In re the Matter of: Juan Carlos Carreon v. Michelle Sorensen, Steele County, intervenor ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0528
In re the Matter of: Juan Carlos Carreon, petitioner,
Appellant,
vs.
Michelle Sorensen,
Respondent,
Steele County, intervenor,
Respondent.
Filed December 7, 2015
Reversed and remanded
Stauber, Judge
Steele County District Court
File No. 74FA14184
Catherine Brown Furness, Catherine Brown Furness Law Office, Owatonna, Minnesota
(for appellant)
Michelle Sorensen, Owatonna, Minnesota (pro se respondent)
Douglas L. Ruth, Steele County Attorney, Julia A. Forbes, Assistant County Attorney,
Owatonna, Minnesota (for respondent)
Considered and decided by Smith, Presiding Judge; Stauber, Judge; and Klaphake,
Judge.

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
STAUBER, Judge
Appellant father challenges the district court’s calculation of respondent mother’s
gross income for the purpose of child support, arguing that the district court erroneously
failed to consider portions of respondent’s income as “gross income” under Minn. Stat.
§ 518A.29 (2014), and clearly erred by not imputing potential income to respondent, who
works part time. Because the record shows that respondent receives regular, periodic pay
in addition to her base wage and the district court’s decision not to impute income is
unsupported by the record, we reverse and remand.
FACTS
The parties are the parents of two minor children,1 with respondent Michelle
Sorensen having sole physical custody. In March 2014, appellant Juan Carlos Carreon
filed a petition requesting, among other things, a child-support modification. The parties
stipulated to a referral of child-support issues to a child-support magistrate (CSM).
The CSM heard the child-support issues in October, 2014, and subsequently found
that there was a substantial change in circumstances that rendered the existing support
award unreasonable and unfair, thus permitting child-support modification. The CSM
found that Sorensen’s gross income from her registered-nurse position was equivalent to
her regular hourly wage times 24 hours per week. Overtime and shift differentials were
excluded from her income. Sorensen testified that she works 24 hours per week and is a
“.6 employee.” She also testified that she recently requested a reduction to “.5 time” in
1
Respondent has a third child who is not included in consideration of this matter.
2
order to have additional time to care for the children. She admitted that she has not
requested additional hours and only works extra shifts when she is mandated to do so.
Respondent also alleges that, on her current schedule, additional hours would not be
available to her.
The CSM ordered Sorensen to continue providing medical and dental insurance
for the minor children, and ordered Carreon to pay basic support, child-care support, and
medical support. Carreon moved the district court for review of the child-support order,
asserting that the CSM improperly calculated Sorensen’s income. The district court
denied the motion for review with regards to Sorensen’s income after reviewing a
transcript of the October 2014 hearing. The district court determined that it would be
“impossible” for the CSM to determine whether Sorensen regularly works shift
differentials to support including the extra pay in her income calculation. The court also
concluded that registered nurses “customarily work less than 40 hours per week as full
time employees” and that therefore the CSM did not err by declining to impute additional
income to Sorensen.
This appeal follows.
DECISION
We review a CSM’s ruling that has been reviewed by the district court under the
same standard as if the decision originated in the district court. Ludwigson v. Ludwigson,
642 N.W.2d 441, 445-46 (Minn. App. 2002). Child-support modification is generally
reviewed for an abuse of discretion, and we will reverse only if the district court resolved
the matter in a manner that is “against logic and facts on the record.” Haefele v. Haefele,
3
837 N.W.2d 703, 708 (Minn. 2013) (quotation omitted). The district court abuses its
discretion when it improperly applies the law to the facts. Ver Kuilen v. Ver Kuilen, 578
N.W.2d 790, 792 (Minn. App. 1998). A finding is clearly erroneous if we are “left with
the definite and firm conviction that a mistake has been made.” Vangsness v. Vangsness,
607 N.W.2d 468, 472 (Minn. App. 2000) (quotation omitted).
I. Calculation of Gross Income
We will affirm the district court’s findings determining income for child-support
purposes if the findings “have a reasonable basis in fact and are not clearly erroneous.”
Ludwigson, 642 N.W.2d at 446 (quotation omitted); see also Schisel v. Schisel, 762
N.W.2d 265, 272 (Minn. App. 2009) (holding that determinations regarding parents’ net
incomes for child-support purposes are reviewed for clear error). But the application of
the child-support statute to determine gross income is reviewed de novo. Haefele, 837
N.W.2d at 708. Gross income is:
any form of periodic payment to an individual, including, but
not limited to, salaries, wages, commissions, self-employment
income[,] . . . workers’ compensation, unemployment
benefits, annuity payments, military and naval retirement,
pension and disability payments, spousal maintenance
received under a previous order or the current proceeding,
Social Security or veterans benefits provided for a joint
child[,] . . . and potential income under section 518A.32.
Minn. Stat. 518A.29(a). When statutory language is plain and unambiguous, we look
only at the language in the statute to determine legislative intent. Haefele, 837 N.W.2d at
708. “Under the plain language of [518A.29(a)], the relevant inquiry in determining
whether money or a thing of value is gross income is whether it is ‘a periodic payment to
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an individual.’” Id. (quoting Minn. Stat. 518A.29(a)). “Periodic” generally means
“marked by repeated cycles or happening or appearing at regular intervals.” Id. at 710.
Carreon contends that the district court erred by calculating Sorensen’s gross
income based only on her base pay multiplied by the number of hours worked, and
excluding her time off, shift differentials, specialty pay, and other pay designations. The
record includes Sorensen’s recent paystubs, each representing a 14-day cycle. The
paystubs are broken down into vacation, holidays, and inservice pay, which are paid at
the same rate as regular hours, and overtime, shift differentials, and other premiums,
which are paid at an increased rate. The number of “regular” hours Sorensen works per
pay period varies, as do her shift differentials and other premiums. Thus, the gross
amount Sorensen earns varies. Her 2014 total gross pay as of July 4, 2014, was
$30,742.21, an average of $5,105.04 per month.2 But the CSM and the district court
calculated Sorensen’s gross income for the purposes of child support at $3,264 per
month.3 The CSM excluded Sorensen’s overtime and shift differential pay. The district
court also declined to address the wage differential because it determined the premiums
were not sufficiently regular to be included. Although the categories in which Sorensen
earned wages beyond her regular pay vary between pay periods, she received some form
of additional compensation every pay period. Further, Sorensen’s regular pay often
included more than 48 hours of work per pay period. Although Sorensen testified that
she “normally” works 24 hours per week, the paystubs demonstrate significant additional
2
She earned $30,742.21 in 6.13 months.
3
This amount is the product of her $31.61 per hour base wage times 24 hours per week
times 4.33 weeks per month.
5
income. Thus, the hours over 24 per week and the additional differential payments
constitute “periodic” pay under the statute and should have been considered part of
Sorensen’s gross income for purposes of calculating child support.4
Carreon further challenges the exclusion of pay that is labeled “overtime” on
Sorensen’s paystub. “Gross income does not include compensation received by a party
for employment in excess of a 40-hour week,” provided certain other factors are met.
Minn. Stat. § 518A.29(b). As Sorensen’s overtime pay was not for work over 40 hours
per week, it is not statutorily excluded from her gross income.
II. Imputation of Income
Carreon next argues that the district court erred by failing to impute additional
income to Sorensen after finding that she voluntarily worked fewer than 40 hours per
week. “If a parent is voluntarily unemployed, underemployed, or employed on less than
full-time basis, . . . child support must be calculated based on a determination of potential
income.” Minn. Stat. 518A.32, subd. 1 (2014). “‘[F]ull time’ means 40 hours of work in
a week except in those industries, trades, or professions in which most employers, due to
custom, practice, or agreement, use a normal work week of more or less than 40 hours in
a week.” Id. We review a factual finding on whether a party is voluntarily
4
We note that a court may consider average income as demonstrated by cash flow when
a party’s gross income varies significantly. See Veit v. Veit, 413 N.W.2d 601, 606 (Minn.
App. 1987) (concluding that the district court properly relied on average income where a
party’s income fluctuated based on the nature of his business and where the averaging
took into account those fluctuations and therefore more accurately measured gross
income than individual pay periods).
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underemployed for clear error. Welsh v. Welsh, 775 N.W.2d 364, 370 (Minn. App.
2009).
A parent who “stays at home to care for a child who is subject to the child support
order” is not necessarily voluntarily unemployed, underemployed, or employed on a less
than full-time basis.5 Minn. Stat. 518A.32, subd. 5 (Minn. 2014). Sorensen testified that
she needed to work fewer hours because the children’s homework was not completed
while they were in Carreon’s care. But the district court made no factual finding that
give credence to this testimony and in the absence of such a finding we cannot affirm on
this basis. See Putz v. Putz, 645 N.W.2d 323, 354 (remanding a child-support case for
reconsideration based on the inadequacy of findings).
5
A district court may consider the following caretaker factors in determining whether a
parent who stays home to care for a child who is the subject of the support order is
voluntarily unemployed, underemployed, or employed on a less than full-time basis:
(1) the parties’ parenting and child care arrangements
before the child support action;
(2) the stay-at-home parent’s employment history,
recency of employment, earnings, and the availability of jobs
within the community for an individual with the parent’s
qualifications;
(3) the relationship between the employment-related
expenses, including, but not limited to, child care and
transportation costs required for the parent to be employed,
and the income the stay-at-home parent could receive from
available jobs within the community for an individual with
the parent’s qualifications;
(4) the child’s age and health, including whether the
child is physically or mentally disabled; and
(5) the availability of child care providers.
Minn. Stat. § 518A.32, subd. 5.
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The district court concluded that the CSM did not err by declining to impute
additional income to Sorensen. The only basis it provided for this conclusion is that
registered nurses “customarily work less than 40 hours per week as full time employees.”
But neither the record nor the district court’s order provide facts supporting this
conclusion. In fact, Sorensen testified that she was a part-time employee and admitted
that she only works extra hours when she is mandated to do so. Although Sorensen
testified that, based on the current schedule, she could not work additional hours, the
record is undeveloped as to how long the “current schedule” lasts, and Sorensen testified
that she has even requested fewer work hours. Because the district court’s finding that
registered nurses customarily work less than 40 hours per week is not supported by this
record, and the district court clearly erred by failing to include overtime and various
differentials in calculating support, we reverse and remand for further proceedings
consistent with our decision. On remand, whether to reopen the record shall be
discretionary with the district court.
Reversed and remanded.
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