MICHEALS v. MICHEALS

UNPUBLISHED OPINION

HALBROOKS, Judge

Appellant challenges the district court's order denying his motion to modify child support, arguing that the district court erred in affirming the child support magistrate's (CSM) order, the record does not support the finding that he is voluntarily underemployed, the amount of income imputed was excessive and based on gifts from his significant other, and he has shown the substantial change in circumstances required for a modification of support. Appellant also questions whether the CSM had jurisdiction to hear this matter. Because we conclude that the district court did not abuse its discretion, we affirm.

FACTS

Appellant Jeffrey Micheals and respondent Melony Micheals married in 1985 and had two children. When their marriage was dissolved in 1997, they were granted joint legal custody of the children, while sole physical custody was granted to respondent. Based upon an imputed net monthly income of $1,000, appellant was ordered to pay child support in the amount of $300 per month. Due to cost-of-living adjustments and motions to modify, the support award has been modified a number of times in the years between the dissolution and this appeal.

Over the past five years, appellant has been irregularly employed, mostly in the transportation industry. He has worked as a flight attendant for American Trans Air, Sun Country Airlines, and Champion Air; in management for Sun Country Airlines; and as a bus driver for Greyhound Bus Lines. Appellant moved to modify child support in 2001, after Sun Country Airlines underwent restructuring and he was reassigned from a management position to a flight-attendant position. That motion spawned several review hearings and changes to the support obligation:

• In November 2001, appellant's obligation was modified to $233 per month, based on his net monthly income of $864.52 as a flight attendant with Sun Country Airlines. Then, in March 2002, when appellant began receiving unemployment benefits, support was ordered at $342 per month, based on his net monthly income of $1,140.

• In May 2002, the obligation was reduced to $0, based upon appellant's net monthly income of $1,137 and the CSM's determination that a downward deviation from the child-support guidelines was warranted based upon the CSM's finding that the children spent one-half of their time with appellant.

• That order was reviewed by the district court, and because there was no evidence in the record supporting the finding that the children spent one-half their time with appellant, the matter was remanded to the CSM and support was set at $138 per month, based upon an imputation of minimum wage income and a resulting net monthly income of $724.

• In December 2002, appellant's child-support obligation was modified to $263 per month, based on appellant's net monthly income of $937.62 from his position as a reserve flight attendant.

• Finally, in June 2003, child support was ordered at $586 per month. That amount was based upon evidence that appellant provided regarding his employment and ability to earn a net monthly income of $2,234.33 as a Greyhound bus driver. Guideline support for that net monthly income was $670.30 per month, but support was set at $586 because the obligation was $586 per month when the modification was originally requested, and there was no motion to increase before the court.

In March 2004, appellant again moved to modify his support obligation, requesting a reduction in his monthly payment because he was receiving unemployment compensation after being laid off from his job with Greyhound. Following a hearing in April 2004, the CSM found that appellant was unemployed after being laid off in March 2004 and that appellant expected to be rehired at Sun Country Airlines in September 2004. Based upon unemployment compensation that gave appellant a net monthly income of $1,330, the CSM ordered appellant to pay child support in the amount of $399. The CSM also ordered a review hearing to determine appellant's financial circumstances and ongoing support obligations.

The review hearing was held before a CSM in September 2004. Appellant testified, and the CSM found, that appellant's unemployment benefits had ended in May 2004, and that appellant had not secured regular employment since then. Appellant testified that he worked for cash for friends and that he would be recalled as a flight attendant with Sun Country on December 1, 2004, with six days of training to occur in November. When the court asked whether appellant was currently looking for work, he responded, "It's hard when I have recall, with Sun Country. . . . I've been trying to get by with little odds and ends jobs, but they've been kind of falling apart, due to various reasons." When the court asked whether appellant had been looking for temporary employment, appellant said, "I haven't really pursued that option. I suppose I should."

Appellant testified that beginning December 1, 2004, when he was to return to employment as a reserve flight attendant, he would be earning a gross monthly income of $1,643.60 per month, an amount equal to $23.48 per hour with a guaranteed number of 70 hours per month. He indicated that his paycheck would be reduced by 10% for union dues and $25 every two weeks for uniforms. He also testified that when he had previously worked as a reserve flight attendant, he worked only the 70-hour reserve guarantee.

In October 2004, the CSM issued an order reinstating the prior child-support amount of $586 per month based upon a finding that "[t]he [appellant] has no physical or mental disability that would prevent him from working full-time. He has made insufficient effort to find suitable employment, is voluntarily under-employed and has the ability to earn an income sufficient to meet his prior support obligation of $586 per month."

Appellant moved for review of the CSM's order and submitted a transcript of the hearing to the district court. Appellant also requested an amended order, a new hearing, and permission to submit information that he contends the CSM did not consider. Respondent filed a response, opposing the motion for review and requesting that the district court uphold the magistrate's decision.

After reviewing the order, the district court found no evidence to support its amendment. Thus, in January 2005, the district court filed an order denying appellant's motion and affirming all provisions of the October 2004 findings of fact, conclusions of law, and order. This appeal follows.

DECISION

The district court has broad discretion in deciding whether to modify child support. Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). This court reviews a district court's decision affirming a CSM's order under an abuse-of-discretion standard. Davis v. Davis, 631 N.W.2d 822, 826 (Minn.App. 2001). A district court abuses its broad discretion if it makes a "clearly erroneous conclusion that is against the logic and the facts on [the] record." Putz, 645 N.W.2d at 347.

I. Appellant's Child-Support Obligation

Appellant generally assigns error to the district court's denial of his motion for review and confirmation of the CSM's order dated October 2004, contending specifically that: (1) the district court erred in confirming several provisions of that order; and (2) the record does not support the finding that he is voluntarily underemployed, the amount of income imputed to him is excessive and based on gifts from his significant other, and he has shown the substantial change in circumstances required for a modification of support.

A. Affirmation of the CSM's order

First, appellant argues that the district court clearly erred in finding that he was "previously ordered to pay ongoing child support of $586 per month based on his income as a flight attendant." The record indicates that appellant's previous child-support order of $586 was, in fact, based on his income earned in a flight-attendant management position. But appellant bears the burden of demonstrating that an error is prejudicial. Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn.App. 1993), review denied (Minn. June 28, 1993). And "we 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). The district court's failure to clarify that support was awarded based on appellant's flight-attendant management position is harmless error and is not an abuse of discretion.

Second, appellant contends that the district court erred by finding that at the time of the June 2003 order, he "was employed by Greyhound Bus and received a net monthly income [of] $2,234." Appellant now asserts that his employment began later and that the net monthly income figure adopted from the evidence he presented at the May 2003 hearing is in error. Notably, appellant never moved for review of this point when the June 2003 order was filed, nor did he seek review when the findings were repeated in the May 2004 order. An appealable order is final upon expiration of the deadline for appeal, even if wrong. Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966). The district court did not abuse its discretion by failing to address appellant's claims regarding these findings more than a year after they could have been appropriately reviewed.

Third, appellant argues that the district court should have allowed him to submit information that the CSM refused to consider and should have granted his request for a new hearing based upon that purported refusal to accept the evidence. Specifically, appellant contends that the district court abused its discretion by refusing to consider documents that were available to substantiate his claims. During the September 2004 hearing, appellant testified that he had in his possession documents regarding unemployment compensation, his future salary at Sun Country, and his child-support payment history. Appellant testified about the contents of each relevant document but never introduced the documents into evidence. Notably, the findings of fact are wholly consistent with appellant's testimony concerning the contents of the documents that he alleges were not considered. Because appellant's argument lacks factual support and because appellant never properly introduced the documents, there was no abuse of discretion, and we will not disturb the district court's order. See Spooner v. Spooner, 410 N.W.2d 412, 413 (Minn.App. 1987) (stating that in a proceeding to determine child support, a party has a duty to supply financial information to the court in a proper fashion).

Finally, a court is not required to hold an evidentiary hearing on a motion for modification of support. Minn. Stat. § 518.64, subd. 2(f) (2004). Consequently, there was no abuse of discretion in the district court's denial of appellant's motion for a new hearing.

B. Voluntary underemployment, imputation of income, and modification

First, appellant argues that the district court clearly erred by finding that appellant is voluntarily underemployed. Ordering the reinstatement of child support at the rate of $586 per month, the district court found that "[appellant] has no physical or mental disability that would prevent him from working full-time. He has made insufficient efforts to find suitable employment, is voluntarily under-employed and has the ability to earn an income sufficient to meet his prior support obligation of $586 per month."

A parent's responsibility for child support is generally based on net income and ability to pay. Minn. Stat. § 518.551, subd. 5 (2004); Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn.App. 1991). But Minnesota law dictates the imputation of income where unemployment or underemployment is voluntary. Minn. Stat. § 518.551, subd. 5b(d). It follows that evidence of a choice in the matter of underemployment is necessary in order for a court to impute income to a child-support obligor. Murphy v. Murphy, 574 N.W.2d 77, 82 (Minn.App. 1998). Even where a parent has made a choice to be unemployed or underemployed, he or she "is not considered voluntarily unemployed or underemployed upon a showing by the parent that the . . . 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). It is appellant's burden to prove that he is not voluntarily underemployed. Id. Appellant did not meet that burden here.

While appellant's initial unemployment after being laid off from Greyhound was not voluntary, his testimony clearly demonstrates that his continued unemployment and underemployment is voluntary. The court found that appellant was laid off from his job at Greyhound in March 2004, that his unemployment benefits ended in May, and that he had not found regular employment since then. His own testimony indicates that he was not looking for meaningful employment while he waited for the Sun Country job to become available. When asked whether he was currently looking for work, he replied that "[i]t's hard when I have recall, with Sun Country." Appellant further testified that he had not looked for temp jobs, he had worked for friends for cash, and he had been "trying to get by with little odds and ends jobs."

Further, appellant did not demonstrate that his voluntary decisions not to seek employment and to work as a reserve flight attendant did not constitute voluntary underemployment under the two circumstances specified in Minn. Stat. § 518.551 subd. 5b(d). While he asserted and offered documentation purportedly confirming that he would rejoin Sun Country Airlines as a reserve flight attendant, he testified, and the court found, that he would be paid for only 70 hours of work per month, earning a gross monthly income of $1,643.60. That amount is clearly lower than the net monthly income of $2,234 upon which the support order he seeks to modify is based. He testified that he hopes to regain his previous nonunion management position, but provided no evidence that he will actually obtain it or that he made a reasonable effort to replace it. He therefore failed to demonstrate that his intended future employment will result in an increase in income. See Putz, 645 N.W.2d at 353 (stating that an obligor claiming that underemployment is temporary and will lead to increased earnings must provide evidence showing the certainty of increased earnings). Finally, appellant does not argue that his planned future employment with Sun Country Airlines is a bona fide career change.

Because appellant failed to demonstrate that his underemployment will lead to an increase in income or that either his unemployment or his employment with Sun Country is a bona fide career change, the finding that appellant was voluntarily underemployed was not "against the logic and the facts on [the] record." Putz, 645 N.W.2d at 347.

Appellant also argues that the district court erred by imputing income to him without considering his prior earnings history, education, job skills, and the availability of jobs in the community, as required by Minnesota law. If a court finds that a parent is voluntarily unemployed or underemployed, child support must be calculated based on imputed income. Minn. Stat. § 518.551, subd. 5b(d). Imputed income is defined as the parent's earning ability based on the parent's past earnings history, education, skills, and the availability of jobs within the community for a person with the parent's qualifications. Id. There is a "strong state policy of assuring that children have the adequate and timely economic support of their parents." Schaefer v. Weber, 567 N.W.2d 29, 33 (Minn. 1997). "Imputing income to a voluntarily-unemployed obligor furthers the state's interest because it prevents parents who choose to limit their income from escaping their duty to support their children." Putz, 645 N.W.2d at 352.

In imputing income to appellant, the district court found that appellant "has the ability to earn an income sufficient to meet his prior support obligation of $586 per month." The court also concluded that such support "represents a fair contribution by the [appellant], fairly reflects the needs and financial circumstances of all parties and is based upon a consideration of the factors set out in Minn. Stat. § 518.551 subdivision 5(a)-(k)."

As noted, in order to impute income, the district court must consider appellant's prior earnings history, education, job skills, and the availability of jobs within the community for individuals with his qualifications. Kuchinski v. Kuchinski, 551 N.W.2d 727, 729 (Minn.App. 1996) (quoting statute). While the court did not make specific findings on each of these factors, income was nonetheless properly imputed on this record. The court specifically concluded that appellant has the ability to earn the imputed income and that support would be fair and reflective of appellant's financial circumstances. Further, the imputed income is derived from information contained in the record, information that reflects appellant's demonstrated earning capacity: his history, his skills and qualifications, and his proven ability to secure employment in the local transportation industry. Thus, the court's imputation of income to appellant was not excessive and was not an abuse of discretion.

Appellant further argues that respondent testified regarding the material support that appellant has purportedly received from his significant other and that the district court erred by considering these gifts as income for the purpose of calculating support. But there is no evidence that the CSM considered the alleged gifts in its income calculation. Further, appellant has raised these issues for the first time in his brief to this court. We decline to consider these issues, as we generally do not consider those matters that are not raised in the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Finally, appellant asserts that the district court abused its discretion in denying his motion to modify support because he established a substantial change of circumstances that rendered his support order unreasonable and unfair. When deciding whether to modify child support, the district court must determine whether the movant has met his burden of showing a substantial change in circumstances that makes the original award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (2004); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

By concluding that appellant is voluntarily underemployed and by properly imputing income resulting in a support order commensurate with the order in effect prior to appellant's motion for modification, the court implicitly determined that appellant failed to meet his burden. While there has been a change of circumstances in appellant's employment status, the circumstances supporting the district court's proper determination of voluntary underemployment are wholly incompatible with the assertion that the resulting support obligation is somehow unreasonable or unfair. The district court did not abuse its discretion in its implicit determination that appellant has not met his burden of demonstrating a substantial change of circumstances that renders the existing order unreasonable and unfair.

II. Jurisdiction

Appellant questions whether the CSM had jurisdiction to hear this matter, but presents no argument or legal authority to support his contention. An assignment of error in a brief that is based upon a "mere assertion" and is not supported by any argument or authority is waived unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn.App. 1997) (quoting Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). Because appellant has not supported this question with adequate briefing or analysis, we decline to reach this issue.

Affirmed.