Marriage of Devault v. Waller

OPINION

KALITOWSKI, Judge.

Appellant Timothy Waller challenges the trial court’s decision refusing to require respondent to pay child support.

FACTS

The parties’ 19-year marriage was dissolved by stipulation in 1989. Appellant received custody of the parties’ four children from September 25 to the end of each school year. Respondent, who had moved to Arizona, had custody each summer, except for a three-week period during which appellant was allowed to take a vacation with the children.

Appellant’s support obligation was set at $450 for June, July and August and $500 for September with the proviso that respondent spend $250 on the children’s school needs. Appellant’s support obligation for the month in which he took vacation with the children was set at $300. Guideline support for an obligor with appellant’s net monthly income of $1,600 would have been $624. See Minn.Stat. § 518.551, subd. 5(a) (1988). By the terms of the stipulation respondent did not have to pay support because her $500 net monthly income was deemed minimal, and because she paid visitation expenses and waived maintenance.

In 1991, respondent remarried and moved back to Minnesota to work at her new husband’s resort. Evidence was presented to the trial court to indicate respondent received no wages for her work on the resort and the resort lost $9,062 in 1991. In March 1992, alleging a substantial increase in appellant’s income, respondent moved to increase appellant's support obligation to the guideline amount. Appellant moved for guideline support from respondent during the school year alleging respondent could have a $925 net monthly income if she took outside employment rather than working at her husband’s resort.

The same trial judge who presided at the dissolution found appellant’s net monthly income to be $2,077 and increased his support obligation to the guideline level of $727 per month. Also, the court deleted the provision allowing reduced support when respondent took vacation with the children. The trial court further denied appellant’s motion for support from respondent stating respondent “has shown no bad faith in making the employment choices she has made,” and observing:

[The] circumstances [originally deemed sufficient for respondent to avoid a support obligation] have not changed as [appellant] continues to have a substantial income sufficient to provide for the needs of the children while [respondent] continues to have a minimal income to provide for her needs.

Appellant challenges the trial court’s ruling.

ISSUE

Did the trial court abuse its discretion in determining that respondent did not have the ability to pay child support?

ANALYSIS

Under Minn.Stat. § 518.64, subd. 2(a) (Supp.1991), a child support obligation *94may be modified upon a showing of substantial change in either party’s circumstances. Our review of a support obligation

is limited to looking at whether the trial court abused its discretion in the sense that its order was arbitrary or unreasonable or without evidentiary support.

Compart v. Compart, 417 N.W.2d 658, 661 (Minn.App.1988).

The trial court found respondent works with her husband at the resort he owns and the resort business netted a loss of $9,062 in 1991. Based on this finding, the court concluded respondent had a minimal income to provide for her needs and therefore was not required to pay child support. There is evidence in the record to support the trial court’s determination that respondent continues to lack the ability to pay child support. Therefore, we find no abuse of discretion.

Appellant contends the trial court should have imposed a support obligation on respondent based on her earning capacity. However,

earning capacity is not an appropriate measure of income unless it is impracticable to determine an obligor’s income or the actual income is unjustifiably self-limited.

County of Morrison v. Watland, 448 N.W.2d 71, 74 (Minn.App.1989).

The trial court specifically found respondent has “a minimal income to provide for her needs.” Thus, income determination is not impracticable. Further, the trial court explicitly stated that respondent’s employment choices exhibited no bad faith. Because we defer to trial court credibility determinations, see Minn.R.Civ.P. 52.01, we cannot say the trial court abused its discretion by refusing to consider respondent’s earning capacity to set her support obligation.

Both parties have requested attorney fees for this appeal. Because we determine that an award of attorney fees is not necessary to enable them to assert their rights we deny their motions for attorney fees. See Minn.Stat. § 518.14 (1990).

DECISION

The trial court did not abuse its discretion in denying appellant’s motion to require respondent to pay child support.

Affirmed.