Opinion
No. C0-95-2433.
Filed May 14, 1996.
Appeal from the District Court, Ramsey County, File No. F691186.
Harold R. Wingerd, (for Respondent)
David A. Singer, (for Appellant)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Amundson, Judge.
Unpublished Opinion
Having been denied a downward modification of his child support and maintenance obligations, appellant Bernard Kroupa disputes (a) the trial court's finding that he is capable of producing enough income to pay the prior awards and (b) the trial court's companion findings that he has made only minimal efforts to obtain employment in his field and thus has not made a good faith effort to meet his marital obligations. We affirm.
Facts
The marriage of the parties was dissolved in 1992. Custody of two children, now ages 17 and 13, was placed with respondent Deborah Kroupa. Appellant was ordered to pay child support of $1,200 per month and permanent spousal maintenance of $3,000 per month plus 35% of any gross bonus. In 1994, reflecting cost of living changes, the support was altered to $1,277.63 and the basic maintenance to $3,194.06.
Since the time of the 1992 judgment, respondent has worked part-time as a commissioned salesperson with W-2 income of $8,579.15 in 1992, $6,132.00 in 1993, and $5,829.09 in 1994. Current monthly living expenses for respondent and the two children are $4,910, including the children's private school tuition.
The court found that appellant owed $6,707.49 in back child support and maintenance as of April 15, 1995, all accruing in 1995. Appellant's gross income since entry of the judgment was $297,963.00 in 1992, $511,954.00 in 1993, and $130,052.00 (W-2 only) in 1994. Appellant has remarried but has not produced a 1994 joint income tax return.
At the time of the judgment, appellant was employed as a senior vice president for Metropolitan Federal Bank with a gross annual base income of $120,000, excluding anticipated bonuses. Appellant was terminated from his position with Metropolitan Federal Bank in December 1993. Immediately after his termination, appellant sought another position within the banking industry, resulting in his employment with the Bank of Arizona on March 1, 1994. Appellant resigned from his position with the Bank of Arizona, effective December 6, 1994. Appellant contends that if he had not resigned from his position with the Bank of Arizona, he would have been terminated.
After his resignation, appellant did not vigorously pursue similar employment in the banking industry. He did not contact placement firms or send out resumes, although he did report speaking with three persons in the mortgage banking industry about his situation and whereabouts. Appellant alleges he is currently exploring the deregulation of the natural gas business in Michigan and the requirements for obtaining a securities license.
At the time of the hearing, appellant stated that he was employed as a laborer at his current wife's cherry farm, with estimated net annual income of $15,000. Appellant was awarded the Michigan cherry farm and 180 acres of contiguous real estate in the judgment. In September 1994, appellant transferred his interest in the cherry farm and real estate to his current wife. Appellant alleges that he transferred the property to his current wife "in consideration" for her choice to put up her liquid assets as collateral for a loan to pay off a debt on the property.
Before the transfer, appellant and his current wife had developed an 80- acre tract of the farmland into nine parcels. Two of the parcels were sold before appellant deeded the property to his current wife, and since that time she has sold the remaining seven parcels. In total, six of the parcels were sold on land contracts and three were sold outright. Appellant alleges that the proceeds from the sales were applied to the bank loan, which has a current balance of approximately $175,000, and that at the present time, there are no periodic payments from the sales of the property.
Decision
1. Downward modification
The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the broad discretion accorded to it. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The decision to modify a child support order lies in the "broad and sound discretion of the trial court"; an appellate court will reverse for an abuse of discretion only where it finds a `clearly erroneous conclusion that is against logic and the facts on record."' Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (citation omitted). The trial court found that appellant made only minimal efforts to obtain other employment in his field and did not demonstrate a good faith effort to meet his child support and maintenance obligations. We must determine whether appellant has experienced a bona fide career change in assessing the fairness of his child support obligation. See Minn. Stat. ___.551 subd. 5b(d) (1994) (providing that a parent is not considered voluntarily underemployed and subject to imputation of income upon a showing that underemployment represents "a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child"). In determining maintenance obligations based upon an obligor's earning capacity, there must be a finding of bad faith. Bourassa v. Bourassa, 481 N.W.2d 113, 116 (Minn.App. 1992).
The trial court found a lack of good faith effort, which we view as tantamount to a finding of no bona fide career change. Moreover, the referee found appellant was voluntarily underemployed.
Ample evidence sustains the finding that appellant had not made a bona fide career change or shown good faith in maintaining adequate earnings to pay his child support and maintenance obligations. Appellant is asserting his right to accept an immense income loss, resulting in severe adverse consequences for respondent and the parties' children. This reality undermines appellant's ability to show good faith or a bona fide career change. To demonstrate a bona fide career change, appellant would have to show a reasonable burden on his children and former spouse and a genuine reason for moving from one field to another. Appellant has made explanations for his current farm work, but he has not demonstrated why he cannot continue in more profitable employment. He did show that he lost a prior job, but he proved only minor efforts to find another position. The court did not clearly err in giving little weight to appellant's testimony that banking industry jobs are now more scarce, and we find no clear error elsewhere in the court's decision.
2. Other issues
a. Security bond
We find no abuse of discretion in determining the amount or the need for a security bond. See Minn. Stat. ___.24 (1994) (court may require sufficient security to be given for the payment of maintenance or support obligations). Appellant asserts that the trial court erred by ordering a bond without determining appellant's ability to pay the bond. We agree that it may have been more helpful to address his ability to pay, but the bond is a personal obligation, enforceable only by a contempt action, and that remedy could not be used in the absence of a showing that appellant failed to perform an obligation that he was able to perform. See Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968) (holding that inability to pay must be proven to establish contempt). We find there is adequate evidence that appellant is able to produce the bond.
b. Sequestration of funds
We find no abuse of discretion in the sequestration of a portion of appellant's funds. See Minn. Stat. ___.24 (court may sequester obligor's personal estate). Appellant was $6,707.49 in arrears on child support and maintenance through April 15, 1995. Appellant argues that the record does not support the need for sequestration of funds to pay support and maintenance and claims the sequestered funds now in escrow were reimbursement for business outlays and therefore should not be used to pay arrearages. We see no error in the trial court's finding that the reimbursements constitute personal property and therefore are subject to sequestration under the statute.
c. Attorney fees
Appellant challenges a $5,600 attorney fee award to respondent. The award of attorney fees is governed by Minn. Stat. ___.14 which provides that a party is entitled to an award of attorney fees where (1) the fees are necessary for a good-faith assertion of the party's rights, (2) the party from whom fees are sought has the means to pay them, and (3) the party to whom fees are awarded does not have the means to pay them. An award of attorney fees under section 518.14 "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). Considering the record, especially as it demonstrates appellant's earning ability and his earnings in recent years, and remembering the trial court's wide discretion in awarding attorney fees, we find no error in this award.