This opinion will be unpublished and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

A16-0114

In re the Marriage of:

Beth Ostergaard Stillwell, petitioner,

Appellant,

vs.

Harry Alan Stillwell,

Respondent.

Filed December 5, 2016

Affirmed

Kirk, Judge

Hennepin County District Court

File No. 27-FA-12-8135

M. Sue Wilson, Julie H. Vogel, M. Sue Wilson Law Offices, P.A., Minneapolis, 

Minnesota (for appellant)

Harry Alan Stillwell, Minnetrista, Minnesota (pro se respondent)

Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and Kirk, 

Judge. 

U N P U B L I S H E D O P I N I O N

KIRK, Judge

Appellant-mother challenges the district court’s decision to impute income to 

respondent-father at 150% of the minimum wage under Minn. Stat. § 518A.32 (2014), 
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rather than treating the court’s previous imputation of income to father in the dissolution 

proceeding, for the purpose of calculating spousal maintenance, as binding. We affirm.

FACTS

Appellant-mother Beth Ostergaard Stillwell and respondent-father Harry Alan 

Stillwell were married in 2004, and their dissolution was finalized ten years later in 2014. 

The parties have two minor children. At the dissolution trial, father sought spousal

maintenance from mother. The district court found that father “would have had sufficient 

property to provide for his reasonable needs . . . if he had chosen to commence 

employment during the last year and that it was unreasonable for him to fail to do so.” 

Based on the evidence before it, the district court imputed income of $75,000 per year to 

father. It found that father was “not entitled to an award of spousal maintenance, either 

temporary or permanent,” and it did not reserve jurisdiction over the issue of future 

spousal maintenance. The district court also granted mother’s request to reserve the issue 

of child support, noting that “[e]ither party is free to bring a motion to establish or to 

modify child support based on the applicable statutory criteria.”

When the district court denied father spousal maintenance, it imputed income to 

him using the method set forth in Minn. Stat. § 518.552, subd. 2 (2014), which requires

the court to consider both father’s “financial resources . . . including marital property, and 

[his] ability to meet [his] needs independently.” After considering extensive evidence 

regarding father’s employment potential, work history, occupational qualifications, and 

the current job market, the district court concluded that “[f]ather has sufficient earning 
3

capacity to meet his needs through employment,” independent of any property. The 

district court imputed $75,000 of annual income to father, and neither party appealed. 

On April 7, 2015, mother filed a motion to establish child support, requesting that

the district court impute income of $75,000 per year to father. Mother then filed an 

amended motion to establish child support requesting that income of $100,000 per year 

be imputed to father. Following a second hearing on the matter, the district court 

concluded that father was voluntarily underemployed, and that income had to be imputed 

to him under Minn. Stat. § 518A.32, subd. 2 (2014). None of the evidence mentioned 

above and considered by the district court in 2014 during the dissolution trial was 

presented to the court in 2015 in the child-support action, and no evidence was presented 

in 2015 that the information considered by the court in 2014 remained accurate or 

relevant.1 Of the three methods for imputing income provided in Minn. Stat. § 518A.32, 

subd. 2, the district court concluded that the only option available was to impute father’s 

income “as 150% of the minimum wage.” The district court calculated father’s childsupport obligation accordingly. Mother appeals.

 

1 Father’s past education and work history had not changed from 2014 to 2015, but in 

order to impute potential income under Minn. Stat. § 518A.32, subd. 2(1) (2014), the 

district court must have current information regarding “employment potential, . . . and 

occupational qualifications in light of prevailing job opportunities and earnings levels in 

the community[.]”
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D E C I S I O N

I. The district court did not abuse its discretion when it imputed income to 

father under Minn. Stat. § 518A.32, subd. 2 (2014).

The district court has broad discretion to provide for the support of the parties’ 

children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). “A district court abuses its 

discretion when it makes findings unsupported by the evidence or when it improperly 

applies the law.” Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 716 (Minn. App. 

2009), review granted (Minn. Sept. 29, 2009) and appeal dismissed (Minn. Feb. 1, 2010); 

see Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997). “An abuse of discretion 

occurs when the district court resolves the matter in a manner that is against logic and the 

facts on the record.” O’Donnell v. O’Donnell, 678 N.W.2d 471, 474 (Minn. App. 2014) 

(quotation omitted); In re Adoption of T.A.M., 791 N.W.2d 573, 578 (Minn. App. 2010) 

(quotation omitted).

“[T]he child-support statutes impose an independent obligation on the court to 

determine the gross income of each parent.” Haefele v. Haefele, 837 N.W.2d 703, 712 

n.6 (Minn. 2013). The district court is “required to undertake its own assessment under 

the plain language of the applicable statutes[.]” Id. (addressing calculation of gross 

income under Minn. Stat. § 518A.30 (2012)); see Minn. Stat. § 518A.34(b)(1) (2014) 

(“To determine the obligor’s basic support obligation, the court shall: (1) determine the 

gross income of each parent under section 518A.29[.]”); Minn. Stat. § 518A.29(a) (2014) 

(“[G]ross income includes . . . potential income under section 518A.32[.]”). “[W]hen the 

[district] court makes an award of support following a reservation of the matter, it must 
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base its determination on facts and circumstances existing at the time of the application 

for support, as if the entire action had been brought at the later date.” Aumock v. Aumock, 

410 N.W.2d 420, 422 (Minn. App. 1987). “A court’s determination of income must be 

based in fact and will stand unless clearly erroneous.” Newstrand v. Arend, 869 N.W.2d 

681, 685 (Minn. App. 2015), review denied (Minn. Dec. 15, 2015) (quotation omitted).

Mother appeals the district court’s decision to impute father’s income at 150% of 

the minimum wage, arguing that the court should have relied on the 2014 analysis of 

father’s earning capacity and imputed income of $75,000 per year to him before 

calculating child support. 

Here, mother requested establishment of child support and the district court 

determined that father is voluntarily underemployed. Following this determination, the 

district court imputed income to father before calculating his child-support obligation. 

Minn. Stat. § 518A.32, subd. 1 (2014). Under Minn. Stat. § 518A.32, subd. 2, there are 

only three methods available for determining the potential income of a voluntarily 

underemployed parent for child-support purposes: “(1) the parent’s probable earnings 

level based on employment potential, recent work history, and occupational qualifications 

in light of” the current market; (2) “the actual amount of . . . unemployment 

compensation or workers’ compensation benefit received; or (3) the amount of income a 

parent could earn working full time at 150 percent of the current federal or state 

minimum wage, whichever is higher.” In this case, only option one or option three was 

possible, and the district court imputed income to father under the method set forth in 

Minn. Stat. § 518A.32, subd. 2(3).
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After the district court determined father’s imputed income of 150% of the 

minimum wage, it calculated his child-support obligation according to Minn. Stat. 

§ 518A.34 (2014) and issued an order under Minn. Stat. § 518A.38, subd. 1 (2014). The 

order was not a modification of an existing child-support obligation under Minn. Stat. 

§ 518A.39 (2014), but an order establishing a child-support obligation where none 

existed. Because of this distinction, there was no need for the district court to analyze

whether there had been a substantial change in circumstances since the dissolution. See 

Eustathiades v. Bowman, 695 N.W.2d 395, 398 (Minn. App. 2005) (stating “when child 

support is reserved in a judgment and decree, a subsequent request for child support is 

generally treated as an initial establishment of child support rather than a modification of 

child support”); compare Minn. Stat. § 518A.34 (describing procedure for establishing

child-support obligations), with Minn. Stat. § 518A.39, subd. 2 (describing standards for 

modifying child-support obligations).

The district court expressly disregarded its 2014 determination of father’s earning 

capacity and noted that, in setting a child-support obligation, it is required to “consider 

the facts and circumstances existing at the time of the application for support.” It

properly concluded that the previous imputation of income was therefore irrelevant and 

that there was no evidentiary basis for the court to rely on its 2014 findings from the 

dissolution proceeding.

Mother asserts that the district court also improperly concluded that earning 

capacity is calculated differently when establishing spousal maintenance than when 

establishing child support. Mother relies on the dissent in Fulmer v. Fulmer, 594 N.W.2d 
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210 (Minn. App. 1999), to support her assertion that the method for imputing income is 

the same in both circumstances. Mother argues that this is especially true here because 

there had “been no change in circumstances since the time of trial, and [father] could not 

claim that there was a change.”2

But the Fulmer decision addresses modification of a spousal-maintenance award, 

not establishment of a child-support obligation. Furthermore, the portion of the dissent 

that mother relies on addresses the definition of imputed income for child-support 

purposes, and concludes that “[n]either case law nor logic compels” another definition for 

imputed income for spousal-maintenance purposes. 594 N.W.2d at 215 (Klaphake, J., 

dissenting). This does not compel the conclusion that the district court was bound by its 

imputation of income during the dissolution trial. Currently, the statutory structure for 

establishing and modifying child support is in chapter 518A. That chapter was enacted in 

2005, see 2005 Minn. Laws ch. 164, six years after this court filed the Fulmer decision. 

Minnesota law now directly instructs a district court to select one of three available 

methods for imputing income for child-support purposes, and to apply one of those 

methods to the facts and circumstances at the time of the motion. Minn. Stat. § 518A.32, 

subd. 2; Aumock, 410 N.W.2d at 422. For these reasons, we conclude that the district 

 

2 Mother incorrectly applies the standard for modification of child support and misstates 

the burden that it imposes to her establishment motion. Minn. Stat. § 518A.39, subd. 2 

(requiring the moving party to show a substantial change in circumstances to justify 

modification of a support obligation). If mother had been seeking modification of a 

child-support obligation, she, not father, would have been required to show a substantial 

change in circumstances.
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court did not abuse its discretion in calculating father’s potential income in the childsupport action.

II. The district court did not err in determining father’s income in the childsupport action.

“We review de novo whether res judicata precludes an issue from being 

relitigated.” Maschoff v. Leiding, 696 N.W.2d 834, 838 (Minn. App. 2005). But 

“support rulings are not the traditional final judgments that res judicata and collateral 

estoppel were intended to protect.” Id. (quotation omitted). “Further, the availability and 

application of res judicata and collateral estoppel in family matters is limited, but ‘the 

underlying principle that an adjudication on the merits of an issue is conclusive, and 

should not be relitigated, clearly applies.’” Id. (quoting Loo v. Loo, 520 N.W.2d 740, 744 

(Minn. 1994)).

Mother argues that the doctrine of res judicata precludes the parties from 

relitigating father’s earning capacity and that the district court’s dissolution findings are

therefore binding on its child-support determinations. Mother relies on Loo to support 

her argument and claims that since the district court’s determination of father’s earning 

capacity was “on the merits during the parties’ [dissolution] trial,” and since “nothing had 

changed from the time of trial,” the court was precluded from finding anything other than 

that father’s earning capacity is $75,000 per year in the child-support proceeding. 520 

N.W.2d at 743-44.

Mother’s reliance on the Loo decision is misplaced. The relevant issue addressed 

in Loo was whether two motions filed by the wife (one requesting payment of health-
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insurance premiums, and one requesting that spousal maintenance be increased and 

extended) “presented the same legal issue,” thereby precluding the second motion. Id. at 

744. The Loo court determined that res judicata did not apply because the two motions 

presented different legal issues. Id. Accordingly, a judgment on the merits on a motion 

regarding payment of health-insurance premiums did not preclude a future motion for

spousal maintenance. 

Mother asks this court to conclude here that the district court’s 2014 finding of 

father’s earning capacity in the dissolution proceeding is conclusive and binding for

purposes of calculating child support in the 2015 child-support proceeding. But, as was 

the case in the Loo decision, mother’s post-dissolution motion to establish child support 

presented a different legal issue than father’s request for spousal-maintenance payments

in the dissolution action, and was unrelated to the issues addressed by the district court in 

the dissolution proceeding. Furthermore, because a parent cannot waive a child’s right to 

financial support, mother at all times maintained the ability to establish a child-support 

obligation based on current circumstances despite any finding in the dissolution order. 

Aumock, 410 N.W.2d at 421 (“Any agreement between the parents waiving child support 

cannot be binding on the trial court, which must be guided primarily by a concern for the 

best interests of the children.”). In response to mother’s motion, the district court was 

required to review the parties’ circumstances at the time the motion to establish child 

support was made in order to determine the appropriate child-support award, not to rely 

on evidence presented on another issue a year ago. Id. at 422. The doctrine of res 

judicata does not apply here.
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Here, the district court was required by statute to impute father’s income at 150% 

of the minimum wage and was required to conduct an independent analysis of the parties’ 

circumstances at the time of mother’s motion to establish child support. There was also

no evidence presented in the child-support proceeding to support a finding that father’s 

earning capacity was $75,000, or that the evidence presented to the court in the 

dissolution trial remained relevant. The district court did not abuse its discretion when it 

complied with this statutory requirement and calculated father’s child-support obligation 

accordingly.

Affirmed.