Opinion
No. C7-02-831.
Filed March 4, 2003.
Appeal from the District Court, Dakota County, File No. F19915208.
Gina M. Shaughnessy, (pro se respondent)
John G. Westrick, Tammy L. Merkins, Westrick McDowall-Nix, P.L.L.P., (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Minge, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant Larry Malcolm Shaughnessy argues that (1) the child support magistrate (CSM) did not adequately consider the factors listed in Minn. Stat. § 518.551, subd. 5(c) (2002), in its order that increased appellant's child support payments; (2) it was clearly erroneous for the CSM to find that appellant lacked "clean hands" and was voluntarily underemployed; and (3) the CSM abused its discretion by imputing $32,000 in income to appellant. We affirm.
DECISION I.
The standard for reviewing a child support magistrate's decision is the same as it would be if the district court had made the decision. Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App. 2000). The district court has discretion in determining whether to modify child support, and its decision will not be reversed absent an abuse of that discretion where its conclusion is against logic and the facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).
The district court's discretion, however, is limited by the governing statute. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). Minn. Stat. § 518.64, subd. 2(c)(1) (2002), requires the CSM to consider the factors listed in section 518.551, subdivision 5, when considering a motion to modify a support order. These factors include:
(1) all earnings, income, and resources of the parents, including real and personal property * * *;
(2) the financial needs and resources, physical and emotional condition, and educational needs of the child * * * to be supported;
(3) the standards of living the child would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households[.]
Minn. Stat. § 518.551, subd. 5(c) (2002).
If this court is unable to determine from the district court's findings whether the statutory requirements were properly met, this court must remand for further findings. Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).
Appellant argues that the CSM failed to properly consider the factors listed in Minn. Stat. § 518.551, subd. 5(c), in its decision to modify appellant's child support. Appellant acknowledges that in its order, the CSM stated that the decision to deny appellant's request to decrease appellant's child support payments and to grant respondent's request to increase appellant's child support payments was based not only on the needs and financial circumstances of the parties, but also "upon a consideration of the factors set out in Minn. Stat. § 518.551, subd. 5(a)(k)." But appellant argues that because the court did not specifically address in detail each of the factors listed in Minn. Stat. § 518.551, subd. 5(c), the matter must be remanded to the CSM. We disagree.
The CSM is not required to make specific findings relating to each factor but rather the findings as a whole must show that the CSM considered the relevant factors. Roehrdanz v. Roehrdanz, 410 N.W.2d 359, 362 (Minn.App. 1987). Here, the CSM's order clearly states that the CSM considered the factors listed in Minn. Stat. § 518.551, subd. 5(c). And the CSM's findings generally reflect that the CSM properly considered the factors mandated by the legislature in its decision to increase appellant's child support payments.
II.
In determining whether findings are clearly erroneous, this court reviews the record in the light most favorable to the district court's findings. Lossing v. Lossing, 403 N.W.2d 688, 690 (Minn.App. 1987). A finding is clearly erroneous if the reviewing court is "left with the definite and firm conviction that a mistake has been made." Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). A district court's findings are not clearly erroneous simply because the record may support findings other than those made by the district court. See Elliott v. Mitchell, 311 Minn. 533, 535, 249 N.W.2d 172, 174 (1976).
Appellant argues that it was clearly erroneous for the CSM to state in its findings of fact that appellant lacked "the clean hands necessary to grant [appellant] the equitable relief requested." But there is evidence in the record to support the CSM's finding. The record indicates that on more than one occasion Dakota County threatened to suspend appellant's driver's license unless appellant made his past due child support payments.
In addition, other factors supported the CSM's decision to deny appellant's request to lower his child support payments. In order to have his child support payments decreased, appellant needed to show a substantial decrease in earnings that made the terms of the existing support order unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a)(1) (2002). At the time of the previous order, appellant was unemployed. And since that time, appellant has worked at several jobs. Thus, appellant failed to show a substantial decrease in earnings that made the terms of the existing support order unreasonable and unfair.
Appellant also argues that because he quit his job to go back to school, the CSM's finding that appellant was voluntarily underemployed was clearly erroneous. We disagree.
The statute governing whether a person is voluntarily unemployed or underemployed, Minn. Stat. § 518.551, subd. 5b(d) (2002), states:
A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment:
(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.
But in Putz v. Putz, 645 N.W.2d 343 (Minn. 2002), the Minnesota Supreme Court ruled that there is no special exception under Minn. Stat. § 518.551 for obligor parents who return to school. 645 N.W.2d at 349. Thus, a parent returning to school who claims not to be voluntarily underemployed has the burden of showing that his or her decision will lead to an increase in income or that the decision represents a bona fide career change. Id.
Here, appellant claimed to be returning to school to obtain an information technology (IT) degree. Thus, appellant has the burden of establishing that his enrolling in school will ultimately lead to an increase in income or is a bona fide career change. Id. The fact that the decision to enroll in school is merely "designed" to lead to an increase in income is not enough. Id. at 353. In Putz, the supreme court imputed income to the party after finding that the party's assessment of his future earnings was "entirely speculative." Id.
To attempt to meet this burden, appellant presented three advertisements to the CSM. One advertisement was for an IT position that paid a salary of $85,000 to $100,000 a year. The other two advertisements were for jobs that provided a range of starting wages between $40 and $60 an hour. But as in Putz, the CSM determined that appellant's assessment of his future earnings was merely speculative because (1) the advertisement for the job paying $85,000 to $100,000 a year required five years of experience; and (2) the advertisements for the two jobs that paid between $40 and $60 an hour were classified as "temporary/contract" positions.
Thus, the CSM properly found that appellant failed to establish that obtaining an IT degree would increase his income to an amount greater than the $32,000 a year he was earning at Sears before he voluntarily quit. Therefore, appellant did not sufficiently show that appellant's IT degree would "ultimately lead to an increase in income." Minn. Stat. § 518.551, subd. 5b(d).
In addition, the CSM noted numerous examples of appellant's bad faith conduct: (1) appellant's employment history was consistent with job-hopping for the purpose of avoiding automatic income withholding; (2) appellant quit his job as a car salesman and decided not to work during the months before he started school; and (3) appellant failed to take advantage of the opportunity to attend school part time and work part time. Because these findings are supported by the facts in the record, we conclude that the CSM did not clearly err in concluding that appellant was voluntarily underemployed.
III.
Once a CSM finds an obligor is "voluntarily unemployed or underemployed," the support obligation is determined based on imputed income. Minn. Stat. § 518.551, subd. 5b(d) (2002). Imputed income is defined as
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.
Minn. Stat. § 518.551, subd. 5b(d). The CSM enjoys broad discretion in imputing income. See, e.g., Murphy v. Murphy, 574 N.W.2d 77, 82-83 (Minn.App. 1998) (applying abuse-of-discretion standard of review to ALJ's setting child support on basis of imputed income).
Appellant contends that the CSM erred by imputing $32,000 in income to appellant based on a full-time work schedule after suggesting that appellant could have attended school part time and worked part time. Appellant argues that his imputed income should be recalculated based on a part-time work schedule. We disagree. Appellant testified at the hearing that $32,000 a year was the salary he was making before he voluntarily quit. A court may consider an obligor's prior income to determine the obligor's current ability to pay support. Darcy v. Darcy, 455 N.W.2d 518, 522 (Minn.App. 1990).
In addition, the CSM's findings and conclusions properly give appellant's child support obligations precedence over his schooling. This is consistent with the portion of Putz where the supreme court found that imputing income to an obligor furthers the "strong state policy of assuring that children have the adequate and timely economic support of their parents." Putz, 645 N.W.2d at 352 (quoting Schaefer v. Weber, 567 N.W.2d 29, 33 (Minn. 1997)).
The obligation of a father to support his progeny must take precedence over every consideration for himself not arising from the absolute necessities of self- sustenance.
State v. Fuerst, 283 Minn. 391, 392-93, 168 N.W.2d 1, 2 (1969). We thus conclude that the CSM did not abuse its discretion in imputing $32,000 of income to appellant.
IV.
Finally, citing changes that have occurred since the hearing with the CSM in December 2001, respondent seeks to have appellant contribute to certain additional costs. Respondent admits that she is raising these issues for the first time on appeal. An appellate court generally may not consider issues that are being raised for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). And in Hedburg v. Hedburg, 412 N.W.2d 43 (Minn.App. 1987), this court held that we cannot consider any matter referred to by parties not included in the record before us. 412 N.W.2d at 46. Thus we decline to address respondent's requests.