Opinion
No. C5-00-1858, C4-00-1902.
Filed May 29, 2001
Appeal from the District Court, Itasca County, File No. FX94102.
Mark E. Carlson, (appellant pro se)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Mark E. Carlson appeals from an order denying his motion to modify child support, challenging the determination that he is voluntarily underemployed and arguing that the child-support magistrate erred in admitting evidence of his current employment obtained after the hearing, and in considering his spouse's contribution to monthly expenses. Because the evidence supports the magistrate's findings and the magistrate did not err, we affirm.
FACTS
Appellant Mark E. Carlson (Father) and Julie A. Carlson, n/k/a Julie Hartje (Mother), were married in 1992. The parties have one child, born in 1993. In 1994, the parties dissolved their marriage. In March 2000, Father's child support obligation was modified to $200 per month based on his average net monthly income of $1,125.42 from full-time employment with Haglun Marine in Duluth, excluding a pre-existing child-support obligation of $537 per month for two children of a prior marriage, and a $126.79 per month health-insurance cost, which does not cover the child in this appeal.
In June 2000, Father resigned from Haglun Marine due to stress and disagreements with management. On or about June 3, 2000, Father took a full-time position with Duluth North Star Ford. On July 5, 2000, Father filed a motion to modify the March order to temporarily reduce his monthly child support, citing a substantial decrease in earnings. A child-support magistrate held an evidentiary hearing on the motion on August 2, 2000, and left the record open until August 11 for additional evidence. Father resigned from North Star Ford on the day of the hearing, but the magistrate was not informed of the resignation. Father took a part-time job with Sears Roebuck in Duluth, working 32 hours per week at $6.00 per hour, plus commission. He told the child-support officer on August 4 that he had resigned from North Star Ford and would start working for Sears on August 14. The child-support magistrate was advised of the job change on August 10, and issued an order on August 21, 2000.
The magistrate found that Father was "voluntarily under-employed and has the ability to work full-time and earn $13.75 per hour based on [his] employment history." In denying Father's request to modify child-support, the magistrate concluded:
There has not been a substantial change in circumstances which renders the existing order unreasonable and unfair. [Father] is voluntarily under-employed and retains the ability to earn an income similar to that he earned at the time of the prior order.
Father appeals from the magistrate's order denying his motion. In his pro se brief, Father challenges the determination that he is underemployed, and he argues that the magistrate should not have considered his employment at Sears and that the magistrate erred in considering his spouse's contribution to monthly expenses.
DECISION
This court will reverse a district court's order regarding the modification of child support if the district court resolved the question in a manner "that is against the logic and the facts on the record." Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quotation omitted). We apply the same abuse-of-discretion standard when we review a child-support magistrate's order. Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App. 2000).
1. Father's voluntary underemployment
Father challenges the denial of his motion for modification. The parent seeking modification bears the burden of demonstrating that (1) a substantial change in circumstances has occurred; and (2) the substantial change has the effect of making the original award unreasonable and unfair. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn.App. 1993), review denied (Minn. June 22, 1993) (citation omitted). Father argues that the evidence does not support the magistrate's finding that he is voluntarily underemployed. A parent is not considered voluntarily underemployed if he or she shows that the 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.
Minn. Stat. § 518.551, subd. 5b(d) (2000). Here, Father does not dispute that he chose to resign from both Haglun Marine and North Star Ford. See Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn.App. 1998) (indicating finding of voluntary underemployment requires evidence of choice in underemployment). Father asserts that his underemployment will lead to an increase in income, but fails to present any evidence to support this claim. Father does not assert (and the evidence does not support) that he is seeking a bona fide career change. His voluntary decision to leave Haglun Marine and North Star Ford, together with the absence of any evidence that his current employment will lead to an increase in income, supports the magistrate's determination that he is voluntarily underemployed. Because Father failed to show that the magistrate's finding of voluntary underemployment is clearly erroneous, Father has not met his burden of demonstrating that a substantial change occurred making the March order unreasonable and unfair.
Where a parent is voluntarily underemployed, his or her child-support obligation is based on a determination of "imputed income," which means "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); see Franzen v. Borders, 521 N.W.2d 626, 629 (Minn.App. 1994) (concluding imputation of income appropriate if obligor voluntarily underemployed). The district court enjoys broad discretion in imputing income. See, e.g., Murphy, 574 N.W.2d at 82 (applying abuse-of-discretion standard of review to ALJ's setting child support on basis of imputed income). Here, the magistrate imputed an income potential of "$13.75 per hour based on [Father's] employment history," after finding a voluntary change in Father's employment status from full to part-time at a lower wage. See Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn.App. 1984) (concluding district court correctly imputed income where support obligor changed employment status). The magistrate did not abuse his discretion in deciding to impute income to Father.
2. Father's employment at Sears
Father argues that the magistrate erred in considering evidence of his employment with Sears because this evidence was not presented at the hearing and is outside the scope of evidence for which the record was left open. Generally, a party must make a timely objection or motion to strike to preserve an evidentiary issue for review. See Minn.R.Evid. 103; see also Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts consider only questions presented to and considered by the district court). Failure to do so precludes review. In re Gonzalez, 456 N.W.2d 724, 727 (Minn.App. 1990). Even if we overlook Father's failure to properly preserve the issue for review, however, his claim is without merit. Father concedes that the magistrate kept the record open until August 11, 2000 pending receipt of additional evidence. Information of Father's employment at Sears was received on August 10 by affidavit of the child-support officer, one day before the magistrate closed the record. The magistrate did not abuse his discretion in receiving this evidence. See State v. Griller, 583 N.W.2d 736, 742 (Minn. 1998) (indicating rulings on admissibility of evidence rest within sound discretion of the district court). Father makes no claim that the information received is inaccurate, and the magistrate did not err in considering Father's employment at Sears.
3. Income of Father's spouse
Father argues that the magistrate erred by considering his spouse's income, citing Minn. Stat. § 518.551, subd. 5(b)(1) (2000) (excluding income earned by obligor's spouse in determining obligor's net income for child-support obligation). Father misunderstands the magistrate's finding. The magistrate considered the income of Father's spouse only with respect to her contribution to his monthly living expenses: "[Father]'s spouse assists in the payment of * * * monthly [living] expenses." The magistrate did not improperly consider spousal income in determining Father's net monthly income for child-support.