STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Brenda K. Berg, petitioner,
Eden L. Berg,
Filed January 11, 2000
Affirmed in part, reversed in part, and remanded
Roseau County District Court
File No. F497897
Steven A. Anderson, Law Office of Steven A. Anderson, P.A., 115 Roberts Avenue Northeast, P.O. Box 430, Warroad, MN 56763 (for respondent)
Michael L. Jorgenson, Charlson, Marben & Jorgenson, P.A., 119 West Second Street, P.O. Box 506, Thief River Falls, MN 56701 (for appellant)
Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.
Appellant Eden L. Berg challenges the district court's disposition of issues of child custody, visitation, marital-debt allocation, child support, and counseling fees that arose from the dissolution of his marriage to respondent Brenda K. Berg. We affirm in part, reverse in part, and remand.
Appellant argues that the district court erred by granting respondent physical custody of the parties' two younger children. Our review of a custody decision is limited to determining whether the district court abused its discretion by making clearly erroneous findings or by improperly applying the law. Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985); Linderman v. Linderman, 364 N.W.2d 872, 874 (Minn. App. 1985). We review the evidence in the light most favorable to the court's findings. Ayers v. Ayers, 508 N.W.2d 515, 521 (Minn. 1993).
Custody decisions must be based on consideration of the best interests of the child or children involved. Minn. Stat. § 518.17, subd. 3(a)(3) (1998); Pikula, 374 N.W.2d at 710-11. The factors a court must consider in determining what custody arrangement is in a child's best interests are set forth in Minn. Stat. § 518.17, subd. 1(a) (1998).
Appellant alleges that the district court should have determined that he served as the primary parent of the children and thereby should have been granted physical custody of all three children. But a guardian ad litem testified that while she could not prove or disprove who was the primary parent, she felt that respondent "probably" fulfilled the role. Viewing the evidence in the light most favorable to the district court's findings, the court's determination that neither parent served as the primary parent is not clearly erroneous. And, in any event, no one factor may be used to the exclusion of all others and a finding of which party is the primary parent may not serve as a presumption in determining the best interests of a child. Minn. Stat. § 518.17, subd. 1(a); Schumm v. Schumm, 510 N.W.2d 13, 14 (Minn. App. 1993).
Appellant also argues that the district court failed to make findings that support the decision to split physical custody of the children. While a decision to separate siblings is not favored, such a decision may be necessary to serve the best interests of the individual children. Sefkow v. Sefkow, 427 N.W.2d 203, 215 (Minn. 1988). The district court carefully reviewed the factors in section 518.17 and found that while many factors favored neither parent, respondent was more likely to offer valuable guidance to the younger children and to facilitate visitation. Given these findings, along with the deterioration of A.B.'s relationship with respondent and A.B.'s preference to live with appellant, the district court did not abuse its discretion in determining that the best interests of each individual child are served by granting custody of the two younger children to respondent and custody of A.B. to appellant.
Appellant argues that the district court erred by refusing to give him visitation rights with the two younger children on school nights. Visitation rights are granted only to the extent that their exercise will be beneficial to the child. Minn. Stat. § 518.175, subd. 1(a) (1998); Manthei v. Manthei, 268 N.W.2d 45, 45 (Minn. 1978). The district court has broad discretion to determine a child's best interests regarding visitation and will not be reversed absent an abuse of that discretion. Bliss v. Bliss, 493 N.W.2d 583, 588 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).
The district court granted appellant visitation with the two younger children for two consecutive weeks during each of the months of June, July, and August. During the school year, appellant has visitation with the children every other weekend, beginning on Friday afternoons and lasting until Sunday evening. Appellant also has visitation on any non-school days before his designated weekends during the school year. Given the evidence before the district court that respondent is more involved in assisting the children with their homework and that school officials are more comfortable contacting respondent than appellant about the children's problems at school, the district court did not abuse its discretion in determining that the children's best interests are served by limiting appellant's visitation rights to non-school nights.
III. Marital Debt
Appellant argues that the district court erred in determining and allocating the parties' marital debt. Because debt apportionment in a dissolution proceeding is treated as part of the property division, a district court is accorded broad discretion in the division of debt and its decision will not be overturned absent a clear abuse of that discretion. Korf v. Korf, 553 N.W.2d 706, 712 (Minn. App. 1996). This court will affirm a district court's decision if it is has an acceptable basis in fact and principle, even though this court may have taken a different approach. Bliss v. Bliss, 493 N.W.2d 583, 587 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). A district court's division of marital debt need only be just and equitable, not necessarily mathematically equal. Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987).
Appellant first argues that the district court erred in its allocation of credit-card debt. In determining the property settlement, the court ordered that each party would be responsible for his or her own attorney fees and concluded that respondent was entitled to a full credit for $2,886 in credit-card debt that she had allegedly repaid after the parties separated. Appellant argues that $2,886 is an erroneous figure because respondent testified that she paid only $1,988 of credit-card debt and that $632 of that debt was for her attorney fees. Additionally, appellant argues that because $2,886 is also the amount the court found was paid by respondent for childcare after the parties' separation, the district court made a typographical error. The court rejected this argument when appellant presented it in a post-trial motion, stating that "while the allocation is not necessarily equal the [c]ourt is satisfied that it is fair." Because the district court is not bound to divide debt equally, and given the relatively small amount alleged to be in error, the decision of the district court is not a clear abuse of its broad discretion.
Appellant next argues that the district court erred by determining that responsibility for the $2,866 debt paid by respondent for post-separation childcare was to be divided equally between the parties. Appellant alleges that respondent agreed to pay for childcare in exchange for appellant's agreement to not seek child support during separation. But the district court had the opportunity to observe, evaluate, and weigh the credibility of the parties' testimony regarding this alleged agreement and did not abuse its discretion in its allocation of this debt. See Minn. R. Civ. P. 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."); Korf, 553 N.W.2d at 712 (affirming district court's decision to not recognize an alleged agreement).
Appellant also claims that the district court erred by failing to include an alleged loan from appellant's father in the marital debt. But appellant's father did not seek payment for the alleged loan until the start of the dissolution proceedings here, and the father's suit seeking to enforce the alleged loan was dismissed on statute-of-limitations grounds. The district court did not abuse its broad discretion by not including as marital debt an alleged loan that was unenforceable.
IV. Child Support
Appellant argues that the district court erred in establishing the amount of child support. A district court's determination of child support is subject to review under an abuse-of-discretion standard. Malecha v. Malecha, 386 N.W.2d 292, 294 (Minn. App. 1986).
Child support is awarded in accordance with the guidelines set forth in Minn. Stat. § 518.551 (1998). Guidelines child support is a "rebuttable presumption and shall be used in all cases." Minn. Stat. § 518.551, subd. 5(i); see § 518.551, subd. 5(b) ("The court shall derive a specific dollar amount for child support" using the table provided in the guidelines). Section 518.551, subdivision 5(c), sets forth a list of factors a district court "shall take into consideration" to determine whether to deviate from the amount derived by application of the guidelines. When a district court deviates from the guidelines it must provide written findings (1) stating the amount required by the guidelines before any deviation, (2) specifying the reason for the deviation, and (3) demonstrating how any deviation specifically addresses the factors listed in subdivision 5(c) and serves the best interests of the child. Minn. Stat. § 518.551, subd. 5(i); see § 518.551, subd. 5(a) (allowing courts to accept stipulated child-support agreements but requiring "in other cases" child support "in accordance with the guidelines and the other factors set forth in paragraph (c) and any departure therefrom."). This court has "emphatically" noted that "any departure from child support guidelines must be supported by express findings of fact." Wende v. Wende, 386 N.W.2d 271, 275 (Minn. App. 1986); see Berlin v. Berlin, 360 N.W.2d 452, 454-55 (Minn. App. 1985). Thus, while a district court has broad discretion in determining child support, if the court deviates from the guidelines it must apply its factual findings to the factors in subdivision 5(c) that allow for deviation from a guideline-specified obligation.
To apply the guidelines to a split-custody arrangement, a court should first determine the net monthly income of each parent. See Sefkow v. Sefkow, 427 N.W.2d 203, 216 (Minn. 1988). Next, the court should determine the child-support obligation of each parent for noncustodial children, as required by the guidelines and adjusted by the factors in subdivision 5(c). Minn. Stat. § 518.551, subd. 5(c); Sefkow, 427 N.W.2d at 216-17. Finally, the child support owed by each parent should be offset, with the parent owing the greater amount paying to the other parent the difference between the parties' obligations. Sefkow, 427 N.W.2d at 217; see Malecha, 386 N.W.2d at 294 n.2 (dictum proposing split-custody child-support analysis analogous to Sefkow).
Here, respondent has custody of two children and appellant has custody of one. Application of Sefkow and the guidelines, without any deviation resulting from consideration of the factors in subdivision 5(c), produces the following:
net monthly income
(found by district court)
net child-support obligation
(one noncustodial child)
($2,464.92 x .25)
(two noncustodial children)
($2,229.54 x .30)
($668.86 - $616.23)
The district court determined that appellant owed respondent $260 per month in child support. To reach this determination, the court found that the guideline percentage for three children (35%) of appellant's monthly income ($2,229.54) was $780. Because that total represented $260 per child and respondent has custody of one more child than does appellant, the court directed appellant to pay respondent $260. The court's methodology is inconsistent with Sefkow, and the resulting child-support obligation is a substantial deviation from the guidelines without the written findings required by section 518.551. We conclude that the district court abused its discretion in making its child-support determination.
We remand the issue of the parties' child-support obligations to the district court for a determination consistent with Sefkow and the guidelines. We note that the district court must not necessarily conclude that appellant owes respondent a monthly payment of $52.63, as in the illustrative calculation above. The court may determine that adjustment of the obligation of either parent is warranted by application of the factors in subdivision 5(c). But the district court must acknowledge any deviation from the guidelines and must specify the reason for the deviation. The district court may, in its sole discretion, reopen the record for the purpose of determining child support.
V. Counseling Obligation
Appellant argues that the district court erred by ordering appellant to pay the entire costs of A.B.'s counseling and alleges that the district court "is trying to punish the [a]ppellant." But appellant cites no legal authority and offers no legal analysis in support of his claim of error. This issue, therefore, is not properly before us. See Minn. R. Civ. App. P. 128.02, subd. 1(d) (stating that legal issues asserted by an appellant's argument in a formal brief must be accompanied by citations to relevant authority); Whalen ex rel. Whalen v. Whalen, 594 N.W.2d 277, 282 (Minn. App. 1999) (refusing to address issues unsupported by legal analysis or citation to relevant law).
Affirmed in part, reversed in part, and remanded.