In re the Marriage of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1204

In re the Marriage of:

Sara Lynn Garcia,
Respondent,

vs.

Reuben Jesse Garcia, petitioner,
Appellant.

Filed August 17, 2020
Affirmed in part and reversed in part
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-FA-16-5621

Perry M. Smith, St. Louis Park, Minnesota; and

Paige V. Orcutt, Trial Group North, Duluth, Minnesota (for respondent)

Kathleen M. Miller, KMH Custom Family Law, PLLC, Eagan, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Reilly, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Reuben Jesse Garcia challenges both the district court’s postdecree order
determining his child-support ob ligation and the judgment aw arding attorney fees to

2
respondent Sara Lynn Garcia. As to the first challenge, Reuben 1 argues that the district
court clearly erred by finding that he wa s voluntarily underemployed and by not
considering certain facts when calculating his potential income for child-support purposes.
As to the second, he contends that the distri ct court abused its discretion by awarding a
conduct-based attorney fee to Sara for conduct that oc curred before the legal proceeding
began. We affirm in part and reverse in part.
FACTS
Reuben and Sara divorced in October 2016 pursuant to a stipulated decree. As part
of the decree, they agreed to joint legal and joint physical custody of their two minor
children, J.G. and L.G. The decree reserved th e issue of child support, with the parties
agreeing to work together to provide for their children. The decree also included an
“Appendix A,” which required the parties to notify each other and the court if they changed
addresses and gave each parent the right to know the names and addresses of the children’s
schools. The decree did not state which scho ols the children would attend. At the time,
both parties were living near the Twin Cities.
The matter at issue here began when, two years after the dissolution of the marriage,
Sara moved the district cour t to modify child custody a nd determine child support. The
facts of the appeal come from the parties’ a ffidavits and exhibits in connection with the
motion.

1 The parties’ first names are used for clarity.

3
In May 2018, J.G. and L.G. were staying with Reuben when L.G. sent Sara text
messages and videos, claiming that Reuben was throwing J.G. around. Child -protective
services (CPS) investigated the matter and di scussed it with Reuben, but took no further
action. CPS also disclosed to Reuben that L.G.’s videos were the source of its information.
After that, Reuben communicated to Sara that L.G. could no longer stay with him and that
he had gotten rid of all of her belongings.
Soon after, in the summer of 2018, Reub en moved to Texas, and Sara moved to
Duluth. When Reuben moved, J.G. went to st ay with him, with Sara agreeing that J.G.
could stay there until school started in Minnesota. As part of agreeing to send J.G. to stay
with Reuben, Sara required Reuben to give her his Texas address. Reuben provided an
address but then, after J.G. had left for Texas, said that he was not living at that address.
Sara requested Reuben’s address multiple times after that, but Reube n responded that it
was none of her business and refused to provide it.
While J.G. was in Texas, Reuben register ed him for classes at a charter school
without telling Sara. Sara learned about the school registration. Based on that and on
Reuben’s refusal to provide an address, Sara decided not to send J.G. back to Texas later
in the summer after J.G. retu rned to Minnesota for an outi ng with Sara’s family. A few
months later, Sara brought her motion for child custody and to determine child support.
The parties participated in mediation and reached an agreement with respect to child
custody. This agreement, which is also reflected in the later district court order, stated that
the parties would maintain joint physical and joint legal custody of the children but also
that the children’s primary residence would be with Sara. The children would attend school

4
in Duluth, but Reuben would have parenting time during certain school breaks. The parties
did not reach an agreement during mediation wi th respect to child support, so the matter
proceeded to a hearing. Follo wing the hearing, the refere e issued a recommended order,
which the district court thereafter approved.
The primary issue with respec t to child support was the ca lculation of both Sara’s
and Reuben’s income. The district court found that both Sara and Reuben were voluntarily
underemployed. Both were teachers and had Master’s degrees in education, but, at the time
of the motion, Sara was working for a busin ess in Duluth, earning $16 an hour, while
Reuben was working as a temporary security guard, earning $14 an hour. The district court
concluded that each of the parties had a potential annual income of $60,000 and used that
amount to determine that Reuben had a monthly child-support obligation of $1,026.
The district court also granted Sara’s request for conduct-based attorney fees,
concluding that Reuben’s conduct prompted this action and that he “unreasonably
contributed to the length and expense of this proceeding.”2
Reuben appeals.

2 The district court also denied Reuben’s request to reopen the dissolution judgment.
Reuben had requested that the decree be reopened in part be cause he claimed that he and
Sara had agreed that she would receive the parties’ house in exchange for Reuben keeping
his pension and Sara not seeking child support. On appeal, Reuben does not challenge the
district court’s denial of his motion to reopen the judgment.

5
D E C I S I O N
I. The district court did not clearly err by assigning potential income to Reuben.

Reuben argues that the district court cl early erred both when it found that he was
voluntarily underemployed and when it calcul ated his potential income based on that
finding. Appellate courts review a district court’s factual finding as to whether a parent is
voluntarily underemployed for clear error. Welsh v. Welsh, 775 N.W.2d 364, 370 (Minn.
App. 2009). A person’s gross income for ch ild-support purposes includes his or her
potential income, id. at 369, and appellate courts apply a clear-error standard of review to
a district court’s findings of gross income, Schisel v. Schisel, 762 N.W.2d 265, 272 (Minn.
App. 2009). To show clear error, “the party challenging the findings must show that despite
viewing that evidence in the light most favorab le to the [district] court’s findings . . . the
record still requires the definite and firm conviction that a mistake was made.” Vangsness
v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).
A. Voluntarily underemployed

Reuben asserts that the dist rict court erred when it found that he was voluntarily
underemployed because he claims that he was forced out of his teaching position five years
earlier, had unsuccessfully sought another t eaching position, and has a medical condition
that limits his ability to work.
To determine the presumptive child-support obligation of a parent, a court must first
determine the gross income of each parent. Minn. Stat. § 518A.34, subd. (b)(1) (2018). But
if a parent is voluntarily underemployed or unemployed, ch ild support instead “must be
calculated based on a determination of potentia l income.” Minn. Stat. § 518A.32, subd. 1

6
(2018). Minnesota law excludes certain indi viduals from being c onsidered voluntarily
underemployed. A parent is not consid ered voluntarily underemployed if the
underemployment “represents a bona fide career change that outweighs the adverse effect
of that parent’s diminished income on the child.” Minn. Stat. § 518A.32, subd. 3(2) (2018).
Additionally, a parent is not consider ed voluntarily underemployed if the
underemployment is because the “parent is physically or mentally incapacitated.” Minn.
Stat. § 518A.32, subd. 3(3) (Supp. 2019).
Our review of the record reveals that it contains support for the district court’s
finding that Reuben is voluntarily undere mployed. Reuben has extensive training and
experience in the teaching field. At the time of the motion, he was earning about $29,000
annually as a security guard. Five years earlier, in Minnesota, he was making about $80,000
annually as a teacher at the time he left his job. At the time of the motion, the average salary
of a teacher in the Birdville Texas School District where Reuben was residing was $60,000
annually. Reuben’s affidavit, while vague, indi cates that he voluntarily left the teaching
profession due to stress, that he made effort s to find another teaching job in Minnesota
between 2014 and 2015, and that he never sought a teaching job in Texas. These facts all
support the district court’s finding that Reuben is voluntarily underemployed.
Reuben contends, however, that his affidav it includes facts that contradict this
finding. He claims that he was forced to change professions when he stopped teaching. He
explained to the district court that he no longer has a desire to teach, though he also told
the district court that he does not have an “ideal” profession. On appeal, he asserts that it

7
is unrefuted that he was forced out of the teaching position. He similarly states that it is
unrefuted that he tried unsuccessfully to find another teaching job.
As an initial matter, Reuben’s affidavit does not lay out his claimed history with as
much detail as he implies on appeal. What he now describes as him being forced out of the
teaching profession, his affidavit describes as a voluntary choice to address the stress
caused by negative reviews. The affidavit provides speculative context for why he received
negative reviews, but it also states that he “ultimately left the teaching profession,” not that
he was fired or laid off. His description of his subsequent job search in Minnesota is vague.
The affidavit also makes no reference to the job market for teachers in Texas.
More importantly, however, with respect to the broader factual issue of whether
Reuben was voluntarily underemp loyed, the parties’ affidav its conflicted, and thus the
district court had to make factual findings based on its assessment of the evidence and the
credibility of the parties. See Knapp v. Knapp, 883 N.W.2d 833, 837-38 (Minn. App. 2016),
review denied (Minn. Sept. 27, 2016). Even if Reuben unambiguously claimed that he had
been forced out and was unsuccessful in sear ching for another teaching job, the record
contained evidence that he was qualified to teach and that it was primarily his lack of desire
to teach that was preventing him from taking steps to obtain a teaching job in Texas. The
fact that the record may have contained some contradictory evidence is insufficient to show
that the district court clearly erred in its factual finding. See Vangsness, 607 N.W.2d at 474.
Reuben points out that he changed professions five years earlier, which shows that
he was not “motivated by an intent to evade his child support obligation.” But a finding of
bad faith is not required to impute income to a parent for child-support purposes. Melius v.

8
Melius, 765 N.W.2d 411, 415 (Minn. App. 2009); see Minn. Stat. § 518A.32 (2018).
Reuben does not dispute that, with his educa tion and experience, he is qualified to be a
teacher. Reuben’s assertion that he “did not recently change professions” suggests that he
claims to have made a bona fide career change, but he points to no evidence that this career
change “outweighs the adverse effect of that parent’s diminished income on the child.” See
Minn. Stat. § 518A.32, subd. 3(2).
Reuben also argues that, based on a letter from his doctor, he cannot be considered
voluntarily underemployed pursuant to Minn. Stat. § 518A.32, subd. 3(3). The letter, dated
October 2018, is the only evidence that Re uben provided of his medical condition. The
letter discusses Reuben’s recovery from a surg ery to remove cancer from his kidney and
states that he “continues to have discomfort and pain which does not allow him to work at
his customary employment.” But section 518A.32 places the burden on the parent claiming
medical hardship to avoid imputed income to show that he is “physically or mentally
incapacitated”; Reuben provides no evidence or explanati on of how he is currently
physically incapacitated with respect to teaching but still able to work a “full-time position”
in security on “the overnight shift.”3
Lastly, Reuben suggests that the district court erred by making its factual findings
without sworn testimony. The factual evidence provided by the parties was in the form of
sworn affidavits. There was no evidentiary hearing, but neither party requested one.

3 Reuben also discusses two unpublished opinions of this court, but unpublished opinions
are not precedential. See Dynamic Air, Inc. v. Bloch , 502 N.W.2d 796, 800 (Minn. App.
1993).

9
Generally, in family court, motions are “submitted on affi davits, exhibits, documents
subpoenaed to the hearing, memoranda, and ar guments of counsel.” Minn. R. Gen. Prac.
303.03(d)(1). And appellate courts “defer to the district court’s credibility determinations
as to conflicting affidavits.” Knapp, 883 N.W.2d at 837. The district court may implicitly
assess the credibility of the par ties’ affidavits and use those affidavits to make findings.
See Knapp, 883 N.W.2d at 837; cf. Pechovnik v. Pechovnik , 765 N.W.2d 94, 99 (Minn.
App. 2009) (deferring to an im plicit credibility determination made by the district court).
A party may request a hearing for oral testimony, but, if no such request is made, the district
court “shall not take oral testimony at the scheduled he aring unless the court in its
discretion solicits additional evidence from th e parties by oral testimony.” Minn. R. Gen.
Prac. 303.03(d)(5). The district court did not err by making its findings based upon the
record before it.
In sum, the district court did not clearl y err by finding that Reuben is voluntarily
underemployed.
B. Potential income determination

Reuben next argues that the district cour t erred by attributing to him as potential
income his earlier income as a teacher when he was employed in another profession in
another state. A parent’s potential income ma y be determined by calculating a “parent’s
probable earnings level based on employm ent potential, recent work history, and
occupational qualifications in light of preva iling job opportunities a nd earnings levels in
the community.” Minn. Stat. § 518A.32, subd. 2(1).

10
Sara affirmed that the average salary for a full-time teacher in the Birdville, Texas,
school district where Reuben lives was $60,0 00 annually. Reuben argues that it was an
error for the district court to rely on this number, but he points to no evidence in the record
contradicting the amount. “On appeal, a part y cannot complain about a district court’s
failure to rule in h[is] favor when one of th e reasons it did not do so is because that party
failed to provide the district court with the ev idence that would allow the district court to
fully address the question.” Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App.
2003), review denied (Minn. Nov. 25, 2003).
Reuben contends that the district court did not take various factors into account. He
argues, for instance, that the district court fa iled to consider the fact that Reuben had not
taught for five years. He also asserts that th e district court failed to take into account the
smaller community to which Reuben had move d and the impact that would have on his
potential salary. But the district court’s finding indicates that the court did take those factors
into account because the finding reflects a lower salary than the $80,000 salary that Reuben
earned several years earlier as a teacher in Minnesota.
Reuben also argues that the district court did not make sufficient findings about his
ability to meet the legal requirements to return to the teaching profession, such as getting
licensed to teach in Texas. But Reuben provided no evidence on his claimed inability to
meet the legal requirement s to teach in Texas. See Eisenschenk, 668 N.W.2d at 243. He
told the district court that he had no desire to teach, not that he wa s legally incapable of
teaching. Reuben had taught in Minnesota, and the district court used that information to

11
reasonably conclude that Reuben could satis fy the legal requirements in Texas but had
chosen not to because he did not want to teach.
Finally, Reuben argues that the district court failed to make various findings related
to the statutory description of how to calculate potential income. He asserts that the district
court did not appropriately consider his recent work history when determining his imputed
salary and failed to make findings regarding job opportunities in Reuben’s community.
With respect to Reuben’s recent work history, the district court did note that Reuben
was working as a security gua rd. But the district court di d not link the $60,000 imputed
salary to his recent work hist ory, presumably because his re cent work hist ory would not
affect the calculation. The $60,000 salary was a logical potential salary given Reuben’s
qualifications and the evidence before the distri ct court on the average salary of Birdville
school district teachers.
As to whether there were job opportunities in Reuben’s community, the district
court explained that it was finding that, given Reuben’s experience and education, he was
qualified to teach and only declined to do so because he no longer had the desire to teach.
Reuben’s counsel represented to the district court that Reuben teaches social studies and
that that is a compe titive area with limited jobs. But th e referee asked Reuben’s counsel
whether Reuben had applied to any teaching jobs in Texas, and she said that he had not.
On this record, Reuben has fa iled to show that the district court’s determination of his
potential salary as a teacher in Texas was clearly erroneous.

12
II. The district court abused its discreti on by awarding conduct-based attorney
fees for actions that took place before litigation.

Reuben contends that the district court erred by awarding conduct-based attorney
fees against him based on conduct that occurred prior to this proceeding. Appellate courts
review an award of conduct-based attorney fees for an abuse of discretion. Gully v. Gully,
599 N.W.2d 814, 825 (Minn. 1999).
The district court awarded conduct-based attorney fees to Sara, finding that Reuben
had unreasonably contributed to the length and expense of the proceeding. A district court
may award attorney fees “against a party wh o unreasonably contributes to the length or
expense of the proceeding.” Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001)
(quotation omitted).4 But, generally, “behav ior occurring outside the litigation process”
cannot be the basis for such a fee award. Id. at 819.
The district court found that Reuben had prompted Sara’s motion by enrolling J.G.
in a Texas school without her permission, intentionally giving Sara a wrong address for his
residence, and sending accusatory and threatening emails. Reuben argues that this conduct
all took place outside the scope of proceedings, and thus the award of attorney fees is an
abuse of discretion. Sara responds that his actions “were part of the litigation” because the

4 The parties do not appear to dispute whethe r Minn. Stat. § 518.14, subd. 1, the statute
relied on in Geske for the authority to award conduct-based atto rney fees, provides a
substantive basis for an awar d of conduct-based fees. We have previously assumed the
statute does so, without actually deciding the matter. See Madden v. Madden, 923 N.W.2d
688, 702 (Minn. App. 2019).

13
original decree reserved the issue of child support and the district court retained jurisdiction
to change child support as well as modify orders related to child custody and parental time.
While Reuben’s conduct may have been the impetus for her motion, Sara offers no
precedential authority5 for her position that any conduct in connection with the subjects of
child support, child custody, and parental time is part of the litigation process for purposes
of conduct-based attorney f ees. Sara’s motion was the firs t motion from eith er party to
modify the original decree. The parties had no pending motion or other matters before the
district court. It is true that they reserved the matter of child support in the original divorce
decree, but the decree stated that the parties were doing so because they planned to support
the children together without a court order. Thus, the conduct identified by the district court
all occurred outside the scope of the current litigation. Under Geske, an award of conduct-
based attorney fees based on such co nduct is an abuse of discretion. See 624 N.W.2d at
818-19.
Moreover, while the parties had to return to court to resolve their dispute, nothing
in Reuben’s conduct contributed to the length or expense of the proceeding any more than
if the parties simply had not agreed on a new child-custody or child-support arrangement.
Reuben withheld information from Sara that the divorce decree required him to share, and
the parties had not agreed that J.G. would go to school in Texas. But the divorce decree did
not contemplate what would happ en if one of the parties move d out of the state or if the
parties disagreed about which schools the children would attend. Addressing these matters

5 Both parties cite unpublished opinions of this court for their persuasive value, but none
of these opinions is binding precedent. See Dynamic Air, 502 N.W.2d at 800.

14
would have required simi lar proceedings even if Reuben had not engaged in any of the
identified conduct.
Sara suggests that Reuben unreasonabl y extended proceedings by refusing to
participate in mediation. But the district court stated in its order that it based the award of
an attorney fee on Reuben’s decision to enroll J.G. in school in Texas, his refusal to provide
Sara with his real address, and the content of his emails. Because those bases do not justify
the award of conduct-based attorney fees in this case, we reverse the award.
Affirmed in part and reversed in part.