In re the Marriage of: Nancy Jean Pollard, petitioner, Respondent, vs. William B. Pollard, Appellant.

In re the Marriage of: Nancy Jean Pollard, petitioner, Respondent, vs. William B. Pollard, Appellant. A06-538, Court of Appeals Unpublished, October 3, 2006.

This opinion will be unpublished and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

A06-538

 

In re the Marriage of:

Nancy Jean Pollard, petitioner,

Respondent,

 

vs.

 

William B. Pollard,

Appellant.

 

Filed October 3, 2006

Affirmed

Ross, Judge

 

St. Louis County District Court

File No.: 69-F0-96-600122

 

Arthur M. Albertson, 101 West Second Street, Suite 107, Duluth MN 55802 (for appellant)

 

Alan L. Mitchell, St. Louis County Attorney, Lois Kuhlke, Assistant County Attorney, 320 West Second Street, Suite 403, Duluth MN 55802 (for intervenor)

 

Nancy Jean Pollard, 418 41st Avenue East, Duluth, MN 55804 (pro se respondent)

 

 

Considered and decided by Willis, Presiding Judge; Dietzen, Judge; and Ross, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

ROSS, Judge

 

This appeal arises from a child-support dispute in which a child-support magistrate imputed to appellant-father William Pollard a net monthly income of $3,324 and increased his support obligation to respondent-mother Nancy Pollard to $831 monthly.  William Pollard argues that the magistrate abused his discretion by imputing income and by disregarding his disabilities.  Because the child-support magistrate's findings are supported by the record and because we find no abuse of discretion, we affirm.

FACTS

William and Nancy Pollard dissolved their marriage in February 1991.  At that time, the parties had three minor children, and the district court ordered William Pollard to pay about $350 monthly as child support.

In October 2001, Nancy Pollard moved the district court to modify William Pollard's child-support obligation.  Because William Pollard did not provide the presiding child-support magistrate with requested information regarding his income, the magistrate imputed to him a $3,164 net monthly income, based on his earning ability as a licensed electrician.  The magistrate ordered him to pay to Nancy Pollard $949 monthly as child support.

William Pollard later provided the magistrate with letters from two doctors indicating that his disability prevented him from working competitively as an electrician but that he was able to work in a less physically demanding field.  In April 2002, the magistrate relied on Minn. Stat. § 518.551, subd. 5b(e) (2000), and imputed to William Pollard a net monthly income of $1,221, which represents full-time employment of 40 hours per week at 150 percent of the federal minimum wage.  By this time the Pollards had two minor children, and the district court modified his child-support obligation and ordered him to pay Nancy Pollard $366 a month.  The district court later reduced William Pollard's monthly child-support obligation to $189 monthly because another child was emancipated and because of cost-of-living adjustments.

In May 2005, the Railroad Retirement Board (RRB) began sending William Pollard $1,482.56 monthly from his railroad-retirement disability annuity and his social security benefits.  The RRB, however, deducted $189 a month for his child-support obligation, and he received checks in the amount of $1,293.56.  Later that month, Nancy Pollard again moved the district court to modify William Pollard's child-support obligation, based in part on his increased income.  William Pollard then wrote to the RRB indicating his intent to find employment as a construction supervisor.  He requested that the RRB suspend paying him benefits pending his anticipated employment.  The RRB replied, informing him that he was not eligible for a disability annuity and requesting that he undergo an independent medical examination to determine his future eligibility.

The child-support magistrate heard testimony on July 28, 2005, from both parties on the motion to modify child support.  William Pollard testified that he was unemployed and that the RRB payments were his only income.  He was unable to provide the magistrate with current information regarding his income or his disability, however, so the magistrate left the record open for two weeks to give him an opportunity to submit supplemental documents.

William Pollard later submitted his 2004 tax return, several medical examination notes, and an August 5, 2005 letter from the RRB.  The RRB letter indicated that his annuity benefits were suspended on his request because he was returning to work as a construction supervisor.  The letter also explained that his "benefits were not suspended because additional medical evidence was requested by the Board" and that his "Social Security benefit . . . remains in pay status until the Social Security Administration acts upon his request for voluntary suspension."

Based on the testimony at the July 28 hearing and on the RRB's letter, the child-support magistrate reasoned that the RRB had no motive to misrepresent its reason for suspending benefits and found that William Pollard acted in bad faith by requesting a suspension of his benefits "immediately after he was served with [Nancy Pollard's] motion to modify child support."  Relying on a Minnesota Department of Employment and Economic Development salary survey, the magistrate also found that construction supervisors in northeast Minnesota earn an average hourly wage of $27.53.  The magistrate accordingly imputed a $3,324 net monthly income to William Pollard and modified his monthly support obligation to $831.

William Pollard moved the district court to review the child-support magistrate's decision.  After a de novo review of the record and the magistrate's order, the district court remanded the matter to the magistrate "to allow [William Pollard] the opportunity to respond to the Railroad Retirement Board letter [and to] make any appropriate adjustments to the order after consideration of the information received regarding the Railroad Retirement Board letter."  The district court noted that "[i]t would be unfair to not allow [William Pollard] an opportunity to address the discrepancies in the letter and his testimony."  The district court left undisturbed all other portions of the magistrate's order.

At the remand hearing in December 2005, William Pollard submitted to the child-support magistrate a letter from the RRB dated August 9, 2005.  The August 9 letter provided that William Pollard had informed the RRB that he began working on July 18, 2005, and was earning $500 weekly.  He testified that this amount actually reflected his monthly earnings.  In light of the August 9 letter, the child-support magistrate found that William Pollard's July 28 testimony that he was not employed was "false and misleading, and constituted a fraud upon, and misrepresentation to the court."  The magistrate added that he "has very little credibility with this tribunal, and support shall be set accordingly." The magistrate rejected his testimony that his income is only $500 monthly and the RRB letter's $500 weekly figure, finding both unreliable because they depend entirely on his credibility.  The magistrate determined that William Pollard is employed, but because his lack of candor to the court rendered his "income and employment . . . unknown," the magistrate used the imputed net monthly income determination made in relation to the previous order, $3,324, and again directed him to pay Nancy Pollard $831 monthly as child support.  This appeal follows.

D E C I S I O N

WilliamPollard challenges the child-support magistrate's upward modification of his child-support obligation.  We review a child-support magistrate's order for an abuse of discretion.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 44546 (Minn. App. 2002).  A child-support magistrate abuses his discretion when he resolves a matter "against the logic and the facts on record."  Id. at 445 (quotation omitted).  We will not reverse a determination of an obligor's income for purposes of child support unless the finding is clearly erroneous.  Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005).

William Pollard argues that the child-support magistrate abused his discretion by concluding that a substantial change in circumstances rendered the existing support obligation unreasonable and unfair.  Modification of a child-support obligation is appropriate when a party has a substantial increase or decrease in earnings.  Minn. Stat. § 518.64, subd. 2(a)(1) (2004).  If the support obligation has been previously modified, "this court looks to the last modification order to determine whether there has been a change in circumstances."  Long v. Creighton, 670 N.W.2d 621, 626 (Minn. App. 2003).

Nancy Pollard based her motion to modify on William Pollard's increased monthly earnings from his disability annuity and his social security benefits, but the child-support magistrate ultimately modified the obligation based on the imputation of a $3,324 net monthly income to him.  Although his previous child-support obligation was based on an imputed net monthly income of $1,221, William Pollard argues that his income has not substantially increased.  His argument rests solely on his allegations of magistrate error in determining and imputing his income.  Therefore, to determine whether his income has substantially increased, we must first review the magistrate's decision to impute a $3,324 net monthly income.

William Pollard maintains that the child-support magistrate abused his discretion by imputing income rather than basing the determination on actual income.  He asserts that his RRB benefits reflect an actual gross monthly income of $1,483, and he estimates that after taxes his net monthly income is $1,261.  But three letters from the RRB and William Pollard's testimony demonstrate that he is no longer receiving these benefits.  The only record evidence showing his actual income is his inconsistent testimony and the letter from the RRB indicating that he earns $500 weekly.  The magistrate rejected this evidence because he determined that any income figure submitted by William Pollard to the court or to the RRB is incredible.  The magistrate had little choice.  He found that William Pollard "was caught lying" and that he had "no credibility with the court."  The magistrate also found that William Pollard voluntarily ended his disability benefits in bad faith to escape his support obligations and that contrary to his false testimony, he was employed.  We are not in a position to reweigh the evidence or to second-guess the magistrate's credibility determinations.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (discussing scope of appellate review).  Because the record contains no actual-income evidence that the child-support magistrate found to be credible, we cannot conclude that the magistrate abused his discretion by not basing his determination of William's income on his actual income.

William Pollard next argues that the child-support magistrate abused his discretion by imputing income because imputing income to a person with disabilities is statutorily barred.  The argument misunderstands the magistrate's analysis.  A parent who receives "public assistance under section 256.741, or is physically or mentally incapacitated," is presumed to not be voluntarily unemployed or underemployed for purposes of income imputation.  Minn. Stat. § 518.551, subd. 5b(e) (2004).  But the child-support magistrate's income calculation was not based on a finding that William Pollard was voluntarily underemployed or unemployed.  The magistrate relied on its prior calculation of imputed income because the record did not contain reliable evidence of his actual income.  Caselaw allows for the imputation of an obligor's income when a lack of record evidence makes it impracticable to determine actual income.  Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996); Beede v. Law, 400 N.W.2d 831, 835-36 (Minn. App. 1987).

In this circumstance, "imputation" may be more accurately regarded as a reasonable estimation of actual income to augment gaps in the financial record, rather than a justifiable offset for a voluntary reduction in income occasioned by intentional underemployment.  This approach is necessary here because the only credible evidence in the record regarding William Pollard's income was his consistent assertion that he sought and obtained employment as a construction supervisor.  The magistrate found that William Pollard is employed in that capacity, that he lied to the court to underrepresent his income, and that he voluntarily rejected disability benefits because his employment rendered these benefits unnecessary.  Whether William Pollard voluntarily decreased his income by declining benefits or by reducing employment, or whether he increased his income by working as a construction supervisor while falsely representing his actual income, these circumstances made it impracticable to assign income by any means other than imputation.  Because it would have otherwise been impracticable to determine his income, the magistrate's calculation reasonably relied on the available evidence and figures from the Department of Employment and Economic Development.  We conclude that the child-support magistrate did not abuse his discretion by imputing income to William Pollard.

Finally, WilliamPollard argues that the child-support magistrate abused his discretion by disregarding his disabilities.  He contends that his disabilities account for his inconsistent testimony.  He is essentially asking us to replace the magistrate's credibility determination with our own.  But we defer to a magistrate's decisions concerning the weight and credibility of evidence. Sefkow, 427 N.W.2d at 210.  The magistrate did not find William Pollard's testimony believable, and William Pollard has not presented a compelling reason to set aside the magistrate's credibility determination.  He urges that his disabilities are nonetheless an established part of the record and that his receipt of RRB and social security benefits shows that his disabilities render him incapable of working.  But the record also establishes that he voluntarily suspended those benefits because he is able to work.  In light of William Pollard's acknowledged ability to work, we hold that the child-support magistrate did not abuse his discretion by disregarding evidence of the alleged disabilities.

We conclude that the child-support magistrate's imputation of monthly income is an appropriate method to determine actual income when income is otherwise undiscernable as a result of the obligor's incredible testimony.  It therefore is not an abuse of discretion to impute $3,324 net monthly income based on William Pollard's stated employment.  A $3,324 net monthly income is more than twice the previous $1,221 net monthly income and is a substantial increase.  Because William Pollard's income has substantially increased, the child-support magistrate did not abuse his discretion by modifying the child-support obligation.

Affirmed.