In the Matter of: Larry Glenn Schultz.

Annotate this Case
This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).




Laurie Lee Malzac,



Stephen Craig Wick,


 Filed January 20, 1998


 Short, Judge


Carlton County District Court

File No. F697487

Marvin E. Ketola, Carlton County Attorney, James M. Ross, Jr., Assistant County Attorney, 202 Courthouse, P.O. Box 300, Carlton, MN 55718 (for respondent)

Thomas R. Thibodeau, Sally L. Tarnowski, Johnson, Killen, Thibodeau & Seiler, P.A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for appellant)

Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Short, Judge.

 U N P U B L I S H E D O P I N I O N

 SHORT, Judge

On appeal from an order establishing an amount of continuing child support and reimbursement of public assistance pursuant to Minn. Stat. §§ 518.551, subd. 5, 256.87, subd. 1 (1996), Stephen Craig Wick argues the evidence and findings fail to support the administrative law judge's decision to impute income, and in the alternative, her calculation of income. We affirm.

  D E C I S I O N

The traditional standard for reviewing a trial court's decision applies to the decision of an administrative law judge (ALJ) in dissolution cases. Minn. Stat. § 518.5511, subd. 4(h) (1996); Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990). A trial court has broad discretion in setting child support, and we will not reverse an exercise of that discretion absent a "clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Generally, the obligation to pay child support is premised on the obligor's ability to pay. Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991). However, a court may impute income for the purpose of calculating child support if it finds the obligor is voluntarily unemployed or underemployed. Minn. Stat. § 518.551, subd. 5b(d) (1996); Franzen v. Borders, 521 N.W.2d 626, 628 (Minn. App. 1994). A court is precluded from imputing income if the obligor's unemployment or underemployment: (1) is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change, which outweighs the adverse effect of the obligor's diminished income on the child. Minn. Stat. § 518.551, subd. 5b(d); Franzen, 521 N.W.2d at 628-29.

Wick argues the evidence fails to support the ALJ's findings that Wick was voluntarily underemployed or her decision to impute income of $10 per hour to Wick. We disagree. The record demonstrates: (1) Wick operates a brake repair business; (2) he repairs snowmobiles as a hobby, and a business; (3) Wick has been self-employed since 1989; (4) Wick works 40 to 50 hours per week and receives cash payments for work performed; (5) the local rate of pay for auto mechanics in Wick's community is between $12.25 and $15.29 per hour; (6) on his tax return, Wick reported net yearly income of $69 (1994), $3,746 (1995), and $378 (1996); and (7) Wick has never looked for other employment and does not expect his income to increase in the future. Given these facts, the ALJ's finding that Wick is voluntarily underemployed is supported by the record. Under these circumstances, we cannot say the ALJ abused her discretion in imputing income to Wick. See Minn. Stat. § 518.551, subd. 5b(d) (defining "imputed income" as estimated earning ability of obligor, based on obligor's prior earning history, education, job skills, and availability of jobs within community for individual with obligor's qualifications); Roatch v. Puera, 534 N.W.2d 560, 565 (Minn. App. 1995) (concluding imputed income figure supported by record because figure based on business records, tax returns, expert testimony, and an examination of parties' lifestyles).

In the alternative, Wick argues the ALJ erroneously calculated the amount of his child support obligation by failing to exclude $100 in payments for "ongoing medical support" and "medical assistance." We disagree. Although Wick is required to make these payments for his child's medical expenses, they are not allowable deductions in determining net income for application of the child support guidelines. See Minn. Stat. § 518.551, subd. 5(b) (1996) (providing courts shall derive amount of child support by multiplying "net monthly income" by appropriate percentage indicated by child support guidelines); Id., subd. 5(b)(1) (defining "net income" as total monthly income minus federal and state taxes, social security deductions, reasonable pension deductions, union dues, cost of dependent health insurance coverage, cost of individual or group health or hospitalization coverage, or an amount for actual medical expenses, and child support or maintenance order that is currently being paid) (emphasis added); see also Minn. Stat. § 518.171, subd. 1(a)(2)(iii) (1996) (providing "health insurance coverage" does not include medical assistance); Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997) (concluding deduction for "actual medical expenses" limited to deduction for expenses incurred by obligor or children covered by support order).

Under these circumstances, the ALJ did not err in calculating Wick's child support obligation.