Opinion
No. A03-1317.
Filed March 30, 2004.
Appeal from the District Court, Wright County, File No. F7-00-50798.
Diane Marie Dixon, (pro se respondent).
Christopher Paul Heitzinger, (pro se appellant).
Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Pro se appellant Christopher Paul Heitzinger challenges a decision by a Child Support Magistrate (CSM) increasing his child support obligation from $94 to $315 per month, based on the CSM's imputation of income to him. Respondent Diane Marie Dixon, who is also pro se, has not filed a brief in this appeal. Because it appears that appellant was not given an opportunity to present documentary evidence regarding his current circumstances, including his employment and enrollment in a vocational program, we reverse and remand for further proceedings.
DECISION
Appellant essentially argues that he did not provide documentation regarding his employment and educational status because those issues were not raised in respondent's motion to modify child support. A motion to modify support must state the relief requested, the specific support that the party wants the CSM to order, the facts and grounds supporting the request for relief. Minn. R. Gen. Pract. 372.02, subd. 2; see Minn. Stat. § 518.5513, subd. 3(a) (2002) (information that must be included in pleadings to modify child support order include "net income of the parties as defined in section 518.551, subdivision 5, with the authorized deductions itemized," "amounts and sources of any other earnings and income of the parties," and "any other information relevant to the determination of child . . . support").
Here, respondent moved to modify child support due to increased needs, claiming that she is unable "to make ends meet." In response, appellant submitted an affidavit in which he claimed that no change in circumstances had occurred and that the prior order should not be modified. In particular, appellant stated that he does "not earn any more money now than [he] did when the most recent child support order was filed." Appellant further claimed that respondent had failed to show that her expenses have increased since the last order.
Following a hearing, the CSM made a number of findings summarizing appellant's testimony. In particular, the CSM found:
11. [Appellant] testified that he is enrolled in a 2 year Automotive Services Degree program at Dakota County Technical College. He testified that his education cycles between classroom instruction for 2 months, and then a paid internship for 2 months. He did not, however, present any documentation of enrollment in school or internship paystubs to verify this.
12. [Appellant] testified that he is unable to work during the times that he has classroom instruction. He testified that he enrolled in the program in August 2002 and began with classroom instruction.
13. [Appellant] testified that during the two months of internship, he works 40 hours per week earning $9.60 per hour.
14. The court finds it curious that [appellant's] affidavit which accompanied his response to [respondent's] motion did not mention the change in his employment or education status.
The CSM then examined the available evidence, which consisted of appellant's 2002 income figures, as reported by his employer to the Department of Economic Security. Based on those figures, the CSM decided to impute income to appellant because she found his testimony not credible "in the absence of any documentation about his education and earnings."
A fact finder must strive to calculate an obligor's current net income for purposes of child support. See Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989) (stating it was error for trial court to base finding of net income on obligor's income from previous year when obligor had submitted paycheck stubs for most of first half of current year). A court may calculate net income based on other evidence when a party offers current evidence or fails to appear. See id.; Minn. Stat. § 518.551, subd. 5b(c) (stating that if party fails to appear, court may determine income based on party's earning capacity or based on other credible evidence before court, which may include documentation of current or recent income, testimony of parties, or wage report filed pursuant to unemployment compensation requirements).
Given the state of the record here, appellant was not given reasonable notice that his income was at issue. Nor was he given an opportunity to present evidence on his current income. We therefore reverse and remand to allow appellant an opportunity to present such evidence.
We note that our review of this case is somewhat hampered by the lack of a transcript of the hearing before the CSM. When a transcript is not provided on appeal, our review is limited to determining whether the findings support the district court's conclusions of law. Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002). We further note that appellant has included a number of documents in his appendix that were not submitted to the CSM at the June 2003 hearing and are not part of the record on appeal. Minn. R. Civ. App. P. 110.01 (record on appeal includes papers filed with district court). While we cannot base our decision on evidence outside the record, these documents appear relevant to the issues involving appellant's current income and educational status. As such, on remand, appellant should be allowed to submit this evidence and present additional evidence regarding his current income.
Finally, on remand, the district court is reminded that imputation of income is not appropriate if a party can show that his or her employment situation is either (1) temporary and will ultimately lead to an increase in income, or (2) represents a bona fide career change that outweighs the adverse effect on the child of the party's diminished capacity. Minn. Stat. § 518.551, subd. 5b(d); see Putz v. Putz, 645 N.W.2d 343, 348-49 (Minn. 2002) (obligor who leaves job to return to school must show either of these two factors). Should appellant establish that either of these two circumstances apply, the court cannot consider him to be voluntarily unemployed or underemployed.
The CSM's decision to increase appellant's child support obligation is reversed and the matter is remanded for further proceedings consistent with this opinion.