Opinion
No. C6-95-1996.
Filed July 2, 1996.
Appeal from the District Court, Stearns County, File No. F1-89-1402.
Julie Anne Alsaker, (respondent pro se).
Roger P. Schmidt, Schmidt and Lund Law Firm, (for appellant).
Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Kalitowski, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Appellant Joel Charles Alsaker claims that the district court (1) modified his support obligation without making necessary findings, (2) erroneously found him to be voluntarily underemployed, and (3) set his support obligation at an excessive amount. We affirm.
DECISION I.
Child support may be modified upon a showing of changed circumstances rendering the current support award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (Supp. 1995). A district court's modification of child support will not be reversed absent an abuse of its "broad discretion." Moylan v. Moylan , 384 N.W.2d 859, 864 (Minn. 1986). When parties share joint physical custody of a child, the child support guidelines "should be straight-forwardly applied," with each parent paying the guideline support amount to the other parent when that parent has custody of the child. Broas v. Broas , 472 N.W.2d 671, 673 (Minn.App. 1991).
Appellant claims that the district court's findings are inadequate to allow modification of support because they compare the parties' current financial circumstances with those existing at the time of the original dissolution, rather than the stipulated 1993 amendment. See Ricketson v. Ricketson , 402 N.W.2d 588, 590 (Minn.App. 1987) (change in circumstances to be measured from most recent modification). At the 1995 hearing, appellant claimed to have a net monthly income of $870, but the district court found him voluntarily underemployed and estimated his earning capacity to be "at least 3 times his present income." After apportioning support for the time the child is in each party's custody, guideline support for an obligor with appellant's estimated earning capacity is more than 20% and $50 greater than his current $200 support obligation. Therefore, appellant's current support obligation is presumptively unreasonable and unfair under the standard set out in Minn. Stat. § 518.64, subd. 2(a).
Father also claims that there is no evidence on which to base the necessary findings. While the district court's 1995 order states that the 1993 order was not in the file, the district court did cite the parties' stipulation. By the time of this appeal, the 1993 order was in the file.
Father does not specifically challenge the district court's finding that he could earn "at least 3 times his present income."
Mother's total net monthly income of $1500 is derived from working two full-time jobs. Income earned by working over 40 hours per week is only subject to being a basis for support under certain conditions. Minn. Stat. § 518.64, subd. 2(b)(2). Because the record and the parties' stipulations support not using the income mother earns from her second job as a basis for child support, even if father's presumptive support obligation were offset by the amount of mother's presumptive support obligation, father's support obligation would still be more than 20% and $50 greater than his current obligation.
II.
Appellant argues that the lack of a finding that his current support obligation is unreasonable and unfair renders the support modification defective. A finding that appellant's current support obligation is unreasonable and unfair is supported by the record because he is underemployed and could earn three times his current income, while respondent works two jobs. See Hennepin County v. Hanneman , 472 N.W.2d 149, 153 (Minn.App. 1991), review denied (Minn. Aug. 29, 1991) (affirming implicit ruling that prior support award was unfair).
Appellant also claims that his support obligation cannot be based on his earning capacity because there has been no finding that he is underemployed in a bad faith attempt to avoid paying support, as required by Schneider v. Schneider , 473 N.W.2d 329, 332 (Minn.App. 1991). Bad faith by a support obligor is no longer required for an obligation to be based on earning capacity. See Franzen v. Borders , 521 N.W.2d 626, 628 (Minn.App. 1994) (where district court found obligor "unjustifiably self-limited his income" and imputed income to obligor, admitting existence of Schneider , but reviewing imputation issue under Minn. Stat. § 518.551, subd. 5b(d) (1994), which became effective after Schneider was issued).
Under Minn. Stat. § 518.551, subd. 5b(d), an obligor is not voluntarily underemployed if the obligor shows that the underemployment is temporary and will lead to increased income or if the underemployment represents a bona fide career change outweighing the change's adverse impact on the child. Appellant claims that he is not underemployed and that support should be based on his actual income on the ground that he cannot currently make more money because he is studying to become a stock and commodities trader.
In statutory terms, appellant claims that his current underemployment represents a "bona fide career change." The district court rejected appellant's claim and found him underemployed. This rejection is consistent with appellant's failure to enter evidence about whether his proposed career change will outweigh the adverse impact his studying, and hence his limited ability to pay support, currently has on the child. Also, the transcript shows that the district court indicated it did not find appellant's claims on this issue credible. Cf. Minn.R.Civ.P. 52.01 (it is sufficient if findings are stated and recorded in open court after close of evidence). We defer to district court credibility determinations. Sefkow v. Sefkow 427 N.W.2d 203, 210 (Minn. 1988).
Appellant claims that because the district court did not make certain findings, a remand is required under Ricketson . The factors the district court allegedly did not address are those listed in Minn. Stat. § 518.551, subd. 5(c) (Supp. 1995). In Ricketson the remand was based on Moylan , which was partially overruled by statute in 1991. See 1991 Minn. Laws ch. 292, art. 5, §§ 75-78 (amending child support guidelines). Currently, findings on the factors listed in Minn. Stat. § 518.551, subd. 5(c), are needed only if support is ordered in an amount deviating from the guideline amount. Minn. Stat. § 518.551, subd. 5(i) (Supp. 1995).
Given the imprecise estimate of appellant's earning capacity and the support obligation ordered by the district court, it is not clear that the district court did anything other than apply the guidelines pursuant to Broas ' s joint-custody formula. Therefore, findings under Minn. Stat. § 518.551, subd. 5(c), were not required. Further, if there are reasons for not applying the joint-custody formula, the district court has the discretion to set support in any manner reflecting the parties' financial circumstances. Pavlasek v. Pavlasek , 415 N.W.2d 42, 45 (Minn.App. 1987). On this record, we cannot say that appellant's support obligation does not reflect the parties' financial circumstances or that the district court abused its wide discretion in setting support.
Appellant also challenges the procedure used by the district court. However, a review of the record reveals that he did not raise these concerns to the district court. Therefore, we cannot address these issues on appeal. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts do not address issues not presented to district court).
III.
Appellant claims that because the child spends more time with him than is indicated by the joint custody schedule, respondent should pay additional support to him under the joint custody formula. Appellant's application of the formula is incorrect because (1) he assumes that respondent's support obligation should be based on her total income from two jobs and that his support obligation should be based on his actual net monthly income, (2) he ignores the finding that one reason respondent cannot spend much time with the child is because she has to work two jobs due to his failure to pay more support, and (3) appellant's arithmetic in determining the number of hours the child spends with mother is incorrect.