In re the Marriage of: Linda L. Bugg Leibold, petitioner, Respondent, vs. David E. Leibold, Appellant.

In re the Marriage of: Linda L. Bugg Leibold, petitioner, Respondent, vs. David E. Leibold, Appellant. A05-372, Court of Appeals Unpublished, January 3, 2006.

This opinion will be unpublished and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

A05-372

 

 

In re the Marriage of:

Linda L. Bugg Leibold,

petitioner,

Respondent,

 

vs.

 

David E. Leibold,

Appellant.

 

 

Filed January 3, 2006

Reversed and remanded
Crippen, Judge*

 

 

Crow Wing County District Court

File No. F7-96-2343

 

 

Linda L. Flykt, 12161 Noon Drive, Dayton, MN 55327 (pro se respondent)

 

Robert A. Manson, 2233 Hamline Avenue North, Suite 609, Roseville, MN 55113 (for appellant)

 

            Considered and decided by Willis, Presiding Judge, Worke, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Because the child support magistrate's findings of fact to support a determination of appellant's income are facially inadequate, and the findings supporting an upward deviation from child support guidelines are incomplete, we reverse and remand for reexamination of the topics stated in this opinion. 

FACTS

            Appellant David Leibold seeks review of the child support magistrate's determination on appellant's petition for a downward modification of his support obligation.  The magistrate, finding that appellant experienced a substantial change in circumstances, modified the 2003 child support order by decreasing the obligation, but then deviated upward from the child support guidelines to establish appellant's new monthly support obligation.  Appellant contends that the magistrate erred when calculating his net monthly income and failed to make adequate findings to support an upward deviation from the child support guidelines.

            The parties divorced in 1996 and have three minor children.  They share legal custody of the children, but respondent Linda Leibold has physical custody.  In 1999, appellant's original $650 support obligation was increased to $900 by agreement of the parties.  In June 2003, respondent moved the district court for a child support increase, and appellant responded with a request for a downward modification, observing that he recently left a high-paying job in Kansas to be closer to his children in Minnesota.  This move reduced appellant's income from $24.39 per hour to $12 per hour, and the district court found that appellant was voluntarily underemployed; imputing to appellant a net monthly income of $4,679, based on his prior earnings, the court fixed his monthly child support obligation at $1,638.

            As a result of the 2003 order, appellant re-established his prior employment.  In 2004, appellant again wanted to stay in Minnesota and secured a $22.34 per hour job with his longtime employer at its regional Minnesota office.  The Minnesota work involves a shorter work season and fewer chances to earn overtime pay.  Appellant has now been able to increase his parenting time.

            In August 2004, appellant moved for a modification in child support, seeking a decrease in his monthly obligation because of a decrease in monthly income.  The magistrate determined that appellant's net monthly income was $3,143.68 and his reasonable and necessary expenses totaled $2,264.23 (a difference of $879.45).  Evidently because appellant's ability to pay has decreased (in 2003 he earned $1,369 more than his reasonable expenses), the magistrate found a change of circumstances that made the prior order unreasonable and unfair. 

            But the magistrate imposed a $1,386 modified obligation, $286 higher than the $1,100 amount calculated under the guidelines ($3,143.68 x 35% = $1,100).  The magistrate found that an upward deviation was appropriate after considering "both parties' incomes from all sources and each parent's percent of household expense responsibility."  The magistrate also noted that appellant "has greater employment income available to him, if he chose to be so employed" and that appellant now has "increased parenting time expenses for more parenting time."  Finally, the magistrate explained that respondent's "total monthly expenses have decreased and her income increased." 

D E C I S I O N

            Because neither party challenges the magistrate's finding that appellant has experienced a substantial change in circumstances requiring modification, the issue is not before this court.  We must focus instead on the means by which the magistrate calculated the new support award.  Appellant questions both the calculation of net income for guidelines purposes and the magistrate's upward deviation.  Because the findings of fact are inadequate, we reverse and remand.

The reviewing court will reverse a child support award only where it finds an abuse of discretion, which occurs when a factfinder resolves an issue in a manner that is against logic and the facts on the record.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 445-46 (Minn. App. 2002) (applying standard to magistrate's decision). 

            A.        Income Tax on Unemployment Compensation

"The child support guidelines require the use of a net income figure[.]"  Darcy v. Darcy, 455 N.W.2d 518, 523 (Minn. App. 1990) (quotation omitted).  Appellant challenges the magistrate's recitation that his income includes an annual sum of $12,452 ($1,037.66/month) for "$471 x 26 weeks unemployment plus union dues," contending that this compensation must be reduced by $207.67 per month to account for state and federal income taxes of $2,492. 

Appellant testified that $471 per week compensation is a gross income figure.  Because unemployment compensation is considered income, Minn. Stat. § 518.54, subd. 6 (2004), it is subject to federal and state income taxes, Minn. Stat. § 268.145, subd. 1(a)(1) (2004).  It follows that the magistrate could not accurately determine appellant's net monthly income for support purposes without taking account for taxes.

Appellant also contends that his unemployment compensation is subject to social security taxes, which would further diminish his net monthly income.  But the federal code imposes these taxes only on "wages" received by an individual "with respect to employment."  United States v. Mayo Found. for Med. Educ. & Research, 282 F. Supp. 2d 997, 999-1000 (D. Minn. 2003) (citing 26 U.S.C. § 3101(a)).  Because "wages" means "all compensation for services," Minn. Stat. § 268.035, subd. 29 (2004), and the applicant for unemployment compensation performs no service to receive it, the magistrate properly calculated net compensation without a social security tax reduction.

            Respondent argues that the magistrate's calculation of unemployment compensation should be accepted because appellant's counsel, when stating a summary of his income, included the $471 per week gross amount.  Because this does not reflect appellant's testimony, it is not determinative. 

            B.        Addition of Union Dues

            Appellant challenges the inclusion of $17 per month in the statement of $3,143.68 net monthly income, evidently for an addition for union dues.  Because we find nothing in the findings or the record to disclose why the addition of union dues occurred or how it was calculated, the issue must be revisited.  See Minn. Stat. § 518.551, subd. 5(b) (2004) ("Net income is defined as total monthly income less … (v) union dues…").  Here again, although the magistrate's finding was invited by a summary provided by appellant's counsel, it does not represent appellant's testimony.

            C.        Vacation Pay

Appellant challenges the inclusion in his annual net wages of $2,682.47 ($223.54 per month) for vacation compensation, asserting that the gross wage figure utilized by the magistrate to calculate net income already included his vacation pay benefits.  Respondent counters that vacation benefits are included in gross income but subtracted before payment of the net amount.  But respondent fails to acknowledge that the magistrate's calculation of income was premised on gross wages, not a net figure.  It is evident that the magistrate may have erred when adding a sum for vacation benefits, but because the determination involves a review of appellant's pay stubs, it is appropriately reconsidered on remand.

            D.        Rental Income

            The upward deviation was determined by the magistrate first by an observation that it took into account both parties' incomes from "all sources."  Appellant observes that his evident resources, using the magistrate's figures, are $879.45 per month (income of $3,143.68 less expenses of $2,264.23).  Because the reference to "all sources" may reflect attention to an additional finding of fact that appellant receives "rental income from his mother and stepfather in the amount of $663.89," "50% of his monthly mortgage payment," appellant contends the deviation finding was flawed.  The record demonstrates that appellant lived with his mother and stepfather on property where title vested 50% with appellant and 50% with his mother and stepfather, that the mortgage payment was not "his," and that the $663.89 payment represented his mother's and stepfather's half of the mortgage obligation.  Should the magistrate continue to explore cause for deviation, this resource cannot be considered.

            E.        Household Expense Comparison

The upward deviation is also based in part on "each parent's percent of household expense responsibility."  The magistrate determined that appellant personally had reasonable and necessary expenses of $2,264.23 but that respondent's reasonable expenses, $5,322, represented a "household of [two] adults, [three] children and [respondent's] mother," and that respondent's "spouse or other adult contributes to household expenses."  The record shows that respondent has remarried and that her spouse earns somewhere between $40,000 and $60,000 per year.  Because the magistrate did not determine either what share of respondent's household expenses were attributable to her spouse or what contribution he made for them, the magistrate has not accomplished the purported effort to examine "each parent's percent of household expense responsibility."

            Inexplicably, the magistrate included in the rationale for deviation that respondent's income had increased while her expenses had decreased.  This is not evidently a consideration suggesting an upward deviation.  And the magistrate (1) found that respondent's current income is $2,493.23, nearly $300 less than she was found to earn in 2003, and (2) failed to make a finding on expenses of respondent that were chargeable to or paid by her spouse.

            F.        Greater Employment Opportunities

            In 2003, the district court imputed income to appellant in circumstances where he accepted a great earnings reduction in order to move to Minnesota.  But appellant's subsequent move involved less sacrifice of income, and the magistrate currently found cause for a downward modification and made no finding that this Minnesota employment represented voluntary underemployment.  Moreover, the magistrate specifically found, implying approval, that appellant's new job permitted frequent contacts with his children and enabled his participation in court hearings.  There being no finding that appellant is voluntarily underemployed, the record does not support giving weight to his "greater employment" opportunity to deviate upwards. 

            G.        Impact of Appellant's Increased Parenting Time

            Finally, the magistrate explained the deviation by stating that, "[i]t also considers the Obligor's increased parenting time expenses for more parenting time." If this reference was considered favorable to appellant in terms of expenses he is suffering, it does not support an upward deviation.  If this finding represents another suggestion that appellant should pay more support because of his choice to be employed in Minnesota, it cannot be reconciled with the magistrate's finding that appellant's reduced income justifies a downward modification and the absence of a finding of appellant's voluntary unemployment. 

            Without attention to the preceding matters through appropriate findings on remand, the ultimate merit in the magistrate's income and deviation findings cannot be determined.  The magistrate's determinations of appellant's income and cause of deviation cannot be reviewed.  Insofar as resolution of the issues is not permitted on the present record, it is permissible that the record be reopened on remand to permit the parties to present additional information.

            Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.