In Re the Custody of: E.N.M., a Minor, Rebecca Jo Nash, petitioner, Respondent, vs. James Lee Moravec, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

  STATE OF MINNESOTA

IN COURT OF APPEALS

C7-01-527

 

In Re the Matter of:

 

Paul Daniel Putz, n/k/a Paul Ben-Yehuda, petitioner,

Respondent,

 

vs.

 

County of Benton,

Appellant,

 

Jamile Therese Putz,

respondent below.

 

Filed August 21, 2001

Affirmed

Lindberg, Judge*

 

Benton County District Court

File No. F599787

 

Lynne M. Ridgeway, Hall & Byers, 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondent)

 

Robert J. Raupp, Benton County Attorney, Robert B. Anderson, Assistant County Attorney, 615 Highway 23, P.O. Box 189, Foley, MN 56329 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Amundson, Judge, and Lindberg, Judge.

 

U N P U B L I S H E D  O P I N I O N

LINDBERG, Judge

            On appeal from a child support magistrate's order in a postdissolution modification proceeding, appellant Benton County argues that the child support magistrate erred by (1) finding that respondent Paul Ben-Yehuda was not voluntarily unemployed; (2) finding that his return to school constituted a substantial change in circumstances; (3) determining that respondent's modified child support obligation was not a deviation from the guidelines; and (4) setting respondent's support obligation without considering the contribution he receives from his spouse and others.  We affirm.

FACTS

 

Paul Putz, n/k/a Paul Ben-Yehuda, and Jamile Putz were married on August 15, 1992.[1]  The parties had one child during the course of their marriage.  The parties dissolved their seven-year marriage in October 1999.  At the time of dissolution, respondent was employed full-time in a supervisory capacity at the United States Postal Service.  In the dissolution decree, respondent's gross annual income was determined to be $40,000.  The decree incorporated terms of the parties' stipulation providing for monthly child support of $400.  The decree recognized that this figure represented a downward departure from the child support guidelines, justified by the following reasons: 

[Respondent] is planning on moving out of the United States and taking a different job. * * * [T]he parties are cognizant of that fact and have made their * * * child support agreement based on [respondent's] income in his anticipated new job.

Despite his earlier intentions, respondent chose to remain in the United States, and later remarried.  In July 2000, respondent terminated his full-time employment and enrolled at St. Cloud State University as a full-time student.  He intends to complete coursework towards a computer science degree.

In November 2000, Benton County moved to increase respondent's monthly child support obligation to $945.88.  The county argued that respondent is capable of earning $19.23 per hour, and therefore was voluntarily unemployed.  Respondent responded with a motion to suspend child support based on his decreased income, arguing that his obligation should be suspended until he completes college.  After a hearing on the motions, the child support magistrate found that respondent's net monthly income was $460[2] (as compared to a finding of net monthly income of $4,000 at the time of dissolution), that respondent's unemployment was temporary and designed to lead to an increase in income, that respondent's decreased income constituted a substantial change in circumstances making the original child support award unreasonable and unfair, and reduced respondent's monthly child support obligation to $50.  The court further ordered respondent to notify Putz of any changes in his educational or employment status.  The county appeals.

D E C I S I O N

 

The decision to modify a child support order "lies in the broad and sound discretion of the [district] court," and an appellate court will not reverse absent an abuse of that discretion.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  Such an abuse occurs when the district court resolves the matter in a manner "that is against logic and the facts on record * * *."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  The same standard applies when this court reviews a child support magistrate's order.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).

Voluntary Unemployment

 

            The county argues that respondent "clearly had the ability to continue on with his employment with the United States Postal Service as a supervisor, earning $44,000 per year," and acted in bad faith in terminating his employment.  Further, the county contends that respondent self-limited his income, and therefore, the child support magistrate erred in failing to impute income to respondent.

Generally, the obligation to pay child support is premised on an obligor's ability to pay.  Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991).  However, a party is not entitled to purposely create a decrease in earnings by voluntarily terminating his employment.  Goff v. Goff, 388 N.W.2d 28, 30 (Minn. App. 1986).  A voluntary reduction of earnings without good cause may not be used as a basis for a reduction of child support.  Curtis v. Curtis, 442 N.W.2d 173, 177-78 (Minn. App. 1989).

In calculating child support, the child support magistrate shall impute income to a voluntarily unemployed or underemployed obligor.  Minn. Stat. § 518.551, subd. 5b(d) (2000); Franzen v. Borders, 521 N.W.2d 626, 628-29 (Minn. App. 1994).  A parent is not considered voluntarily unemployed or underemployed if he or she shows that his or her unemployment or underemployment

(1)    is temporary and will ultimately lead to an increase in income; or (2) represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.

 

Minn. Stat. § 518.551, subd. 5b(d).

 

Here, respondent concedes that he voluntarily terminated his employment at the postal service.  The record demonstrates that respondent (1) was earning a gross annual income of $44,000 as of June 2000, (2) resigned from his job in July 2000, (3) enrolled as a full-time student at St. Cloud State University in July 2000, (4) anticipates he will complete his schooling in 2004, (5) anticipates that he will be earning a minimum annual salary of $70,000 once he obtains his computer science degree, and (6) is aware that his obligation will resume at an increased rate once he graduates. 

An obligor generally is not considered voluntarily unemployed or underemployed while the obligor is attending school.  In re Custody of A.S.R., 539 N.W.2d 607, 612 (Minn. App. 1995).  In A.S.R. the father of a three-year-old child terminated his full-time employment and enrolled at the University of Minnesota as a full-time student.  Id. at 609.  He sought a reduction in his child support obligation to the guideline amount.  Id.  The district court denied father's request and held that "[t]he needs of the child cannot be postponed or deferred until [father] has completed his education."  Id.  On appeal, this court held that because the record reflected that father was legitimately seeking higher education, he was not voluntarily unemployed or underemployed.  Id. at 612.

In this case, respondent is a 34 year-old high school graduate.  Realizing that his employment prospects were limited, respondent terminated his job at the postal service, and chose to devote his "full-time attention to [his] studies."  Respondent contends that he returned to school to increase his income potential.  Upon graduation, his daughter will be ten years old.[3]  The child will benefit from approximately eight years of child support at an increased level.

The magistrate acted within his discretion in concluding that respondent's return to school was temporary and likely to lead to an increase in income.  Respondent was not voluntarily unemployed within the meaning of Minn. Stat. § 518.551, and acted in good faith in terminating his employment.

Child support may be modified upon a showing of a substantial change in a party's earnings or in the needs of a party or the child, any of which makes the terms of the existing order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2000).

It is presumed that there has been a substantial change in circumstances under paragraph (a) and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if:

(1) the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.

Id., subd. 2(b).

In finding a substantial change of circumstances making the existing child support order unreasonable and unfair, the child support magistrate relied on the presumption in Minn. Stat. § 518.64, subd. 2(b)(1).  The magistrate found that the original child support order was based on respondent's then net monthly income of $4,000.  He therefore determined that respondent's decreased income constituted a substantial change in circumstances rendering the existing order unreasonable and unfair; this finding of a substantial change in circumstances was not an abuse of discretion.

Child Support Guidelines

 

The County argues that the child support magistrate deviated from the child support guidelines when he failed to impute income to respondent.  As discussed, courts are mandated to impute income where an obligor is voluntarily unemployed or underemployed.  Because the magistrate correctly determined that respondent was not voluntarily unemployed, he was not required to impute income to respondent.

For a net income of $550 or below, child support is based only on an obligor's ability to pay.  Minn. Stat. § 518.551, subd. 5(b) (2000).  The magistrate found that respondent was able to pay $50 per month.  The magistrate did not depart from the child support guidelines in setting respondent's child support obligation.

Monetary Contributions

Lastly, the county argues that the magistrate should have considered all monetary contributions respondent receives from his spouse and others when calculating his income for child support purposes.

This issue was not raised below.  Generally, this court may consider only those issues presented to and addressed by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Yet, this court has discretion to address any issue as justice requires.  Minn. R. Civ. App. P. 103.04.

Because the record does not contain any information concerning the alleged contributions by respondent's spouse or others, the magistrate did not err in determining that respondent's monthly income is $460.

            Affirmed.      

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

[1]Jamile Putz is not a party to this appeal. 

[2] As a military veteran, respondent receives $460 per month.

[3] Putz is always free to move to increase respondent's child support obligation if and when a substantial change of circumstances exists.  Minn. Stat. § 518.64, subd. 2 (2000).  The completion of respondent's college education may be such a change of circumstances.