In re: Kimberly Dawn Birchard, n/k/a Kimberly Dawn Jagaraj, petitioner, Appellant, vs. David Clayton Birchard, Jr., Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-02-2135

 

In re:  Kimberly Dawn Birchard,
n/k/a Kimberly Dawn Jagaraj, petitioner,
Appellant,
 
vs.
 
David Clayton Birchard, Jr.,
Respondent.

 

Filed September 9, 2003

Reversed and remanded

Wright, Judge

 

Stearns County District Court

File No. F6983203

 

 

Kimberly Dawn Jagaraj, 14824 Autumn Place, Burnsville, MN  55306 (pro se appellant)

 

David Clayton Birchard, Jr., 6700 West Old Shakopee Road, Suite 129, Bloomington, MN  55438 (pro se respondent)

 

            Considered and decided by Wright, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In this child-support dispute, appellant-mother argues that respondent-father has unjustifiably self-limited his income, warranting the imputation of additional income to him, and that the district court's findings do not support the child-support award.  We reverse and remand.

FACTS

 

The marriage of appellant Kimberly Birchard (now known as Kimberly Jagaraj) and respondent David Birchard was dissolved on September 23, 1998.  Jagaraj was awarded sole physical custody of the parties' two children.  The district court ordered Birchard to pay child support in the amount of $766 per month, based on a monthly net income of $2,222.  At the time of the dissolution, Birchard was employed as a senior art director at an advertising agency, where he earned an annual gross income of $46,000.  Birchard's monthly child-support obligation was subsequently increased to $782.50 in November 2001.

Birchard was terminated from his employment shortly thereafter; and he moved to decrease his child-support obligation on March 19, 2002.  Jagaraj opposed the motion, arguing for imputation of income because Birchard was voluntarily unemployed or underemployed, he had not looked for employment during the period between November 2001 and February 2002, and he was intentionally concealing income from work as a freelance graphic designer and disc jockey.

            In his May 6, 2002, order, the child support magistrate (CSM) found that Birchard was limiting his job search to senior positions in graphic design and that he had the ability to do freelance work.  The CSM ordered Birchard to pay monthly child support of $338.  Jagaraj moved for review under Minn. R. Gen. P. 376.01, again arguing for imputation of income because Birchard was voluntarily underemployed.  The district court later amended the CSM's order to include a finding that Birchard was underemployed and ordered a review hearing before a CSM. 

            At a review hearing on October 4, 2002, Birchard testified that he was employed as a sales clerk at a General Nutrition Center (GNC), where he worked between 30 and 35 hours per week and was paid $7 per hour.  Birchard testified that, after diligently searching for a graphic-design position without success, he decided to change his career and work at GNC.  Birchard tendered a list of jobs he claims to have sought.  Birchard stated that, although he was happy with his career change, he would continue his job search for a graphic-design position.  Jagaraj submitted newspaper advertisements from June through September 2002 containing compensation and other information for graphic-design positions.

            The CSM's October 7, 2002, order provides, in pertinent part:  

[Birchard] is employed at GNC (General Nutrition Center)     . . . .  He found this job only after unemployment compensation was exhausted.  [Birchard] is still searching for suitable employment in his field of graphic arts, but only looks by Internet and applies only by e-mail.  He provided no evidence of utilizing other methods such as paper applications, in-person applications or other traditional and more effective application methods.  He is also concentrating his search in the graphic arts field in positions comparable to his prior job, rather than a more wide-ranging search in the graphic arts field.  [Birchard] is voluntarily underemployed. 

 

. . . .

 

[Birchard] has the ability to earn 50% of his prior income, or a net monthly income of $1305. 

 

Based on his findings, the CSM concluded that there had been a substantial change rendering the existing order unfair and set Birchard's child-support obligation at $392 per month.  This appeal followed. 

D E C I S I O N

 

When a party appeals directly from a CSM's decision without moving for review under Minn. R. Gen. Pract. 376.01, our scope of review is limited to whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and judgment.  See Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001).  We nevertheless apply the same standard of review as we would apply on appeal from the district court's child-support determination.  See Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  Accordingly, factual findings will not be disturbed unless they are "clearly erroneous."  Minn. R. Civ. P. 52.01. 

A finding is "clearly erroneous" if the reviewing court is "left with the definite and firm conviction that a mistake has been made."  When determining whether findings are clearly erroneous, the appellate court views the record in the light most favorable to the trial court's findings.  Also appellate courts defer to trial court credibility determinations.

 

Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotations and citations omitted).  Factual findings are not clearly erroneous simply because "the record might support findings other than those made."  Id. at 474.  Additionally, because Birchard did not file a brief, we will decide the merits of this case pursuant to Minn. R. Civ. App. P. 142.03.

In order to determine whether a modification of child support is warranted, the CSM was required to determine Birchard's income.  See Minn. Stat. §§ 518.551, subd. 5 (requiring income determination when setting child-support obligation), .64 (2002) (requiring application of section 518.551, subd. 5 when modifying child support).  Income is defined as "any form of periodic payment to an individual."  Minn. Stat.          § 518.54, subd. 6 (2002).  "The key word in the definition is ‘periodic.'"  Herrley v. Herrley, 452 N.W.2d 711, 714 (Minn. App. 1990).  Periodic payments are regular payments to an individual in relatively fixed intervals.  Id. at 713-14 (citing examples such as wages, workers' compensation, unemployment benefits, annuity, and retirement benefits). 

Jagaraj argues that the CSM erred by failing to consider income Birchard received from his work as a freelance graphic artist and disc jockey.  The record clearly establishes, however, that this work and the compensation he received for it were irregular.  Birchard testified that he worked as a disc jockey "once in a while."  Furthermore, while the CSM found that Birchard has the ability to perform freelance graphic-arts work, the record establishes that Birchard worked only three or four freelance jobs within a one-year period.  Thus, the CSM did not err in declining to include Birchard's compensation for this work in the computation of Birchard's income.  See Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986) (affirming district court's refusal to include bonus income in support obligor's income for support purposes where existence and amount of bonuses were irregular).

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).  A district court must impute income for the purpose of calculating child support, however, if it finds the obligor is voluntarily unemployed or underemployed.  Minn. Stat. § 518.551, subd. 5b(d) (2002); Putz v. Putz, 645 N.W.2d 343, 348 (Minn. 2002).  Imputed income is an estimate of earning ability based on the obligor's earnings history, education, job skills, and the "availability of jobs within the community for an individual with the parent's qualifications."  Minn. Stat. § 518.551, subd. 5b(d).  The district court must consider all of the statutory factors when imputing income.  Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn. App. 1996).  Income may not be imputed if the obligor's unemployment or underemployment is either temporary and will ultimately lead to an increase in income or represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.  Id. at 728-29; Putz, 645 N.W.2d at 348.

The CSM and district court determined that Birchard was voluntarily underemployed.  The CSM then imputed a monthly net income of $1,305 based on his finding that "[Birchard] has the ability to earn 50% of his prior income."[1]  After a careful review, we conclude that the record does not support this finding.  Birchard earned approximately $46,000 when he was terminated from his position as a senior art director.  He was subsequently employed as a graphic-design artist, earning approximately $40,000 annually.  Depending on which figure the CSM used, 50 percent of Birchard's prior earnings is either $20,000 or $23,000 annually.  Jagaraj introduced numerous advertisements for graphic-design positions.  Birchard also introduced several pages of graphic-artist positions for which he purportedly applied.  The starting salaries for these positions generally ranged from $28,000 to $35,000, which do not coincide with the CSM's conclusion that Birchard had the ability to earn 50 percent of his prior earnings.  Moreover, the CSM did not make the statutorily required findings as to Birchard's earnings history, education, job skills, or the availability of local graphic-design positions.  We, therefore, remand this case with directions to consider and make findings as to all statutorily required criteria for imputing Birchard's income.    

Jagaraj also argues that the CSM erred by failing to impute income retroactively to July 2002, the date when the district court determined that Birchard was voluntarily underemployed.  Absent circumstances not argued here, modification of child support "may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification."  Minn. Stat. § 518.64, subd. 2(d).  The decision to apply a modification retroactively rests within the broad discretion of the district court.  Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999).  As such, a modification of child support will not be reversed absent a clear abuse of that discretion.  Johnson v. Johnson, 304 Minn. 583, 584, 232 N.W.2d 204, 205 (1975). 

Here, Birchard served his motion for modification in March 2002.  On May 9, the CSM decreased his child-support obligation from $782.50 to $338 per month.  The district court then amended the CSM's order to find that Birchard was voluntarily underemployed and ordered review hearings to occur in July and October 2002.  In October, the CSM adjusted Birchard's child-support obligation to $392 per month.  As Jagaraj opposed any modification, she did not seek its retroactive application when she appeared before the CSM.  Moreover, a retroactive decrease in Birchard's child-support obligation would inure to Jagaraj's detriment.  The record establishes no basis for concluding that the CSM's decision to award the modification prospectively was a clear abuse of discretion.  The decision to modify Birchard's child-support obligation prospectively was well within the CSM's discretion. 

Reversed and remanded.

 

 

 

[1]  Neither the district court nor the CSM found that Birchard made a bona fide career change.