earned him $8,750 when he cashed out.  Appellant further claims that his current venture will be more successful because of its expanded services and client base.

            Based on the record, the district court found:

            The parties have different opinions of whether [appellant’s] new business will be successful.  Based upon the tax returns of [appellant’s] prior similar business, [respondent’s] concern and assessment is reasonable.  Consequently, it is appropriate and reasonable to impute to [appellant] the income that he earned before he voluntarily discontinued his employment at Eden Prairie.

 

The district court’s determination that appellant voluntarily resigned from his position is supported in the record.  Therefore, we conclude that the district court acted within its discretion by imputing income to appellant and denying appellant’s requested modification. 

            Appellant’s second issue is that the original child-support award was not supported by sufficient findings.  We note that appellant never challenged the original award.  As a result, this challenge is not timely, and he has waived it.  Minn. R. Civ. App. P. 104.01; Nazar v. Nazar, 505 N.W.2d 628, 632-33 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).

            Affirmed.