In re the Marriage of: Elio Fumagalli, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-2018

In re the Marriage of: Elio Fumagalli, petitioner,
Appellant,

vs.

Stacy Lynn Fumagalli, n/k/a Stacy Lynn Duesterhoeft,
Respondent,
County of McLeod, intervenor,
Respondent.

Filed August 28, 2017
Affirmed
Reyes, Judge

McLeod County District Court
File No. 43-FA-08-1372

Elio Fumagalli, Sugar Lake, Texas (pro se appellant)

Stacy Lynn Duesterhoeft, Stewart, Minnesota (pro se respondent)

Michael Junge, McLeod County Attorney, Amy E. Olson, Assistant County Attorney,
Glencoe, Minnesota (for respondent county)

Considered and decided by Halbrooks, Presiding Judge; Reyes, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
In this child-support dispute, appellant -father argues that the district court
(1) misstated his and respondent-mother’s in comes; (2) used an incorrect division of
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parenting time when setting child support; (3) selected an incorrect effective date for
father’s reduced child-support obligation; and (4) failed to address his request that interest
stop accruing on his unpaid child support. We affirm.
FACTS
Appellant-father Elio Fumagalli and re spondent-mother St acy Lynn Fumagalli,
n/k/a Stacy Lynn Duesterhoeft, were divorced in February 2009. The parties were married
for seven years and had two children during the marriage. The judgment and decree
dissolving the parties’ marriage granted physical custody of the children to mother and set
father’s monthly child-support obligation at $1,382. Father was granted reasonable
parenting time pursuant to the terms of the judgment and decree.
In approximately February 2012, father be gan residing in New York. In April 2014,
the district court filed an order that eliminated father’s parenting time outside of Minnesota.
In May 2014, a child-support magistrate (C SM) granted McLeod County’s motion to
increase father’s child-support ob ligation to $2,282 per month, applying retroactively to
August 2013. Father is an engineer and ha s worked in that field for over 25 years.
Currently, father is unemployed.
In December 2015, father’s work projec t through Resources Global Professionals
(RGP) ended after two and one half years. Father began receiving unemployment benefits
from the state of New York in the amount of $1,840 per month in January 2016. Father’s
employment with RGP officially terminated in March 2016 after he was not assigned to a
new project within 90 days of the end of the previous project.
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In May 2016, father filed a motion to modify his child-support obligation from the
May 2014 order. At the hearing on father’s motion, father testified that he submits between
one and 20 job applic ations each week. Mother testified that she assists her sister in
operating a daycare and has done so since 2004. Mother further testified that she receives
30% of the daycare’s income pursuant to a verbal agreement with her sister. Mother also
agreed to have her income calculated at 150% of the mi nimum wage as it had been
calculated in past orders.
A CSM granted father’s May 2016 motion with modifications. For the months of
June 2016 and July 2016, father’s child-support obligation was reduced to $498 in light of
his unemployment benefits, which ended in July 2016 when father received the maximum
allotted. Starting August 1, 2016, father’s monthly child-support obligation was set at
$1,972. The CSM used father’s potential income in the child-support calculation based on
the determination that father failed to show a good-faith e ffort to obtain employment.
Father’s appeal follows.
D E C I S I O N
On appeal from a CSM’s order, this court applies the same standard of review that
applies to a district court order. Hesse v. Hesse, 778 N.W.2d 98, 102 (Minn. App. 2009).
The determination of whether to modify child support is within the CSM’s discretion. See
Putz v. Putz , 645 N.W.2d 343, 347 (Minn. 2002). A CSM abuses her discretion if her
decision is against logic and the facts on record. Id.
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Although the CSM granted father’s mo tion to modify child support with
modifications, father asserts that the CSM a bused her discretion. We address each of
father’s arguments below.
I. The CSM’s determination of father’s an d mother’s income s was not clearly
erroneous.
A CSM’s determination of income must be based in fact, and we review that
determination for clear error. Newstrand v. Arend , 869 N.W.2d 681, 685 (Minn. App.
2015) (quotation omitted), review denied (Minn. Dec. 15, 2015). Whether a parent is
voluntarily unemployed is also reviewed for clear error. Welsh v. Welsh, 775 N.W.2d 364,
370 (Minn. App. 2009). “A finding is clearly erroneous if the reviewing court is 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) (quotations omitted).
To determine the presumptive child-support obligation, a CSM must determine the
gross income of each parent. Minn. Stat. § 518A.34(a), (b) (20 16). “[G]ross income
includes . . . potential income under section 518 A.32.” Minn. Stat. § 518A.29(a) (2016).
“If a parent is voluntarily unemployed, undere mployed, or employed on a less than full-
time basis, . . . child suppor t must be calculated based on a determination of potential
income.” Minn. Stat. § 518A.32, subd. 1 (2016).
A. Father’s income
Father argues that the CSM’s finding on his income is clearly erroneous, his income
for the child-support calculation for August 2 016 and onwards should be $264, and the
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CSM erred by determining that father acted in bad faith when he s earched only for full-
time employment. We disagree.
Here, father has been unemployed since March 2016 and received unemployment
benefits from January 2016 to July 2016. Father remains unemployed, despite testifying
to submitting at least one and as many as 20 job applications per week. In addition, father
testified that he is not considering part- time positions because obtaining such a position
would negatively affect his future career potential. The CSM found that father has “made
minimal and undocumented efforts to find empl oyment” and that father was vague in his
description of his job search in the month leading up to the hearing. In light of these facts,
the CSM determined that father “has shown bad faith in not even considering less than full-
time employment.” The CSM furt her determined that father is “voluntarily unemployed
or underemployed” and used $10,000 as father’s potential monthly income starting August
2016.
Father asserts that the CS M should have requested fath er’s job-search records.
While pro se parties may receive some latitude, they are held to the same standards as
attorneys. Fitzgerald v. Fitzgerald, 629 N.W.2d 115, 119 (Minn. App. 2001). Father had
the opportunity to present his job-search re cords at the hearing, and he did not. See
Eisenschenk v. Eisenschenk , 668 N.W.2d 235, 243 (Minn. App. 2003) (“A party cannot
complain about a district court’ s failure to rule in [the pa rty’s] favor when one of the
reasons it did not do so is because that party failed to provide the district court with the
evidence that would allow the district court to fully address the question.”), review denied
(Minn. Nov. 25, 2003).
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The record reveals that father is capable of receiving a high salary as his 2014 and
2015 W2s show $131 ,561 and $132,193, respectively, as Medicare wages and tips.
Accordingly, the CSM’s determination that father is unemployed or underemployed was
not clearly erroneous, and the CSM did not e rr in using father’s pot ential income in the
child-support calculation. See Veit v. Veit , 413 N.W.2d 601, 605-06 (Minn. App. 1987)
(“Here, because appellant is unemployed, it is impracticable to determine her actual
income. Therefore, the trial court properly determined appellant’s earning capacity based
on her prior work history.”). In addition, the CSM’s determination that father’s efforts to
find employment were in bad faith is not clearly erroneous.
Citing to Haefele v. Haefele, 837 N.W.2d 703 (Minn. 2013), father also argues that
the CSM erred by requesting that father disclose his 401k assets, claiming that “assets are
not used to determine child support.” Father’s argument lacks merit. Haefele holds that a
parent’s income from joint ownership in a cl osely held corporation is included in the
parent’s self-employment or business-operation income. 837 N.W.2d at 711. This holding
does not support appellant’s assertion. Mo reover, when modifying child support, a CSM
must take into consideration “all earnings, in come, circumstances, and resources of each
parent, including real and personal property, but excl uding income from excess
employment of the obligor or obligee.” Minn. Stat. § 518A.43, subd. 1(1) (2016). Thus,
a CSM should consider a 401k when determ ining whether to m odify child support. 1

1 Father also argues that federal and Minnesota law limit the percentage of income that may
be garnished from his wages. Father did not make this argument to the CSM; therefore, it
is not properly before this court. Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).
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Kuronen v. Kuronen, 499 N.W.2d 51, 54 (Minn. App. 1993), review denied (Minn. June
22, 1993).
B. Mother’s income
Father argues that the CSM should have calculated mother’s annual income at
$49,000 based on her testimony at a March 2012 hearing, rather than setting mother’s
income at 150% of the minimum wage. We are not persuaded.
At the hearing on father’s motion to modify his child -support obligation from the
May 2014 order, mother testifie d that she receives 30% of the daycare’s income but the
daycare’s income was not provided. The CSM found mother’s income for the purpose of
calculating child support to be 150% of th e minimum wage, or $2,338 per month and
$28,056 per year, because there was insufficient information to determine mother’s actual
income. See Minn. Stat. § 518A.32, subd. 2(3) (2016).
Father asserts that the daycare receives $90,000 annually. Under this theory, wife’s
annual income would be $27,000. This figur e is inconsistent with husband’s claim that
wife’s income should be $49,000. Furthe r, wife’s 2014 and 2015 W2s show annual
incomes of $12,326 and $13,512, which correspond to monthly incomes of approximately
$1,027 and $1,126. The CSM’s decision to impute income to wife is to husband’s benefit
because the imputed value is greater than the income repor ted on wife’s W2 s and wife’s
income if it is calculated as 30% of the daycare’s income. Because the daycare’s income
has not been verified and mother testified that it fluctuates, the CSM’s finding on mother’s
income is not clearly erroneous.
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II. The CSM’s finding on father’s parentin g-time percentage was not clearly
erroneous.
Father argues that the CSM clearly erre d by finding that father’s parenting time was
less than 10% where the 20 09 judgment and decree of divorce set his parenting time
between 10% and 45%. Father also asserts that the removal of the parenting-time expeditor
(PTE) from this case negates the CSM’s finding. We disagree.
The CSM found father’s parenting time to be less than 10% based on the most recent
order addressing parenting time dated April 2014, which eliminated father’s parenting time
outside of Minnesota. Therefore, as this court previously concluded in a March 2017
opinion, the CSM’s finding that father’s paren ting time was less than 10% is not clearly
erroneous. See Fumagalli v. Fumagalli, No. A16-0735, 2017 WL 1046215, at *3-4 (Minn.
App. Mar. 20, 2017). Further, father’s assertion that the removal of the PTE from this case
affects his parenting-time percentage lacks merit. The PTE was relieved subsequent to the
order on appeal, and the removal of the PTE did not nullify the parenting time set in the
April 2014 order.
III. The CSM acted within her discretion in declining to redu ce father’s child-
support obligation in May 2016.
Father contends that the CSM should have selected May 2016 instead of June 2016
as the effective date of the reduction in his child-support obligation. We are not persuaded.
A CSM has discretion to set the start date of a reduction in child support. See Finch
v. Marusich, 457 N.W.2d 767, 770 (M inn. App. 1990). “A m odification of support or
maintenance . . . may be made retroactive only with respect to any period during which the
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petitioning party has pending a motion for modification but only from the date of service
of notice of the motion on the responding party.” Minn. Stat. § 518A.39, subd. 2(f) (2016).
Here, the CSM reduced fathe r’s child-support obligation for June 2016 and July
2016. The CSM’s decision is in accordance with the statut e because father served his
motion on May 26. Therefore, the CSM acte d within her discretion when she did not
reduce father’s child-support obligation earlier than June 2016.
IV. The CSM ruled on father’s request to stop all interest charges on child-support
arrears.
Father argues that the CSM abused her di scretion because she did not rule on his
request that interest charges on his child-support arrears dating back to December 2015 be
removed. We disagree.
The CSM broadly dismissed father’s remain ing motions and requests in her order
by stating that “[a]ll other motions/requests found in the [parties’] motions . . . are denied.”
Accordingly, the CSM addressed father’s request, and father’s argument on appeal fails.
Affirmed.