In re the Marriage of: Shane C. Perry, joint petitioner, Respondent, vs. Jane Hall Perry, n/k/a Jane Hall-Dayle, joint petitioner, Appellant.

In re the Marriage of: Shane C. Perry, joint petitioner, Respondent, vs. Jane Hall Perry, n/k/a Jane Hall-Dayle, joint petitioner, Appellant. A06-1133, Court of Appeals Unpublished, April 24, 2007.

This opinion will be unpublished and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

A06-1133

 

In re the Marriage of:

Shane C. Perry, joint petitioner,

Respondent,

 

vs.

 

Jane Hall Perry, n/k/a

Jane Hall-Dayle, joint petitioner,

Appellant.

 

 

Filed April 24, 2007

Affirmed Worke, Judge

 

Ramsey County District Court

File No. F5-99-1380

 

Shane C. Perry, Perry, Perry & Perry, Parkdale 1, Suite 270, 5401 Gamble Drive, Minneapolis, MN 55416 (attorney pro se)

 

Jennifer R. Wellner, Wellner & Isaacson, PLLP, Glen Oaks Center, 2E South Pine Drive, Circle Pines, MN 55014 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal in this child-support-modification dispute, appellant argues that (1) the district court should not have imputed income to her when it did not find, and the record does not show, that she was voluntarily underemployed; (2) the record does not support basing a support obligation on the income from the sale of her properties; and (3) the district court incorrectly applied the Hortis/Valento formula based on its own figures and should have based its support calculation on appellant's actual net-monthly income.  We affirm.

FACTS

            Under the parties' original judgment and decree, appellant Jane Hall Perry (n/k/a Jane Hall-Dayle) and respondent Shane C. Perry were awarded joint legal and joint physical custody of their four children: K.P., S.P., M.P., and J.P.  Based on the custody and parenting-time schedule, no child support was awarded to either party.  In January 2004, respondent was awarded temporary sole physical custody of J.P.  In October 2004, K.P. began residing solely with respondent.  In August 2005, the district court filed an amended judgment and decree granting respondent sole legal custody of J.P. and ordering that J.P. live primarily with respondent and have parenting time with appellant.  The court ordered that K.P. would live primarily with respondent and have parenting time with appellant.

            In April 2006, following motions for child support by both parties, the district court found that a substantial change in circumstances existed making the original child-support order unreasonable and unfair; while both parties were earning less, their monthly expenses had decreased, and respondent had "de facto sole physical custody" of J.P. and K.P., while the parties continued to share joint physical custody of S.P. and M.P.  The district court also found that appellant was voluntarily underemployed because, while she possesses two graduate degrees, was previously employed as the director of risk management at a hospital, and had at one time operated her own law practice, she was employed as a paraprofessional earning $1,337.69 per month while completing a master's degree program to become a special-education teacher.   Because the district court found appellant to be voluntarily underemployed, it imputed income to her in the amount of $3,164.25 per month, based on her proven income-producing abilities.  The district court calculated child support for K.P. and J.P. based on respondent's "de facto sole physical custody" and calculated child support for S.P. and M.P. using the Hortis/Valento formula.  The district court offset the amounts and ordered appellant to pay respondent $688.91 per month.  This appeal follows.

D E C I S I O N

            If a party appeals directly from a child-support magistrate's original decision without moving for district court review under Minn. R. Gen. Pract. 376.01, "appellate review is limited to determining whether the evidence supports the findings and whether the findings of fact support the conclusions of law and the judgment."  Kahn v. Tronnier, 547 N.W.2d 425, 428 (Minn. App. 1996), review denied (Minn. July 10, 1996).  An appellate court will not reverse the modification of child support absent an abuse of discretion. Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001).

Imputing Income

            Appellant argues that the district court abused its discretion when it found that she was voluntarily underemployed and imputed income to her for calculating child support.  The district court has broad discretion to provide for the support of the parties' children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law.  Id.   Here, the district court found that appellant was voluntarily underemployed and imputed income to her based on her two graduate degrees and her proven income-producing abilities. 

            Generally, "[t]he obligation to pay childsupport is premised on the obligor's ability to pay."  Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991).  The district court, however, must imputeincome when calculatingchildsupport if it finds that the obligor is voluntarily unemployed or underemployed. Minn. Stat. § 518.551, subd. 5b(d) (2004).  A parent is not considered voluntarily unemployed or underemployed if the parent shows that their 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."  Id. 

            The imputation of income to a parent is appropriate if the parent chose to be unemployed or underemployed and neither statutory condition applies.  Franzen v. Borders, 521 N.W.2d 626, 629 (Minn. App. 1994).  Here, there was sufficient evidence to support the district court's finding that appellant was voluntarily underemployed.  Appellant has a nursing degree and a law degree, and has worked as the director of risk management at a local hospital.  At the time of the motion, however, appellant was working as a paraprofessional, earning significantly less than she has in the past, while attempting to complete a master's program to become a special-education teacher. 

            If a district court concludes that an obligor is voluntarily unemployed or underemployed, it shall calculate support based upon a determination of imputed income. Minn. Stat. § 518.551, subd. 5b(d).  Under the statute,

[i]mputed 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.

 

Id.   The imputedincome must be based on the potential income within the obligor's community.  Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn. App. 1996).  Here, appellant chose to obtain a third graduate degree in a new field, resulting in a significant decrease in her income.  Additionally, the income imputed to appellant was based on evidence showing the income she was capable of earning based on her graduate degrees in nursing and law as well as her employment experience in business administration.  Further, while appellant argues that the district court should not have used the sale of her properties in calculating child support, the income imputed to appellant is based on more than the income from the property, and if the district court had used appellant's income from the years that appellant sold the properties, the amount imputed to appellant would likely have been significantly higher. 

            Because the district court's finding that appellant was voluntarily underemployed is supported by the evidence, and the amount imputed to appellant was reasonable based on her potential income in the community, the district court did not abuse its discretion in imputing income to appellant for calculating child support.

Hortis/Valento

            Appellant argues that the application of the Hortis/Valento formula to her imputed income results in a gross inequity; K.P. and J.P., who reside solely with respondent, would receive a greater benefit than S.P. and M.P., with whom the parties share physical custody.

            It is undisputed that the label on the parties' custody arrangement is joint physical custody, and that, despite changes since the judgment in the amount of time the children spend with each parent, that label has not been changed.  A custody label dispositively determines the method for calculating the presumptively appropriate support obligation.  Nolte v. Mehrens, 648 N.W.2d 727, 730 (Minn. App. 2002).  Because the parties share joint physical custody, the method for calculating support is the Hortis/Valento formula.  See Maschoff v. Leiding, 696 N.W.2d 834, 840 (Minn. App. 2005) (noting custody label determines whether presumptively appropriate support obligation is calculated via a straightforward application of support guidelines for sole physical custody or by applying the Hortis/Valento formula for joint physical custody).  But the district court based its support calculation on a determination that respondent had "de facto sole physical custody" of K.P. and J.P.  In other words, the district court erred as a matter of law by calculating the support obligation for K.P. and J.P. based on the nonstatutorynonexistentcustody label of "de facto sole physical custody."

            Appellate courts "will not reverse a correct decision simply because it is based on incorrect reasons."  Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987).  Under the Hortis/Valento formula, "separate support obligations are set for each parent, but only for the periods of time that the other parent has physical custody of the children, and a single net payment is determined by offsetting the two obligations against each other."  Bender v. Bender, 671 N.W.2d 602, 608 (Minn. App. 2003) (citing Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001)).  Here, appellant does not dispute the fact that K.P. and J.P. reside solely with respondent.  Therefore, even if the district court had calculated child support for K.P. and J.P. under the Hortis/Valento formula, appellant would be presumptively obligated to pay the full guideline-support amount for the period of time respondent has the two children, which is nearly all of the time.  Thus, while the district court erred as a matter of law in its selection of the method for calculating the presumptively appropriate support obligation, the resulting presumptive obligation using the correct method is the same as that calculated by the district court.  Absent a reason for deviating here, we affirm the support obligation set by the district court.  See Minn. R. Civ. P. 61 (requiring harmless error, which does not affect the substantial rights of the parties, be disregarded).

Attorney Fees

            Respondent requests an award of attorney fees on appeal.  Respondent has not properly moved for attorney fees under Minn. R. Civ. App. P. 139.06.  Further, there is nothing in the record to support a determination by this court that the appeal was filed in bad faith; therefore, there is no basis to award conduct-based attorney fees.  Respondent also did not make a need-based request for attorney fees under Minn. Stat.  § 518.14 (2006), and there is insufficient evidence in the record for this court to make an independent award of attorney fees based on need. 

            Affirmed.