Jill I. Frieders, O'Brien, Ehrick, Wolf, Deaner & Maus, L.L.P., P.O. Box 968, Rochester, MN 55903-0968 (for respondent)

Lawrence Downing, Lawrence Downing & Associates, 330 Norwest Center, 21 First Avenue Southwest, Rochester, MN 55902 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Parker, Judge,[**] and Schultz, Judge.

Appellant challenges two district court orders, arguing that: (1) his maintenance obligation should be terminated because of what he alleges to be a substantial change in his circumstances; (2) respondent should be compelled to pay child support because appellant has custody of the couple's one minor child; and (3) his obligation to pay arrearages should be suspended. Respondent moves to strike part of appellant's reply brief. We affirm and deny respondent's motion.

Appellant David Eugene Bierne and respondent Sandra Rae Bierne were married in 1978 and have two children. Respondent petitioned to dissolve the marriage in February 1994, and the petition was granted. Originally, respondent had custody of both children, but in 1996 the parties stipulated that appellant would have custody of one, while respondent retained custody of the other.

In January 1997, appellant moved the district court to reduce his child support because he had custody of one of the children. In an April 1997 order, the district court modified appellant's child support, but apparently did so incorrectly based on a misreading of the child support guidelines. Appellant appealed that order to this court. Meanwhile, in July 1997, the parties stipulated that appellant should have physical custody of both children and that his child support obligation to respondent should terminate. The court of appeals issued its decision in February 1998, remanding for the district court to recalculate appellant's child support obligation using the correct guidelines amount for supporting one child but affirming the district court's April 1997 order on all other issues.

On April 20, 1998, appellant, a dentist, injured his hand and became temporarily unable to work. He had disability insurance, but coverage under those policies did not start immediately. Appellant filed motions in the district court asking it to compel respondent to pay him child support; to suspend, terminate, or lower his spousal maintenance obligation; to allow him to purge an order finding him in contempt; and to award him attorney fees.

The court conducted a hearing on July 17, 1998, based on the parties' motions and on the court of appeals remand order, that resulted in an order on November 20, 1998. That order recalculated appellant's support obligation, forgave appellant's maintenance arrearages for the time between his injury and the payment of insurance benefits, imposed a zero child support obligation on respondent, and refused to suspend appellant's maintenance obligation.

While the decision on that hearing was pending, appellant continued to file motions with the district court. Those motions were heard on November 4, 1998, resulting in an order on November 23 (amended December 4). This order denied appellant's motions, finding that the substance of appellant's additional motions had been dealt with in the November 20 order. This appeal of these orders followed.

Appellant has two insurance policies paying him benefits as a result of his accident: one pays $2,000 per month to cover business overhead and one pays $6,000 per month to replace appellant's wages. The court did not clearly err by determining that appellant has a monthly income of $6,000.

Although appellant argues that the court refused to consider his business debts, the record indicates that the district court closely reviewed all of appellant's alleged expenses and, based on the credibility of a number of appellant's claimed expenses, the district court found appellant's reasonable expenses to be $3,500. The court may not have attributed to appellant's claims the weight or credibility that appellant would have desired, but this court gives due regard to the district court's determinations of credibility and weight of the evidence. Minn. R. Civ. P. 52.01.

Based on the district court's findings, we see no abuse in the court's decision to (1) grant a temporary reduction to $1,500 in appellant's maintenance obligation beginning September 1, 1998, and (2) forgive his maintenance obligations accrued from the time of his injury in April 1998 until he began receiving insurance payments in August 1998.

In the memorandum to the April 21, 1997 order, the district court determined that respondent had "the ability to earn net income of $1,000 per month." At the time of that order, respondent had custody of one of the parties' children, and this figure apparently was used in setting appellant's support and maintenance obligations. But now appellant, having custody, claims that he is entitled to child support payments from respondent based on her imputed and maintenance income.

The court may impute a party's earning capacity as income for determining child support if the court finds that the party is voluntarily underemployed. Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996). Appellant argues that the district court abused its discretion by not ordering respondent to pay guidelines' level child support based on her maintenance and imputed income. But this court has upheld a deviation from child support guidelines for a noncustodial mother whose only source of income is maintenance. O'Donnell v. O'Donnell, 412 N.W.2d 394, 397 (Minn. App. 1987). The O'Donnell court noted that, because the mother's only source of income was maintenance, which was granted to meet her needs, it did not make sense to compel her to pay child support from that amount because this would just increase her need. Id. Here, respondent's earning capacity has been incorporated in her maintenance award, and, arguably, but for the imputed income, appellant's maintenance obligation would have to be $1,000 more to meet respondent's needs. Under O'Donnell, we cannot say that the district court abused its discretion by not compelling respondent to pay child support out of her maintenance income. Appellant can move to modify the support award if respondent's financial circumstances substantially change. Minn. Stat. § 518.64 (1998).

Because the court found respondent's only income was from maintenance payments and her earning capacity was integrated in the maintenance award, we affirm the district court's determination that respondent's child support obligation is zero.

In Bierne v. Bierne, No. C2-99-31 (Minn. App. Feb. 17, 1999) (order op.), this court dismissed appellant's appeal of the district court's contempt order as premature. Therefore, if appellant is attempting to challenge the purge condition that appellant pay arrearages, he is barred from doing so.

The district court forgave appellant's maintenance obligations from April until August 1998. In the motions giving rise to the appealed orders, appellant did not ask the district court to decide whether appellant's unpaid maintenance obligations accruing before April 1998 should have been forgiven because of an inability to pay them as they accrued. Not being litigated in the court below, this issue will not be addressed on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

We deny respondent's motion to strike a portion of appellant's brief.

Affirmed and motion denied.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.

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