In re the Marriage of: Wayne Alan Butt, petitioner, Appellant, vs. Eleanor Anna Schmidt, Respondent.

In re the Marriage of: Wayne Alan Butt, petitioner, Appellant, vs. Eleanor Anna Schmidt, Respondent. A06-1015, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1015

 

 

In re the Marriage of:

Wayne Alan Butt, petitioner,

Appellant,

 

vs.

 

Eleanor Anna Schmidt,

Respondent

 

 

Filed July 24, 2007

Affirmed in part, reversed in part, and remanded

Parker, Judge*

 

 

Washington County District Court

File No. F0-03-7349

 

 

Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Suite 100, Burnsville, MN  55337 (for appellant)

 

Larry J. Laver, 7616 Currell Boulevard, Suite 240, Woodbury, MN  55125 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Willis, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            On appeal in this dissolution proceeding, appellant-husband argues that the district court erred by (a) failing to credit his child-support obligation retroactively to the date the parties stipulated to joint physical and legal custody; (b) declining to impute income to respondent-wife; and (c) refusing to consider respondent-wife's spousal-maintenance award as income for purposes of calculating the parties' child-support obligations.  Because spousal-maintenance awards are forms of "periodic" payments, the district court erred in failing to consider respondent's spousal-maintenance award as income for purposes of calculating the parties' child-support obligations.  We, therefore, reverse and remand on that issue.  All other issues are affirmed.   

D E C I S I O N

I.

            The presumptively appropriate guideline child-support obligation in joint-physical-custody cases is the obligation that is calculated under the Hortis/Valento formula.  Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn. App. 2001). Under the formula, "the guideline child support amount is the amount indicated by the guidelines, but only for the periods of time that the other parent has actual custody" of the child.  Id. at 792.  "Thus, the presumptively correct, guideline child-support amount for parents with joint physical custody is the amount calculated under Minn. Stat. § 518.551, subd. 5(b), for each parent, less the amount offset by the Hortis/Valento formula."  Id. at 793.  Any deviation from this amount requires findings under Minn. Stat. § 518.551, subd. 5(i) (2004).  Id.  This court will "not reverse the trial court's decision on child support . . . unless that decision was clearly erroneous."  Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984).

            Appellant argues that the district court abused discretion in failing to credit his child-support obligation retroactively to the date the parties stipulated to joint legal and physical custody.  Generally, a district court "may not order retroactive child support for dates prior to the commencement of an action under chapter 518."  Korf v. Korf, 553 N.W.2d 706, 710 (Minn. App. 1996).  But "the power to award retroactive child support is not lost forever."  Id.  In J.M.K., this court observed that a "temporary order does not in any way limit a court's ability to fashion a final dissolution order."  In re J.M.K., 507 N.W.2d 459, 461 (Minn. App. 1993).  In this way, the district court may consider all payments made by the obligor since the time of the separation and "address all of the parties' concerns in a single action . . . with full consideration of all the facts and circumstances."  Id.    

            Here, the district court issued a temporary order in August 2004, awarding respondent temporary physical custody of the parties' minor children, temporary child support in the amount of $2,358 per month, and temporary maintenance in the amount of $1,010 per month.  In January 2005, the parties stipulated to a parenting plan under Minn. Stat. § 518.1705 providing the parties with joint physical and legal custody of the children.  Although the district court signed the dissolution judgment and decree in December 2005, the court reserved the issue of child support to be calculated under the Hortis/Valento formula.  On March 28, 2006, the district court set appellant's child support net payment at $1,177.

            Appellant argues that the district court erred by failing to retroactively employ a Hortis/Valento offset to the joint-custody arrangement that was established in January 2005.  The record reflects that appellant failed to raise this issue before the district court.  Because it was not raised below, appellant has waived the issue and we need not address it.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that a reviewing court must generally consider only those issues that the record shows were presented and considered by the district court in deciding the matter).  Moreover, we note that if appellant did not request retroactive relief from the district court, there can be no abuse of discretion if the district court did not grant such relief.  Finally, even if we were to address the issue, there was no abuse of discretion.  The parties stipulated to joint legal and physical custody in January 2005, and the arrangement was ordered in May 2005.  During this time period, appellant did not move to modify the temporary support order.  Minn. Stat. § 518.131, subd. 5 (2004), provides that "[a] temporary order shall continue in full force and effect until the earlier of its amendment or vacation, dismissal of the main action or entry of a final decree of dissolution or legal separation."  Because the temporary order was in full force and effect at the time the parties stipulated to the joint-physical-custody arrangement, and appellant did not move to modify the temporary order at any time, appellant has failed to establish that the district court abused discretion by declining to retroactively credit appellant's child-support obligation.    

II.

            Appellant argues that the district court abused discretion by declining to impute income to respondent.  Whether to impute income to a support obligor is discretionary with the district court.  Murphy v. Murphy, 574 N.W.2d 77, 82-83 (Minn. App. 1998).

            Minnesota law provides that:

            If the court finds that a parent is voluntarily unemployed or underemployed . . ., support shall be calculated based on a determination of imputed income.  A parent is not considered voluntarily unemployed or underemployed upon a showing by the parent that the 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.  Imputed income means the estimated earning ability of a parent based on the parent's prior earnings history, education, and job skills, and on availability of jobs within the community for an individual with the parent's qualifications. 

 

Minn. Stat. § 518.551, subd. 5b(d) (2004). 

            Here, the district court found that "based upon the scant evidence provided to the Court, the Court cannot find that [respondent] is voluntarily unemployed or underemployed.  Lacking evidence as to Respondent's attempts to secure employment, her employment history, education, and other appropriate factors, the Court is not in a position to impute income to Respondent."  Appellant argues that the district court abused discretion by declining to impute income to respondent because (1) there was sufficient evidence of respondent's work history and education in the record; and (2) the district court improperly placed the burden of proof of employability on appellant.

            Although appellant argues that the burden of proof to show employability is on respondent, the initial burden of establishing that respondent is unemployed or underemployed was on appellant because appellant made the allegation that respondent was voluntarily unemployed or underemployed.  See Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001) (citing cases showing that the moving party in family law matters has burden of proof).  Only after appellant has established that respondent is underemployed does the burden shift to respondent for her to establish that the "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, the district court was unable to determine whether respondent's unemployment constituted underemployment for purposes of imputing income because there was insufficient evidence in the record regarding respondent's work history and educational background.  Therefore, because there was never a finding that respondent was voluntarily unemployed or underemployed, the burden never shifted to respondent. 

            Appellant argues that there was sufficient evidence of respondent's work history and education in the record to impute income to respondent.  We disagree.  The parties had three children during the marriage, and it appears to be undisputed that appellant was the primary breadwinner.  This is reflected by appellant's $5,633 monthly net income.  Moreover, respondent's answer and counterpetition alleged that respondent was a "stay-at-home mother and homemaker" during the marriage.  Although there is evidence in the record that respondent occasionally worked part time as a daycare provider and as a playground attendant at the local school district, there is nothing more in the record regarding respondent's education and employment background.  Evidence on these factors is necessary to determine whether respondent was voluntarily underemployed.  Accordingly, the district court did not abuse discretion in declining to impute income to respondent.

III.

            Appellant argues that the district court erred in refusing to consider respondent's spousal-maintenance award as income for purposes of calculating the parties' child-support obligations.  A determination of the amount of an obligor's income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  But whether a source of funds is income for support purposes is a legal question reviewed de novo.  Sherburne County Soc. Servs. v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992).

            Minnesota law defines "income" as:

[A]ny form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, workers' compensation, unemployment benefits, annuity, military and naval retirement, pension and disability payments.  Benefits received under Title IV-A of the Social Security Act and chapter 256J are not income under this section.

 

Minn. Stat. § 518.54, subd. 6 (2004).

            Appellant contends that because maintenance is a form of "periodic payment," it should be considered for purposes of calculating the parties' child-support obligations.  We agree.  Maintenance is a form of periodic payment.  Moreover, the federal tax code treats maintenance as income.  See 26 U.S.C. § 71(a) (2004).  In light of the statutory definition of "income," we conclude that the district court erred in refusing to consider respondent's spousal-maintenance award as income.  Accordingly, we remand the matter to the district court for reconsideration of appellant's child-support obligation based on our conclusion that respondent's maintenance award should be considered as income.  On remand, the district court shall have discretion to make any adjustment to the maintenance award deemed necessary to achieve an equitable result in this case.  If the district court believes that altering the support or maintenance award requires additional information, the district court shall have discretion to reopen the record.

            Affirmed in part, reversed in part, and remanded.

 

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