In re the Marriage of: Karen M. Barrett, petitioner, Respondent, vs. Daniel T. Barrett, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

  STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-1806

 

 

In re the Marriage of:
Karen M. Barrett, petitioner,
Respondent,
 
vs.
 
Daniel T. Barrett,
Appellant.

 

Filed July 15, 2003 Affirmed

Peterson, Judge

 

Anoka County District Court

File No. F2979786

 

Robert J. Bruno, Robert J. Bruno, Ltd., 1601 East Highway 13, Suite 107, Burnsville, MN  55337 (for respondent)

 

Michael C. Hager, 529 South Seventh Street, Suite 420, Minneapolis, MN  55415 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this child-support dispute, appellant-father Daniel T. Barrett argues that the district court (1) misapplied Minn. Stat. § 518.551, subd. 5b(d) (2002), when it imputed income to him because he lost his job and is unable to obtain comparable employment due to medical reasons; (2) misapplied Minn. Stat. § 518.64, subd. 1(d)(2) (2002), when it refused to forgive his arrears and overstated his child-care obligation by basing his obligation on his imputed, rather than actual, income; (3) abused its discretion by ordering his incarceration for failing to make the income he had previously made at the job he lost for medical reasons; and (4) failed to make findings supporting its award of conduct-based attorney fees to respondent-mother.  We affirm.

FACTS

            The parties were married in 1992 and are the parents of two minor children.  Their marriage was dissolved on January 11, 1999.  The dissolution judgment awarded sole physical custody of the children to respondent-mother Karen M. Barrett, subject to reasonable parenting time with appellant-father Daniel T. Barrett.

            At the time of dissolution, mother was employed by a credit union, earning a gross annual income of $22,834.50 and a net monthly income of $1,543.66.  Her reasonable monthly expenses for herself and the two children totaled $3,021, including $685 for employment-related daycare and babysitting expenses.

            At the time of dissolution, father was employed by Multi-Tech Systems, earning a gross annual income of $27,040 and a net monthly income of $1,775.90.  His reasonable monthly expenses totaled $1,472.  Pursuant to the child-support guidelines, the district court ordered father to pay 30% of his net income for child support, which equaled $532.77 per month.

            Following entry of the dissolution judgment, father made posttrial motions seeking removal of the trial judge, a new custody evaluation, physical custody of the children, and other relief.  The district court denied the motions.  Father's appeals were dismissed by this court, the Minnesota Supreme Court, and the United States Supreme Court.

            In May 2000, father began a lawsuit in federal district court seeking damages on numerous grounds against the United States, the United States Department of Labor, the State of Minnesota, Anoka County, the City of Fridley, and mother and her attorney.  The district court dismissed the action and awarded attorney fees to mother and her attorney.  The Eighth Circuit Court of Appeals affirmed the district court, and the Supreme Court denied certiorari.

            In July 2000, Multi-Tech discharged father from employment for failing to follow company policies and procedures for documenting customer inquiries and complaints.  Effective May 1, 2001, father's child-support obligation increased to $575 per month as a result of a cost-of-living adjustment.  In June 2001, father filed a motion to modify child support.  Mother filed a motion to have father found in constructive civil contempt for failing to pay child support after becoming unemployed.

At the hearing on those motions, father testified that he suffered from severe stress-related headaches that interfered with his job performance while employed by Multi-Tech and still made it difficult for him to concentrate.  Father presented medical records showing that he had been treated for TMJ and a sinus condition.  Father testified that since January 1999, he had spent 400 to 800 hours studying the law so that he could pursue his legal claims, which made it difficult to keep his job skills in the computer field current.  Father testified that after losing his job at Multi-Tech, he helped his brother coach a basketball team, occasionally worked at a movie theater selling popcorn, and did yardwork for family members to pay them back for money they had loaned him during the previous year.  Father testified that he participated in two weekend golf outings and one bridge tournament.

By amended order filed September 6, 2001, the district court entered judgments for mother in the amount of  $6,124.78 and for Anoka County in the amount of $1,350.51 for child-support arrearages accruing from July 18, 2000 through July 31, 2001.  The court temporarily reduced child support to $326.10 per month.  The court stayed the ability to levy on the arrearages judgments and deferred its decision on father's motion to modify child support for one year, pending a review hearing scheduled for September 11, 2002.  The court found father to be in constructive civil contempt for willful failure to pay child support and ordered that he be incarcerated for 180 days in the workhouse.  The court stayed execution of the incarceration for one year provided that father pay $326.10 per month for child support, participate in the Minnesota Parents' Fair Share Program, comply with income- and address-reporting requirements, obtain a Microsoft networking or other equivalent certificate, and meet the following condition:

            XII.  [Father] is required to submit five (5) provable, good-faith applications for employment per week to the Anoka County Office of Child Support.  [Father] shall apply for jobs with compensation equal or slightly above his job at Multi-Tech and for lower paying jobs.  This requirement lasts until [father] obtains employment.  There is a continued expectation that [father] find the best employment available.

 

            Father failed to comply with the contempt conditions, including the requirement that he pay child support.  At the September 11, 2002, hearing, his attorney offered several excuses for father's noncompliance:  father understood that the income-reporting requirements only applied to paychecks received within two weeks after he received the September 6, 2001, amended order; health problems prevented him from always participating in the Parent's Fair Share Program and then he was discharged from the program in December 2001; and health problems and lack of financial means prevented him from obtaining a networking certificate.  Father admitted that he failed to notify the child-support office of his address changes, although he did notify the district court clerk.

            On August 13, 2001, father obtained part-time employment with Target earning seven dollars per hour.  Wage records maintained by the Minnesota Department of Economic Security show that during the fourth quarter of 2001, father worked an average of 31.7 hours per week.  At the time of the review hearing, father was earning $7.85 per hour and had worked 17 hours during the previous week.  Father testified that he continued to suffer from headaches, indicating that the reduction in his work hours resulted from the headaches.  Father submitted a medical opinion by Dr. Markus Gapany diagnosing father as suffering from chronic sinus headaches that caused difficulty in concentrating and focusing and were sometimes incapacitating.  Gapany opined that father could perform limited employment depending on the severity of his symptoms.

            At the review hearing, father represented himself on the modification issue.  The district court refused to allow father to present argument on issues that had been addressed in his motions and lawsuits following entry of the dissolution judgment.  The district court did give father the opportunity to present evidence on his motion to reduce child support.  Father argued that he should not be found in contempt but did not present evidence on modification.  The district court found that father willfully failed to comply with the purge conditions of the September 6, 2001, amended order and executed the 180-day incarceration for contempt.

The district court granted father's motion as to the allocation of work-related child-care costs but otherwise denied father's motion to reduce child support.  The district court found:

            27.  [Father] did not make a good faith effort to maintain his employment at Multi-Tech Systems, Inc. and as the court previously found in its order dated August 17, 2001, as amended by the order dated September 6, 2001, [father's] conduct in getting terminated from his job at Multi-Tech showed a willful and reckless disregard for his economic well-being affecting his ability to pay child support and his children's well being.

 

            * * * *

 

            29.  At the September 11, 2002, hearing, [father] testified that he intends to take a three month "leave of absence" from his part time employment at Target because headaches prevent him from working.  [Father] has not provided any credible evidence that he is in any way physically or mentally disabled.  [Father] has the ability to work full time.

 

            30.  [Father's] allegations that he has sought full time employment during the last year are not credible given his failure to provide a copy of a single application for employment during the entire year in spite of being ordered to provide copies of applications for employment to the Anoka County Office of Child Support each week.

 

The district court determined that father was voluntarily underemployed or unemployed and based his child-support obligation on an imputed net monthly income of $1,775. The district court awarded mother $2,703.50 for conduct-based attorney fees.

D E C I S I O N             Mother argues that father's appeal on the contempt and attorney-fee issues should be dismissed because the notice of appeal states that the appeal is from the September 17, 2002, order for judgment rather than the September 18, 2002, judgment.  Notices of appeal are to be liberally construed in favor of their sufficiency and are not insufficient due to defects that could not have been misleading.  Kelly v. Kelly, 371 N.W.2d 193, 195-96 (Minn. 1985).  We, therefore, decline to dismiss this appeal. I.

            The district court has discretion to modify a child-support order, and its decision will be upheld unless the court reaches a decision that is against logic and the facts in the record.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  Under Minn. Stat. § 518.64, subd. 2 (2002), a child-support order may be modified upon a showing of a substantial change in a party's earnings or a substantial change in a party's or the children's needs, either of which makes the existing order unreasonable and unfair.  A party seeking modification of a child-support order has the burden of proving a substantial change in circumstances.  Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996).

            Father argues that his discharge from Multi-Tech and his inability to find similar work were due to his health condition and, therefore, the district court erred in denying his motion to reduce child support.  The record contains evidence that father's medical condition did not interfere with his ability to perform activities other than employment and did not prevent him from pursuing extensive, groundless legal claims.  The district court specifically found that the record did not contain credible evidence supporting father's disability claim. This court defers to the district court's credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

            Father relies on Lee v. Lee, 459 N.W.2d 365 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990), and Goff v. Goff, 388 N.W.2d 28 (Minn. App. 1986), to argue that the district court erred in imputing income to him at the level he earned at Multi-Tech.  "If the court finds that a parent is voluntarily unemployed or underemployed * * *, support shall be calculated based on a determination of imputed income."  Minn. Stat. § 518.551, subd. 5b(d) (2002).  Imputed income 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.

 

Id.

The Lee court held that the district court erred in equating employment misconduct (taking long lunch hours) with voluntary termination when "there [was] no evidence that the misconduct was an attempt to induce termination and thereby avoid a child-support obligation."  Lee, 459 N.W.2d at 370.  When Lee and Goff were decided,

courts set child support based on an obligor's earning capacity if the obligor decreased or eliminated his or her income in a bad-faith attempt to avoid paying support.

 

Franzen v. Borders, 521 N.W.2d 626, 628 (Minn. App. 1994).  Courts are no longer required to find bad faith before considering an obligor's earning capacity.  Walker v. Walker, 553 N.W.2d 90, 95 n.1 (Minn. App. 1996).  Under current law, awarding child support based on imputed income is appropriate if the obligor chose to be unemployed or underemployed.  Franzen, 521 N.W.2d at 629.

            In Goff, the issue was whether the obligor's unemployment was willful for purposes of forgiving arrearages under Minn. Stat. § 518.64, subd. 2 (Supp. 1985).  388 N.W.2d at 31.  This court affirmed the district court's determination that the obligor's failure to pay support was willful based on a finding that the obligor did not make a good-faith effort to retain his job or find alternate employment.  Id.  Voluntary is synonymous with willful.  Webster's New World Dictionary 1592-93 (2d ed. 1984) (definition of voluntary).

            Here, in the memorandum accompanying its August 17, 2001, order, which the district court expressly refers to in its September 17, 2002, order, the district court found:

            While the evidence seems to indicate that [father] was technically terminated from his employment at Multi-Tech, this Court finds that [father's] excuses for his termination are wholly unacceptable and finds [father's] credibility to be severely deficient.  While this Court cannot conclusively find that [father] purposely got himself terminated from Multi-Tech in order to avoid paying child support, his actions and explanations prove he acted with willful disregard for his economic well-being, and therefore his children's well-being.  This reckless behavior indicates that [father] did not make a good faith effort to keep his employment and amounts to voluntary unemployment.

 

In its September 2002 order, the district court expressly found incredible father's claims that he sought full-time employment during the year preceding the review hearing

given his failure to provide a copy of a single application for employment during the entire year in spite of being ordered to provide copies of applications for employment to the Anoka County Office of Child Support each week.

 

The evidence supports the district court's findings, and the findings support its determination that father was voluntarily unemployed.

            Father objects to the district court's failure to make findings on the availability of jobs in the Anoka County area paying $13 per hour for a person with father's skills and education.  But father's termination from employment was equivalent to a voluntary termination, and he had the burden of proving a substantial change in circumstances warranting modification.  Gorz, 552 N.W.2d at 569.  Having failed to produce any evidence documenting his job-search efforts, father cannot now complain about the absence of findings on the availability of jobs.  Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985).

            The district court did not err in determining that father was voluntarily unemployed and imputing income to him at the level he earned at Multi-Tech.  Accordingly, the court did not err in declining to forgive support arrearages or in allocating work-related child-care expenses.

II.

            This court will reverse a district court's contempt order only if the underlying findings are clearly erroneous or if the court abused its discretion by invoking its contempt power.  Mower County Human Servs. ex rel. Swancutt  v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996).  Generally, a civil contempt proceeding has two stages: (1) the district court holds a hearing to determine whether conditional contempt is warranted and, if warranted, sets conditions to allow the contemnor to purge the contempt; and (2) before confinement, the contemnor is entitled to a second hearing on issues of performance or excusable non-performance of the purging conditions.  Mahady v. Mahady, 448 N.W.2d 888, 891 (Minn. App. 1989).  At both stages, the contemnor's financial condition is an issue, and the court may order confinement at the second hearing only if it determines that the contemnor currently has the ability to purge.  Id.

            It is undisputed that father failed to comply with the purge conditions.  Father offered excuses for his noncompliance.  The district court found that father lacked credibility and that the noncompliance was willful.  This court defers to the district court's credibility determinations.  Vangsness, 607 N.W.2d at 472.

            Father argues that he was unable to comply with the purge conditions, and, therefore, the contempt order violated his constitutional rights.  In a civil contempt proceeding, "the burden of proving inability" is on the obligor.  Mahady, 448 N.W.2d at 890 (citing Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968)).

[I]n cases involving an obligor's ability to comply with a support order for contempt purposes, there is no defense if the party directed to pay has not made a reasonable effort by means of his own selection to conform to an order well within his inherent but unexercised capacities.

 

Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (quotation and citation omitted).  The test applied to determine ability to pay is similar to that applied when an obligor "seeks modification of a decree on the ground that a career change has resulted in decreased earnings."  Id. (quotation omitted).  The district court did not err in finding that father willfully failed to comply with contempt conditions.

III.

            A court, "in its discretion," may award "additional fees, costs and disbursements against a party who unreasonably contributes to the length or expense of the proceeding."  Minn. Stat. § 518.14, subd. 1 (2002).  Such an award of conduct-based attorney fees

may be based on the impact a party's behavior * * * had on the costs of the litigation regardless of the relative financial resources of the parties.

 

Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (affirming award of attorney fees where appellant requested five separate continuances and engaged in improper discovery tactics) (citation omitted).  See Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996) (affirming award of attorney fees where respondent took a noncooperative and obstinate position, denied responsibility for loans, and caused appellant to incur additional fees by breaking into homestead).  The district court's decision regarding whether to award conduct-based attorney fees will not be disturbed on appeal absent an abuse of discretion.  Id.

            It was father's willful failure to comply with the purge conditions that resulted in mother initiating the contempt proceeding.  The extensive, groundless litigation engaged in by father following entry of the dissolution judgment is evidence supporting the district court's finding that father's conduct unreasonably contributed to the length of the current proceeding.  The district court did not abuse its discretion in awarding conduct-based attorney fees.  Father cites his health problems as a ground for overturning the fee award, but as already addressed, the district court found father's disability claim was unsubstantiated by credible evidence.

            Affirmed.