Bradley R. Smith, petitioner, Appellant, vs. Rebecca J. Smith, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-00-781

In Re the Marriage of:

Bradley R. Smith, petitioner,

Appellant,

vs.

Rebecca J. Smith,

Respondent.

Filed September 19, 2000

Affirmed; Motion Denied

Kalitowski, Judge

Itasca County District Court

File No. FX962078

Bradley Robert Smith, 615 Sugar Bay Road, Cohasset, MN 55721 (pro se appellant)

John J. Muhar, Itasca County Attorney, Heidi Chandler, Assistant County Attorney, Itasca County Courthouse, 123 Northeast Fourth Street, Grand Rapids, MN 55744; and

Ellen E. Tholen, 525 East Itasca Street, Suite 103, Grand Rapids, MN 55744 (for respondent)

            Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Bradley R. Smith challenges the child support magistrate's order denying his motion for modification of his child support obligation, arguing (1) the evidence does not support the magistrate's findings concerning appellant's employment status; and (2) it was an abuse of discretion for the magistrate to conclude that appellant failed to show a substantial change in circumstances justifying modification.  We affirm.

D E C I S I O N

I.

            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).  Appellant contends the magistrate erred by making inaccurate or inconsistent factual findings concerning appellant's job status, and, as a consequence, improperly deemed appellant to be employed and earning income on the date of the hearing.  We disagree.

Contrary to appellant's claim, we discern no inaccuracy of any significance in the magistrate's finding that appellant "voluntarily terminated his employment the date of the hearing."  At the hearing on December 15, 1999, appellant provided the magistrate with a copy of his letter of resignation indicating a termination date of December 15, but testified that he had actually ceased working several days earlier.  Even if the magistrate's finding suggests that appellant did not terminate his employment until December 15, the magistrate made an additional finding that appellant was "presently unemployed."  Thus, the magistrate recognized that appellant was not employed as of the hearing date.  The precise date of appellant's termination was otherwise immaterial.

II.

Modification of child support is within the district court's discretion and will not be reversed absent an abuse of discretion.  Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974); Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993).

A district court may modify child support if the moving party shows a substantial change in circumstances that makes the existing support award unreasonable and unfair.   Minn. Stat. § 518.64, subd. 2(a) (Supp. 1999).  A change in circumstances is presumed, and a support order is rebuttably presumed unreasonable and unfair if application of the support guidelines to an obligor's present income results in a $50 per month and 20% difference in child support.  Id., subd. 2(b)(1) (Supp. 1999).  If the court finds that a support obligor is voluntarily underemployed, however, the child support obligation must be based on a determination of imputed income.  Minn. Stat.  § 518.551, subd. 5b(d) (Supp. 1999).  See, e.g., Resch v. Resch, 381 N.W.2d 460, 462 (Minn. App. 1986) (a district court may direct child support payments commensurate with a wage the parent "could earn if he sought employment in an occupation for which he is trained and has the present ability to perform"). 

            Appellant argues that because he was unemployed and earning no income on the date of the hearing, the magistrate erred by failing to apply the rebuttable presumption of a change in circumstances under Minn. Stat. § 518.64, subd. 2(b)(1).  We disagree. 

The magistrate denied appellant's motion for modification after concluding that appellant remains voluntarily underemployed and has failed to establish a relevant change in circumstances since the entry of the previous support orders.  In all three of the previous support orders in this case, an administrative law judge (now child support magistrate) concluded that appellant has remained voluntarily underemployed and subject to imputed income as a result of terminating his employment as a medical clinic administrator in 1993 and refusing to seek more profitable employment for which he is qualified.   Appellant's decrease in income due to his termination of his employment as a paint store clerk does not constitute a change in circumstances for purposes of modifying the existing child support order because his child-support obligation was not based on that income.  Thus, even if the magistrate erred by failing to address the rebuttable presumption under Minn. Stat. § 518.64, subd. 2(b)(1), any error was harmless because of the magistrate's ultimate conclusion that appellant continued to be voluntarily underemployed.  See Minn. R. Civ. P. 61 (noting that harmless error is disregarded).

Appellant also challenges the magistrate's finding that there has been no change in circumstance "other than appellant's voluntary termination."  He argues that the magistrate erred by dismissing as immaterial the very thing that constitutes a "change in circumstances," namely, appellant's voluntary termination.  We disagree.  Even if appellant were not already paying child support based on a previous imputation of income, his voluntary termination of employment, standing alone, does not qualify as a "change in circumstance" sufficient to justify modification.  To the contrary, when an obligor voluntarily terminates employment, the court is required to impute income unless the obligor can show that unemployment is temporary and will lead to increased income or represents a bona fide career change.  Minn. Stat. § 518.551, subd. 5b(d).  Because appellant never attempted to establish either condition, it was not an abuse of discretion for the magistrate to find that appellant remains voluntarily underemployed and subject to imputed income, consistent with the previous support orders.  

Appellant also claims that he has experienced a change in circumstances because he wishes to cease commuting to the Twin Cities, and his child-support obligation should be adjusted to reflect his decreased earning ability in Itasca County.  Again, we disagree.  Appellant mistakenly relies upon Kuchinski v. Kuchinski, 551 N.W.2d 727 (Minn. App. 1996).  In that case, an obligor moved for modification after voluntarily terminating employment to move out of state for reasons unrelated to her career, and the district court imputed income to her based on her earning history in her former community.  Id. at 728-29.  On appeal, this court agreed that the imputation of income was appropriate, but remanded for a calculation of income based on the obligor's decreased earning ability in her new community.  Id. at 729.  Appellant argues that under Kuchinski, his imputed income should be calculated based on his earning ability in Itasca County, rather than in the Twin Cities, because he should not be forced to continue to commute to the Twin Cities.  But unlike Kuchinski, appellant has not recently moved to a new location; to the contrary, he has maintained his primary residence in Itasca County since shortly after the parties' dissolution.  

Moreover, appellant made this argument as part of a prior motion for modification in February 1999.  In that proceeding, appellant asserted that continued imputation of income was improper because it "constitutes an expectation or admonishment to find new employment and relocate outside of the community that has been [appellant's] residence for 20 years."  The administrative law judge disagreed and upheld the continued imputation of income based on appellant's earning ability in the Twin Cities labor market.  Appellant did not appeal this decision, and thus is precluded from raising the issue on appeal in a subsequent proceeding.  See Loo v. Loo, 520 N.W.2d 740, 743-44 (Minn. 1994) (holding that an adjudication on the merits of an issue is conclusive and cannot be relitigated); Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn. App. 1991) ("A question of changed circumstances, once litigated, may not be retried.") (citation omitted).

We conclude that it was not an abuse of discretion for the magistrate to find that no change in circumstances has occurred since the most recent support order in April 1999 that would justify modification of appellant's child-support obligation. 

Finally, respondent has requested an award of her attorney fees on appeal on the grounds that appellant's appeal is frivolous.  This court has discretion to award attorney fees where an appeal is frivolous or taken in bad faith.  Frederiksen v. Frederiksen, 368 N.W.2d 769, 779 (Minn. App. 1985); see Minn. Stat. § 518.14 (1998).  Although this appeal has scant merit, we cannot say it was frivolous or taken in bad faith.  Accordingly, we deny respondent's motion for attorney fees.

Affirmed; motion denied.