State of Minnesota, County of Blue Earth, et al., Respondents, vs. Richard Arthur Weinzettel, Sr., Appellant.

State of Minnesota, County of Blue Earth, et al., Respondents, vs. Richard Arthur Weinzettel, Sr., Appellant. A04-554, Court of Appeals Unpublished, February 1, 2005.

This opinion will be unpublished and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

A04-554

 

State of Minnesota, County of Blue Earth, et al.,
Respondents,
 
vs.
 
Richard Arthur Weinzettel, Sr.,
Appellant.

 

Filed February 1, 2005

Affirmed

Wright, Judge

 

Blue Earth County District Court

File No. F3-94-50022

 

 

Gregory J. Rebeau, 411 North Lexington Parkway, Suite G, St. Paul, MN 55104 (for appellant)

 

Ross Arneson, Blue Earth County Attorney, Mark A. Lindahl, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002 (for respondents)

 

 

            Considered and decided by Kalitowski, Presiding Judge; Lansing, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court's denial of his motion for modification of child support.  Appellant contends that, because he is disabled and cannot obtain full-time employment, the district court erred in concluding that he was voluntarily underemployed.  We affirm.

FACTS

            Appellant Richard Weinzettel is the father of a minor son who is not currently in the custody of either parent.  Weinzettel was adjudged responsible for child support and medical assistance in 1994.  Following a motion by Blue Earth County to establish child support, a hearing was held before a child support magistrate (CSM).  At a hearing on December 11, 2002, Weinzettel testified that he was employed as a handyman and compensated exclusively in cash.  He acknowledged that he did not pay any income tax on his earnings.  In response to questions regarding his ability to find work as a handyman or laborer, he testified, "Sometimes it depends on how I feel."  He explained further that he was "pretty well shot" after a hard day of work.  But he did not claim to be disabled or provide any medical evidence to support such a claim.  Following the hearing, the CSM ordered Weinzettel to pay monthly child support of $257 and monthly medical assistance of $50.

In January 2003, Weinzettel moved the district court for review of the child-support order and findings by the CSM as to Weinzettel's income and earning capacity.  In support of the motion, Weinzettel alleged that a disability made him incapable of holding full-time employment.  Characterizing his disability as "a degenerative back condition and photoconvulsive seizures," Weinzettel stated that he would provide the district court medical records establishing his condition.  But Weinzettel failed to do so.  Finding no additional credible evidence of Weinzettel's inability to work full time and no change in circumstances from those presented at the December 2002 hearing, the district court denied the motion for review in its February 20, 2003 order and declined to modify the amount of child support ordered by the CSM.

In November 2003, Weinzettel filed a motion for modification of child support under Minn. Stat. § 518.64, subd. 2 (2002).  In an affidavit supporting the motion, Weinzettel maintained that his medical conditions rendered him incapable of working full time.  Weinzettel also submitted a physician's medical opinion that he suffers from "multiple health issues" and "should be considered medically unemployable in any long-term sense."  At the hearing on the motion, Weinzettel's attorney stated that Weinzettel's "condition has always been like this," and Weinzettel maintained that he has been suffering from the disabling symptoms for 30 years.  In its December 10, 2003 order denying Weinzettel's motion, the CSM found that the evidence did not establish a medical condition "that did not already exist at the time of the prior order."  Accordingly, the CSM concluded that there were no changed circumstances warranting modification of Weinzettel's child-support obligation.

Weinzettel moved the district court for review of the CSM's order.  The district court denied the motion, finding that the CSM's decision is supported by the record and not contrary to law.  This appeal followed.       

D E C I S I O N

The CSM's decision is subject to de novo review by the district court.  Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001).  We review the district court's decision confirming the CSM's order for an abuse of discretion.  Id. at 826.  The district court has broad discretion in deciding whether to modify child support.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  A decision denying modification will not be disturbed on appeal unless the decision is against logic and the facts in the record.  Id.

Weinzettel argues for reversal, contending that the denial of his motion to modify his child-support obligation is against logic and the facts in the record.  Minnesota law permits the modification of a child-support order under the following changed circumstances: 

(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party or the child or children that are the subject of these proceedings; (3) receipt of assistance under the AFDC program formerly codified under sections 256.72 to 256.87 or 256B.01 to 256B.40, or chapter 256J or 256K; (4) a change in the cost of living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair; (5) extraordinary medical expenses of the child not provided for under section 518.171; or (6) the addition of work-related or education-related child care expenses of the obligee or a substantial increase or decrease in existing work-related or education-related child care expenses.

 

Minn. Stat. § 518.64, subd. 2(a) (2002).  To warrant a modification of his child-support obligation, Weinzettel must establish "clear proof of facts showing a substantial change of circumstances from those existing at the time" of the original determination.  Hillestad v. Hillestad, 405 N.W.2d 436, 438-39 (Minn. App. 1987) (emphasis in text) (quotation omitted). 

            Weinzettel failed to demonstrate that his medical condition is the result of a change in circumstances as required by section 518.64, subdivision 2(a).  Rather, he seeks a modification by attempting to clarify for the district court the nature of a medical condition that already existed when the district court first calculated his child-support obligation.  When responding to the county's 2002 motion to establish child support, Weinzettel failed to establish that he suffers from a disabling medical condition.  Indeed, the only evidence presented at the 2002 hearing that can be broadly construed as pertaining to Weinzettel's physical condition was comparable to a "general allegation of ‘poor health' . . . unsupported by any documentation," which we rejected in Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986).  In light of Weinzettel's failure to establish a substantial change in circumstances warranting modification of his child-support obligation, the district court's denial of Weinzettel's motion was not an abuse of discretion.

            Even if the district court properly could consider Weinzettel's alleged ongoing incapacity as a factor in a child-support-modification proceeding, the district court's assessment of the weight and credibility of the evidence presented compels a rejection of Weinzettel's claim that he was unable to undertake full-time employment.  During the December 2003 hearing, the CSM considered Weinzettel's description of the work he performed and his recovery from such work, along with the medical report prepared by Weinzettel's doctor.  Based on this evidence, the CSM found that Weinzettel was "an intelligent person who could obtain employment that is less strenuous than moving furniture or sawing wood" and that, notwithstanding limitations on his earning capacity, Weinzettel could earn an income equivalent to full-time employment at $7.72 per hour.  In its de novo review, the district court determined that the CSM's decision is supported by the record.  In light of the deference afforded the district court's decision to deny modification of child support, we cannot conclude on this record that the district court abused its discretion by declining to apply a presumption against voluntary underemployment based on Weinzettel's claims of physical incapacity.  See Minn. Stat. § 518.551, subd. 5b(e) (2002).

            Finally, Weinzettel argues that the district court's decision will force him to collect disability benefits, which renders the decision against public policy.  Should Weinzettel qualify again for social security assistance, such benefits are not considered income for child-support purposes.  See Minn. Stat. § 518.54, subd. 6 (2002).  We are, nevertheless, mindful that "the state has a compelling interest in assuring parents provide primary support for their children."  Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn. App. 1998).  "[T]he obligation of parents to support their children derives from the legal and natural duty as members of society to take care of them until they are old enough to take care of themselves."  Mund v. Mund,252 Minn. 442, 445, 90 N.W.2d 309, 312 (1958).  Absent Weinzettel's demonstration that he is unable to provide child support, he is not relieved of his duty to do so.

Because Weinzettel failed to establish a substantial change in circumstances warranting modification of his child-support obligation, the district court did not abuse its discretion in denying Weinzettel's motion.

Affirmed.