In re Marriage of Evangelist

Full title: In Re the Marriage of: Glenda Lou Evangelist, petitioner, Respondent, v…

Court: Minnesota Court of Appeals

Date published: Feb 10, 1998

No. C9-97-1334 (Minn. Ct. App. Feb. 10, 1998)

Opinion

No. C9-97-1334.

Filed February 10, 1998.

Appeal from the District Court, Anoka County, File No. FX90942.

Glenda Lou Kaiser, f/k/a Glenda Lou Evangelist, (Pro se respondent)

Robert M.A. Johnson, Anoka County Attorney, Janice M. Allen, Assistant Anoka County Attorney, Attorney for the Public Authority, Anoka County Government Center, (for respondent)

Stephen M. Halsey, Esq., Moore, Halsey Eskola, L.L.C., PACO Office Center, (for appellant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.^__

__ Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI § 10.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).

UNPUBLISHED OPINION

TOUSSAINT, Chief Judge

Appellant Timothy Evangelist appeals the administrative law judge's (ALJ) amended judgment increasing his child support obligation. Because the ALJ has discretion to determine when to deviate from the child support guidelines and because the record supports the ALJ's income and expense findings, we affirm.

DECISION

We apply an abuse of discretion standard to a child support order resulting from an administrative hearing under chapter 518. See Polk County Social Servs. v. Clinton , 459 N.W.2d 362, 364 (Minn.App. 1990) (legislature intended administrative orders to be appealable to court of appeals and same standards of review apply); Taylor v. Taylor , 329 N.W.2d 795, 797 (Minn. 1983) (reviewing child support determination under abuse of discretion standard).

The ALJ ordered appellant to pay $993 per month, which represented guidelines support based on his current income. The ALJ made the following findings of fact (1) appellant's net monthly income was $3308 and respondent's income was zero; (2) appellant's monthly expenses were $2757, which included expenses for appellant's new wife, her son, and a later-born son; and (3) appellant failed to establish the need to deviate from the guidelines. See Minn. Stat. § 518.551, subd. 5(i) (1996) (when applying guidelines, the court shall make written findings concerning appellant's income and any other factors affecting support). The record supports these findings and the resulting guidelines support is not an abuse of discretion. Id. (guidelines are rebuttable presumption of support amount).

This case is distinguishable from cases finding an abuse of discretion when guidelines support resulted in a monthly shortfall for appellant's second family. See, e.g., Mancuso v. Mancuso , 417 N.W.2d 668, 673 (Minn.App. 1988) (reversing order resulting in monthly shortfall where appellant was solely responsible for all his minor children). Unlike Mancuso , appellant is not the sole support for his second family. Appellant's spouse resides with him and is available to provide support for their child and her child.

Appellant argues that Bock v. Bock , 506 N.W.2d 321 (Minn.App. 1993), mandates additional findings of his expenses supporting his new son. However, Bock addressed "what calculations are to occur if the trial court should deviate from the guidelines to consider the needs of subsequent children." Id . at 325. When the statutory guidelines are applied, the calculation must be made without regard for needs of children of a later union of the parent. Id. Here, because the appellant failed to establish that a deviation from the guidelines was required, the ALJ applied the guidelines and Bock requires nothing further.

Appellant also argues that the ALJ erroneously included overtime. A finding of net income for the purpose of calculating child support will be affirmed if it has a reasonable basis in fact. Strauch v. Strauch , 401 N.W.2d 444, 448 (Minn.App. 1987). Overtime income is properly included in calculating income to determine child support if it is a regular and steady source of income to the appellant. Id. To exclude overtime as excess income, an appellant must establish that "the excess employment began after entry of the existing support order." Minn. Stat. § 518.64, subd. 2(b) 2(i) (1996). Appellant cannot establish this factor because the previous child support order filed August 24, 1993, included overtime in its finding of appellant's net monthly income from Soo Line, his current employer. Where there is evidence to support the ALJ's income finding we must presume that the ALJ rejected appellant's contrary argument that his overtime income was excess income. See Minn.R.Civ.P. 52.01 (due regard given to district court to judge credibility and weigh evidence).

Affirmed.