This opinion will be unpublished and

may not be cited except as provided by

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







Craig A. Merkel, petitioner,





Belinda Rose Merkel,




Filed August 29, 2000


Amundson, Judge


Anoka County District Court
File No. F6971318


Jason P. Rietz, Douglas G. Sauter & Associates, P.A., 199 Coon Rapids Boulevard, Suite 108, Coon Rapids, MN 55433 (for appellant)


Shelley D. Jensen, Judicare of Anoka County, Inc., 1201 – 89th Avenue Northeast, Suite 310, Blaine, MN 55434 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Amundson, Judge.


U N P U B L I S H E D   O P I N I O N




            Appellant father challenges his child support increase, alleging (a) his child support obligation should have been calculated under the Hortis/Valento joint physical custody/child support formula; and (b) he should have been entitled to introduce evidence regarding the amount of time the parties have spent with the children.  We affirm.


            The parties’ marriage was dissolved on July 15, 1997.  The district court awarded the parties joint legal and physical custody of their three minor children, alternating physical custody of the children between the parties on a monthly basis.  The district court established appellant’s child support at $200.  Appellant’s net monthly income totaled $1,900, and respondent’s net monthly income totaled approximately $1,200.

            Appellant filed a motion to modify his child support obligation.  A hearing was held on May 18, 1999, before an administrative law judge (ALJ).[1]  The ALJ increased appellant’s child support obligation to $547 per month, citing the change in the parties’ physical custody schedule[2] and changes in the incomes of each party.   Appellant sought review of the ALJ’s determination, which was denied by the district court.  This appeal followed.


            Appellant claims that the ALJ erred when it refused to utilize the Hortis/Valento formula in computing his child support obligation.   The standards of review applicable to district court proceedings also apply to appeals from administrative hearings under Minnesota Statutes, chapter 518.  Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990).  

A child support obligation may be modified if the moving party shows a substantial change in circumstances rendering the existing support award unreasonable and unfair.  Minn. Stat. §518.64, subd. 2 (Supp. 1999).  The district court had broad discretion to modify child support, and we will not reverse a child support modification absent abuse of discretion.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  Here, the ALJ found that appellant’s net income had increased from $1,900 to $1,939.94 per month while respondent’s net monthly income had decreased from $1,200 to $600.  In addition to the change in the parties’ incomes, the ALJ also found that the parties altered the physical custody arrangement, and even though appellant’s share of time with the children was substantial, it had decreased.

            Appellant does not dispute whether a substantial change in circumstance has occurred.  Rather, appellant contends that the Hortis/Valento formula should have been used in calculating child support, and that the ALJ’s refusal to do so constituted an abuse of discretion.  The Hortis/Valento formula obligates a parent to pay guideline child support only for the time periods that the other parent has physical custody of the children.  Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986);Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985).  Appellant argues that this formula should have been applied here because the parties either still had joint physical custody pursuant to the dissolution decree or the parties had de facto joint physical custody.

            This court recently held that where a noncustodial parent provides a significant amount of physical care for the parties’ children, the Hortis/Valento formula must be applied.  Rogers v. Rogers, 606 N.W.2d 724, 727 (Minn. App. 2000), review granted (Minn. May 16, 2000).  The custody regimen implemented by the parties’ consent requires the Hortis/Valento formula be applied.  But, even so, the district court may deviate from the Hortis/Valento formula if it concomitantly makes the requisite findings.  See Minn. Stat. § 518.551, subd. 5(i) (Supp. 1999) (requiring courts to make written findings giving the amount of support calculated under the guidelines as well as the reasons for the deviation, and requiring courts to specifically address the statutory deviation factors and how the deviation serves the best interests of the child.); see also Rogers, 606 N.W.2d at 727 (“the district court can deviate from the [Hortis/Valento] formula * * * only if it makes appropriate findings”). 

Here, the ALJ stated that its decision to deviate from the guidelines in ordering child support was based upon appellant’s shared care of the minor children as well as the change in the parents’ incomes.  The ALJ made detailed findings concerning the current custody schedule practiced by the parties and the change in each party’s income.  Although the Hortis/Valento formula might have been applicable here, the ALJ made sufficient findings to support its deviation and did not abuse its discretion in modifying appellant’s child support obligation.

Appellant also argues that, because the rules of evidence in an administrative proceeding are generally more relaxed, the ALJ abused its discretion when it refused to receive into evidence visitation schedules that had been drawn up by appellant.  But appellant was allowed to testify as to the amount of time he cared for the children.  The manner in which evidence is received is within that tribunal’s discretion and absent a clear abuse of that discretion, this court will not reverse on those grounds.  Lines v. Ryan, 272 N.W.2d 896, 902 (Minn. 1978).



[1] Under Holmberg v. Holmberg, 588 N.W.2d 720, 727 (Minn. 1999), the administrative child support system ceased to exist on July 1, 1999.

[2] The magistrate found that the parties no longer used an alternating monthly physical custody schedule, but instead used a day-to-day schedule that resulted in the chidlren being with respondent for the majority of the time.