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State ex rel. Kandiyohi County v. Murphy

Court of Appeals of Minnesota

July 29, 2013

State of MN ex rel Kandiyohi County, petitioner, Respondent,
v.
Justin Benedict Murphy, Appellant. Shannon Lee Barrett, petitioner, Respondent,

UNPUBLISHED OPINION

Kandiyohi County District Court File No. 34-FA-11-408

Jennifer Kurud Fischer, Kandiyohi County Attorney, John L. Kallestad, Assistant County Attorney, Willmar, Minnesota (for respondent Kandiyohi County).

Shannon Lee Barrett, Willmar, Minnesota (pro se respondent).

John E. Mack, Mack & Daby P.A., New London, Minnesota (for appellant).

Considered and decided by Hudson, Presiding Judge; Schellhas, Judge; and Bjorkman, Judge.

SCHELLHAS, Judge.

Appellant-father challenges the district court's denial of his request to modify the child-support magistrate's order that he pay retroactive child support and ongoing child support based on income imputed to him, arguing that the court (1) abused its discretion by ordering retroactive child support; (2) clearly erred by finding that appellant-father was voluntarily unemployed as a basis for imputing income to him; and (3) abused its discretion by failing to make a parenting-time adjustment. Appellant-father also makes other arguments not argued in the district court.

We affirm the district court's retroactive child-support order, but, because we conclude that the child support magistrate erroneously imputed income to appellant-father, we reverse the child-support obligation that is based on imputation of income to appellant-father and remand for redetermination of father's child-support obligation during his period of unemployment and on an ongoing basis.

FACTS

In November 2011, respondent State of Minnesota moved a child support magistrate (CSM) to establish the retroactive and ongoing child-support obligations of appellant Justin Murphy (father) and respondent Shannon Barrett (mother) for their 13-year-old child, K.M., who resided with mother. Kandiyohi County noticed its intervention.

At a hearing before a CSM on December 2, mother and father testified and submitted evidence. The record reflects that, at the time of the hearing, mother was a hospital nurse earning $5, 324 per month, based on ".8" or ".9" time, and father was unemployed and receiving unemployment benefits of $1, 909 per month. On April 6, 2011, father was terminated from his position in Chicago as a financial mutual-fund salesperson after he requested permission to relocate to Minnesota. While employed, father earned $250, 000 annually; he received approximately $300, 000 in severance pay upon his termination. Father relocated to Minnesota to be closer to K.M.

Father has a college degree and occupational licensing. He testified that he was doing everything that he possibly could to find employment in his competitive market; he touched base with 18 recruiters; he went "to all [his] contacts and resources"; he participated in at least seven interviews, including two "major interviews"; and, at the time of the hearing, he was in "the fifth interview process with two . . . flights out to the home office." Father submitted corroborative documentary evidence of his employment pursuits, and mother acknowledged, through her counsel, that father was "doing a diligent job search." Mother challenged father's good faith regarding his unemployment because of his relocation request, noting that his relocation request precipitated his employment termination and that the timing of his relocation request was suspicious because father's employer would have approved his relocation request two years earlier.

On December 16, the CSM found that father was voluntarily unemployed or underemployed and that he could earn $80 per hour or $13, 760 in potential monthly income and ordered him to pay $9, 834.50 in past child support for the period from January 1, 2010 to December 31, 2011. Based on father's potential monthly income of $13, 760, ...


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