This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In Re the Marriage of:

Marnie Elizabeth Moran, petitioner,





Robert Francis Donahue,



Filed May 16, 2000


Amundson, Judge


Hennepin County District Court

File No. DC201626


Marnie E. Moran, 5509 Hillside Court, Edina, MN 55439 (pro se appellant)


Robert F. Donahue, 6117 West 105th Street, Bloomington, MN 55437 (pro se respondent)


            Considered and decided by Halbrooks, Presiding Judge, Amundson, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Marnie Elizabeth Moran challenges the modification of respondent Robert Francis Donahue’s child support obligation.


            In 1996, the district court dissolved the marriage of appellant Marnie Elizabeth Moran and respondent Robert Francis Donahue.  The parties stipulated to joint physical and legal custody of their two minor children, and that agreement became part of the dissolution decree. The children spend 67% of their time with Moran and 33% with Donahue.  The district court awarded each party one dependent’s tax exemption, computing Donahue’s income to include bonuses, and set Donahue’s monthly child support obligation at $712.12.

In September 1998, Moran filed a motion to modify Donahue’s child support obligation.  The child support magistrate concluded that child support could not be modified because Moran failed to meet the statutory standard demonstrating a substantial change in the parties’ financial circumstances.  Moran filed a motion for amended findings and requested a new hearing because Donahue had changed employment after the hearing on the motion to modify child support.  Due to Donahue’s employment, the magistrate determined there was a substantial change in circumstances and modified child support, but did not include commissions from Donahue’s new job in his income.  Using the Hortis/Valento formula for calculating guideline child support in joint physical custody cases, Donahue was obligated to pay $266 per month, the difference between his contribution of  $832 and Moran’s contribution of $566.  The magistrate then departed upward and set Donahue’s obligation at $935 per month in order to apportion adequately the parents’ respective financial responsibility for expenses.

Moran moved the district court to correct clerical mistakes and for review.  The district court denied her motion and affirmed the magistrate’s decision in its entirety.  This appeal followed.


I.          Income Tax Exemptions

The decision to award exemptions for income tax purposes is within the district court’s discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  As a general rule, the custodial parent is entitled to claim a dependency exemption for each dependent child.  Gerardy v. Gerardy, 406 N.W.2d 10, 14 (Minn. App. 1987).  But a custodial parent may waive the right to claim the exemption or the court may order the custodial parent to waive the right to claim the exemption.  State, County of St. Louis ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 472 (Minn. App. 1999).

In this case, each party can benefit from a dependency exemption and Donahue is a parent with joint physical custody that provides a substantial amount of child support.  The award of one dependency exemption to each custodial parent was not an abuse of discretion in these circumstances.

II.        Income Determination

            Moran argues that the doctrine of the law of the case requires Donahue’s commissions to be included in his income.  Moran is mistaken regarding the application of the law of the case doctrine.  First, the law of the case doctrine generally applies in an appeal after remand.  Loo v. Loo, 520 N.W.2d 740, 741 n.1 (Minn. 1994).  There has been no appeal, remand, and repeal here.  Second, child support decrees are subject to the district court’s continuing jurisdiction and may be modified for changed circumstances.  Id. at 743.  Whether Donahue has commission income at his new job is not governed by the original dissolution decree.

The decision to modify an award of child support will not be reversed absent an abuse of discretion.  Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993).  An appellate court will not reverse a district court’s determination of net income used to calculate child support if it has a reasonable basis in fact.  Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn. App. 1995).  Income is defined as “any form of periodic payment to an individual * * *.”  Minn. Stat. § 518.54 (1998).  Employment bonuses may be periodic payments and therefore income.  Novak v. Novak, 406 N.W.2d 64, 68 (Minn. App. 1987), review denied (Minn. July 22, 1987).

The magistrate determined that Donahue had a gross annual income of $75,000.  This was based on annualizing Donahue’s salary payments and did not include any commission income.  Donahue is a salesman and is entitled to a 2% sales commission for sales to listed accounts.  But Moran did not provide evidence that Donahue had been paid any commissions or had made sales entitling him to commissions.  Moran’s exhibits listed Donahue’s gross income as $75,000.  Her calculations showed that Donahue’s salary was $75,000 and listed all other types of income as “0.”  The district court’s determination that Donahue’s income was $75,000 therefore has a reasonable basis in fact.

Moran argues that the district court should have required Donahue to pay her a fixed percentage of any commissions if and when received.  See Novak, 406 N.W.2d at 68 (affirming order requiring non-custodial parent to pay 35% of whatever annual bonuses received to custodial parent).  The district court acted within its discretion in declining to impose this requirement.  In Novak, the court was presented with evidence that the obligor had received bonuses regularly in the past but that they varied in amount.  Id. at 66.  Here, Moran did not present any evidence that Donahue had received commissions or provide estimations of future commission payments.

III.       Respondent’s Child Support Obligation

            Moran argues that under the law of the case doctrine, the magistrate should not have applied the Hortis/Valento method of determining Donahue’s child support obligation.  Moran is again mistaken regarding the application of the law of the case doctrine.  This is not an appeal after remand, and child support may be modified for changed circumstances upon motion by a party.  See Loo, 520 N.W.2d at 744 & n.1 (stating that a district court does not normally apply the law of the case doctrine to its own prior decisions).

            The decision to modify an award of child support will not be reversed absent an abuse of discretion.  Kuronen, 499 N.W.2d at 53.  The method for applying the child support guidelines in Minn. Stat. § 518.551 (1998 & Supp. 1999) in joint physical custody cases was set out in Hortis v. Hortis, 367 N.W.2d 633, (Minn. App. 1985).  Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986).  When parents share joint physical custody, the proper method of determining support is to require the father to pay the guideline amount only during the time when the mother has custody and vice versa.  Id.  This method of applying the guidelines “should be used in all joint [physical] custody situations, unless there are specific reasons for a departure.”  Id.

In this case, if Moran had sole physical custody of both children, Donahue’s guideline support obligation would be $1,242 per month ($4,141 net monthly income x 30%).  Because the parties have joint physical custody, the Hortis/Valento method was used to determine Donahue’s obligation for the time that Moran has custody, 67% of the time.  Donahue’s obligation for that period of time was $832 ($1,242 x 67%).  Moran’s obligation to Donahue for the period of time Donahue has custody was $566 ($5,712 net monthly income x 30% x 33%).  When these amounts were offset, Donahue was obligated to pay $266 per month.  The magistrate then departed upward and required that Donahue pay $935 per month in child support.

Moran argues that although the parties stipulated to joint physical custody, the Hortis/Valento formula should not be applied because she has a disproportionate amount of time with the children, making it more like a sole physical custody arrangement.  We disagree.  First, joint physical custody does not require an absolutely equal division of time; it is only necessary that physical custody of the child be the parties’ shared responsibility.  Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn. App. 1992) (stating that “trial courts may unequally divide physical custody but still label the arrangement as joint”).  Second, the parties are bound by their stipulation to joint physical custody even though they agreed to an unequal amount of time with the children.  Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993) (holding that, for purposes of motion to move children out-of-state and to modify custody arrangement, parties were bound by their stipulation of joint physical custody although the children spent unequal amounts of time with each parent).  Third, even if the court were to consider this a sole physical custody arrangement, the Hortis/Valento formula would still apply.  Rogers v. Rogers, 606 N.W.2d 724, 727 (Minn. App. 2000) (holding that Hortis/Valento formula applies in sole physical custody cases when the non-custodial parent provides a “significant amount of physical care”), pet. for review filed (Minn. Apr. 5, 2000); Tweeton v. Tweeton, 560 N.W.2d 746, 748-49 (Minn. App. 1997), review denied (Minn. May 28, 1997).

            Moreover, the magistrate considered the fact that Moran has the children for a greater percentage of the time when determining Donahue’s child support obligation.  The Hortis/Valento method is used so that each parent receives support for the amount of time they have custody.  Accordingly, the magistrate accounted for the fact that Moran has the children for 67% of the year in determining Donahue’s obligation.  This resulted in Donahue having a child support obligation of $266 per month.  Then, the magistrate further considered the greater amount of time Moran has the children by departing upward.  The magistrate set Donahue’s child support obligation at $935 per month instead of $266 per month based on her determination that the parties do not have equal amounts of time with the children and that Moran bears “the vast majority” of the children’s everyday expenses.  Moran does not challenge this aspect of the departure.

Rather, Moran’s departure argument is based on her erroneous belief that applying the Hortis/Valento formula was a departure. The Hortis/Valento formula is merely a method used to apply the guidelines in joint physical custody cases.  See Valento, 385 N.W.2d at 862 (stating that the proper method of determining support in joint physical custody cases is to require the father to pay his guideline amount only during the time the mother has custody and vice versa); Rogers, 606 N.W.2d at 727 (stating that the Hortis/Valento formula is an application of the guidelines).  Here, the application of the Hortis/Valento method was not an abuse of discretion when the parties stipulated to joint physical custody.