In re the Marriage of:  Tracey Lynn Lanus Janssen, petitioner, Respondent, vs. Caleb Eric Janssen, Appellant.

In re the Marriage of:  Tracey Lynn Lanus Janssen, petitioner, Respondent, vs. Caleb Eric Janssen, Appellant. A04-1509, Court of Appeals Unpublished, July 5, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1509

 

In re the Marriage of:  Tracey Lynn Lanus Janssen, petitioner,
Respondent,
 
vs.
 
Caleb Eric Janssen,
Appellant.

 

Filed July 5, 2005

Reversed and remanded

Minge, Judge

 

Otter Tail County District Court

File No. F4-02-2051

 

 

Richard J. Schieffer, Anderson, Dove, Fretland & Van Valkenburg, P.L.L.P., 5881 Cedar Lake Road, Minneapolis, MN 55416 (for appellant)

 

Dennis W. Hagstrom, Svingen, Hagstrom, Karkela, Cline & Dirks, P.L.L.P., 125 South Mill Street, P.O. Box  697, Fergus Falls, MN 56538-0697 (for respondent)

 

David Hauser, 121 Junius Avenue, P.O. Box 417, Fergus Falls, MN 56538 (for Otter Tail County)

 

            Considered and decided by Lansing, Presiding Judge; Stoneburner, Judge; and Minge, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant challenges the district court's order reinstating appellant's child support responsibilities under a prior divorce decree based on his imputed income as an over-the-road truck driver.  Because the district court abused its discretion by finding that appellant was underemployed, and because the duration of appellant's child support responsibilities is contrary to Minnesota law, we reverse and remand.

FACTS Appellant Caleb Janssen and respondent Tracey Janssen were married in 1990.  They have three minor children.  The parties separated in June of 2002, and appellant voluntarily paid an agreed amount of child support until August of 2002. 

Appellant was hired by Primewood Transportation, a predecessor to Three Rivers Transport, as a local truck driver in 1995.  Occasionally appellant took longer runs.  In 2002, appellant violated a work rule and was demoted to driving a gravel truck.  In September 2002, appellant left his job and family and went to California without providing any contact information to respondent.  Up to the time appellant was demoted to driving a gravel truck, appellant made more than $20 per hour at Three Rivers Transport.  As a gravel truck driver he was paid $12 per hour.  Appellant is currently employed in California as a shuttle truck driver taking trailers between Redding and Sacramento, California and earning $16.50 per hour. 

While appellant was in California, respondent filed a petition for marriage dissolution in Minnesota.  On January 21, 2003, a default marriage dissolution judgment was filed, in which appellant was ordered to pay child support of $1,860.51 per month, including medical and child care costs.  The order required appellant to pay support for each child until the child completed a four-year degree or reached the age of 24.  This child support was based on respondent's testimony regarding appellant's income records at Three Rivers for the period prior to his demotion.  They indicated that his gross monthly income was $4,418 and his net income was $3,593 after making various deductions in accordance with Minn. Stat. § 518.551, subd. 5(b) (2004).  Because appellant had not been paying child support, he had a substantial arrearage.  In September 2003, appellant moved to modify or vacate the default marriage dissolution judgment.  This motion was denied on October 13, 2003.

In December 2003, appellant moved to modify child support; he did not dispute the substantial arrearages.  Based on appellant's income at his California job, the child support magistrate (CSM) granted this motion and decreased appellant's child support to $985 per month, including medical and child care costs.  The CSM also ordered that child support should only continue until the children reach 18, or 20 if still in secondary school. 

Respondent filed a motion for review by the district court, including a request for a new hearing.  The request for a new hearing was granted, and the district court vacated the CSM's order and reinstated the child support obligations under the default marriage dissolution judgment.  The district court found that appellant is voluntarily underemployed.  The court stated that the voluntary underemployment required the court to "impute to him the amount of income he would most likely have received had he remained employed at Three Rivers Transport as an over-the-road trucker, or become employed with some other trucking company in the state of Minnesota at a similar wage."  The district court found that evidence had been presented showing that there were other jobs available in Minnesota as an over-the-road trucker that paid the same as or more than appellant's employment at Three Rivers Transport.  This appeal follows.

D E C I S I O N

 

Initially, we consider the standard by which the district court reviews decisions of the child support magistrate.  The rules provide that the

District court judge shall make an independent review of any findings or other provisions of the underlying decision and order for which specific changes are requested in the motion.  The . . . district court judge shall affirm the order unless the court determines that the findings and order are not supported by the record or the decision is contrary to law. 

 

Minn. R. Gen. Pract. 377.09, subd. 2(b).  Although the language of the rule providing for "independent review" and then for deference to the findings and order creates a conflict on the nature of that review, caselaw has consistently stated that the CSM's decision is subject to de novo review by the district court.  Kilpatrick v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn. App. 2004); Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001); Blonigen v. Blonigen, 621 N.W.2d 276, 280 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).  We review the district court's decision for an abuse of discretion.  Davis631 N.W.2d 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 regarding modification will not be disturbed on appeal unless the decision is against logic and the facts in the record.  Id.

I.

            The first issue is whether the district court clearly erred by finding that appellant is voluntarily underemployed so that income could be imputed to him.

            A child support order may be modified 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)(1) (2004); Putz,645 N.W.2d at 348 (Minn. 2002).  If the application of the child support guidelines results in a calculation of support that is at least 20% and $50 higher or lower than the existing support obligation, it is presumed that a substantial change in circumstances has occurred and the requirements of the current support order are presumed to be unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(b)(1) (2004).  However, if the district court finds that the obligor is voluntarily unemployed or underemployed, then the district court must calculate the support obligation based on the obligor's imputed income.  Minn. Stat § 518.551, subd. 5b (d) (2004).  The court can also consider whether an obligor's unemployment or underemployment is in bad faith toward his or her support obligations.  Putz, 645 N.W.2d at 351.  It is also required that there must be some voluntary choice to become employed or underemployed.  Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994); see Lee v. Lee, 459 N.W.2d 365, 370 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990).  In Lee, the court held that where an employee was forced to resign after taking extended lunch breaks, this was not voluntary termination because there was no evidence that the willful misconduct "was an attempt to induce termination and thereby avoid a child support obligation."  459 N.W.2d at 370. 

Appellant argues that he did not voluntarily quit his job as a tractor-trailer driver and choose to be demoted to driving a gravel truck.  However, appellant did violate a well-established work rule by leaving a trailer he was hauling because he did not want to stay in Minneapolis over the weekend until it was unloaded.  As a result of this incident, appellant was demoted to a $12 per hour gravel truck driver.  He only held this position for a few days.  He left for California without informing his employer he was quitting, leaving a forwarding address, or notifying respondent of where he could be reached.  He knew respondent was taking steps to reinstate formal child support collections.  Appellant's conduct is more culpable than the child support obligor in Lee.  Id. 

Based on the record before us, the district court did not abuse its discretion in concluding that appellant's action of leaving a trailer assumed the risk or at least was accompanied by the knowledge that he might lose his job.  Even if his actions do not show bad faith toward child support obligations, at least they indicate appellant's disregard for the effect his actions would have on his ability to provide financial support for his children.  Thus, it was reasonable for the district court to find that appellant voluntarily ended his employment at Three Rivers Transport. 

            Even though appellant acted in disregard of his child support obligation in September 2002, underemployment is a separate issue.  Appellant argues that he is not underemployed because he historically worked as a local truck driver and he is currently working as a local truck driver in California.  Appellant began working as a local truck driver in 1995.  He was hired by Three Rivers Transport to work as a regional/local driver.  Appellant usually returned home the same evening or the next day.  By contrast, over-the-road truckers drive extended cross-country trips of longer duration.   Respondent, appellant, and appellant's supervisor all testified that before appellant was demoted to gravel truck driver, he drove mostly regional trips for Three Rivers Transport, but he would sometimes go on overnight long-haul trips.  Even respondent testified that appellant was a local trucker because he was taking mostly short trips or overnights. 

Currently appellant works as a shuttle driver taking trailers between Redding and Sacramento, California.  Appellant started at $16 per hour, with a raise to $16.50 per hour after 60 days.  Prior to his current California job, appellant worked at two other California trucking firms as a local driver at slightly lower hourly pay rates.  The district court found that when appellant was at Three Rivers Transport, his duties involved both local trucking and long distance interstate hauling and the job he left in Minnesota was as an over-the-road trucker.  The district court compared appellant's current salary of $16.50 per hour as a trucker with his prior earnings at over $20 per hour and wages at available jobs for over-the-road truckers and found appellant to be underemployed.  However, this income for driving an extraordinary number of hours in an over-the-road capacity is not comparable.  Although he took some long-haul trips at the time he left Three Rivers, the clear evidence is that appellant's primary job at Three Rivers Transport was as a local/regional trucker.  Appellant is currently working full-time as a local driver.  The district court's conclusion that appellant was a long-haul, over-the-road trucker and his imputation of income to appellant based on available income for over-the-road truckers was an abuse of discretion.   There is no evidence that appellant is underemployed at his current job in order to avoid paying child support.  We reverse the district court on this issue and remand to the district court to calculate appellant's child support obligations based on his current income.   

II.

            The next issue is whether reinstatement of the requirement that appellant pay child support until each child completes a four-year degree or until the age 24 is reversible error.       

In the chapter on marriage dissolution in the Minnesota Statutes, a child is defined as "an individual under 18 years of age, an individual under age 20 who is still attending secondary school, or an individual who, by reason of physical or mental condition, is incapable of self-support."  Minn. Stat. § 518.54, subd. 2 (2004).  Where there is no claim or evidence that a child will be incapable of self-support due to a physical or mental condition, a court does not have the authority to order child support past age 18, or age 20 if still attending secondary school.  Kiesow v. Kiesow, 270 Minn. 374, 385, 133 N.W.2d 652, 660 (1965); see Kleinhuizen v. Kleinhuizen, 354 N.W.2d 588, 589-90 (Minn. App. 1984) (finding support obligation ended when child reached 18 because there was no evidence that the child had any physical or mental condition making her unable to support herself). 

            There is no claim that the parties' children have a physical or mental condition that would render them incapable of self-support.  Therefore, the law requires that the child support obligation only extend until the children reach 18 years of age, or 20 if still attending secondary school.  The district court's reinstatement of the requirement that appellant pay child support until the child completes a four-year degree or until the age of 24 is an error of law. 

Respondent argues that appellant did not raise this issue in the district court.  This court on appeal generally only considers those issues presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  But this court has the ability to address issues as the interest of justice may require.  Minn. R. Civ. App. P.  103.04. 

            The district court is to review any provisions of the underlying order in which specific changes are requested in the motion.  Minn. R. Gen. Pract. 377.09, subd. 2(b).  In this case the CSM's order stated that child support payments would continue until the covered children were 18, or 20 if still in secondary school.  Respondent in her motion for review specifically requested that the district court eliminate the paragraph in which the CSM changed the duration of the child support.  Therefore this issue was properly before the district court and the district court was required to review it.  In addition, because the current order clearly violates the law, it is in the interest of justice to correct this error.

            Reversed and remanded.