This opinion will be unpublished and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:

David Michael Haggerty, petitioner,



Joyce Lorraine Haggerty,



Filed August 29, 2000


Stoneburner, Judge


Dakota County District Court

File No. F69113310



Robert N. Schlesinger, and Suzanne M. Remington, Robert N. Schlesinger, P.A., 700 St. Paul Building, Six West Fifth Street, St. Paul, MN 55102 (for respondent)


Kathryn A. Graves, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)



            Considered and decided by Stoneburner, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D  O P I N I O N




Appellant Joyce Haggerty challenges a child-support modification alleging (1) the district court abused its discretion in using the Hortis/Valento formula to calculate the modification; (2) the district court abused its discretion in refusing to deviate upward from the amount determined by the Hortis/Valento formula; (3) the Hortis/Valento formula is contrary to the legislative intent set forth in the child-support guidelines; (4) the district court should have required the parties to pay the children’s “direct expenses” in proportion to the parties’ incomes; (5) the district court should have modified the award of tax-dependency exemptions; and (6) the district court abused its discretion in denying appellant’s request for attorney fees.  On notice of review, respondent David Haggerty argues that the district court abused its discretion in reserving the issue of spousal maintenance.  We affirm.



Modification of child support is within the district court’s discretion and will not be reversed absent an abuse of discretion.  Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974); Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993).

First, appellant argues that the district court should not have applied the Hortis/Valento formula to establish respondent’s child-support obligation.   See Valento v. Valento, 385 N.W.2d 860, 863 (Minn. App. 1986) (determining support obligation by applying guideline amount only to period parent has physical custody of child), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) (requiring father to pay guideline support when mother has custody and vice versa).  

The parties have joint physical custody of their children, and the children spend alternating weeks at each parent’s home.  Generally, it is appropriate to apply the Hortis/Valento formula to cases where the parents have joint physical custody.  Tweeton v. Tweeton, 560 N.W.2d 746, 747 (Minn. App. 1997), review denied (Minn. May 28, 1997).  In the 1992 dissolution decree, based on the stipulation of the parties, respondent was required to pay $400 per month child support.  There is no evidence of how this amount was calculated. 

Appellant claims respondent waived the application of the Hortis/Valento formula to child-support modification when he originally agreed to a child-support award that was not calculated using the formula.  Appellant also argues that because respondent originally agreed to an amount that was basically double the Hortis/Valento obligation, his obligation should now be determined by doubling what he would owe under Hortis/Valento.  Appellant presents no evidence showing that respondent intentionally and voluntarily waived future application of the Hortis/Valento formula or agreed to pay double his obligation under Hortis/Valento in the future.  See Adam v. Adam, 358 N.W.2d 487, 489 (Minn. App. 1984) (defining waiver as intentional or voluntary relinquishment of a known right). 

The district court found that “the original stipulation was agreed to by Petitioner on the basis of providing as much child support as he was able, not on the basis of committing to a ‘double Valento’ formula.”  The district court did not abuse its discretion in using the Hortis/Valento formula to arrive at respondent’s modified child-support obligation of $502 per month.

            Second, appellant contends that the district court should have deviated upward and ordered respondent to pay $1,000 per month in child support.  The district court has discretion to deviate upwards from the Hortis/Valento formula to serve the best interests of the children.  Valento, 385 N.W.2d at 862.  But absent unusual circumstance a district court’s decision not to deviate will be upheld as within its discretion.  See Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (holding district courts have broad discretion to provide for support of children).

            The district court found that applying the Hortis/Valento formula to determine the parties’ child-support obligations is the “fairest and most equitable resolution for all parties” and “provides adequate support to Respondent for the care of the minor children while in her care.”  Appellant argues the district court should have deviated upward in order to ensure the children have the same standard of living at her home as they do in respondent’s home.  See Esposito v. Esposito, 371 N.W.2d 608, 610 (Minn. App. 1985) (upholding award of increased child support to raise children’s standard of living with mother to level commensurate with what they enjoy when with father).  In Esposito, this court determined an upward departure in child support was necessary when the children experienced a significant difference in standard of living between their mother’s home and their father’s.  Id.  In that case, the children wore lower quality clothes, ate lower quality food, and in general had a lower standard of living when they were with their mother.  Id.

By contrast, appellant claims the children enjoy a better standard of living with respondent based on “a much larger home, driving luxury automobiles, and taking out-of-state vacations.”  Respondent has a larger home than appellant does partially because he has remarried and has two additional children.  This means that when all his children are living with him, respondent has six people living in his house, as opposed to appellant, who at most has three people living in her house.  Appellant and respondent drive comparable 1998 automobiles and take similar vacations.  Considering the evidence, the district court did not clearly err in finding that there was no need to deviate upward from the Hortis/Valento formula, and it did not abuse its discretion in refusing to grant appellant’s motion for an upward deviation.

            Third, appellant alleges that the Hortis/Valento formula is contrary to the legislative intent of the child-support guidelines, is contrary to public policy, and does not serve the best interests of children.  Appellant asks this court to modify the formula.  We decline. 

Fourth, appellant argues that the district court abused its discretion in refusing to order that the parties pay the children’s “direct expenses” (i.e., extracurricular activities, school lunches, clothing) in proportion to their share of the total income.  The district court found that

[t]he current arrangement divides those expenses equally.  The difference in burden created by the current arrangement is already accounted for in the child support Order.  The equal division of these expenses remains the most fair and equitable division of the burden.


Appellant claims this finding is an abuse of discretion because (1) there is no provision in the judgment about direct expenses; (2) the substantial change in the parties’ financial circumstances makes an equal division of the direct expenses unreasonable and unfair; and (3) appellant does not have sufficient resources to pay an equal share of the direct expenses.

            The district court made no finding that there was a stipulation about direct expenses in the judgment; instead, it simply found that the current arrangement split the expenses equally, which appellant admitted in her affidavit.  The substantial change in the parties’ financial situation led to a modification of child support, and the district court found the burden of direct expenses was accounted for by the child-support award.  The district court questioned some of appellant’s expenses and refused to penalize respondent by forcing him to pay more because appellant chose to spend excessively.  The record supports the district court’s findings.  The district court did not abuse its discretion in refusing to modify the parties’ arrangement to share responsibility for the children’s direct expenses equally.

Fifth, appellant argues that the district court abused its discretion in refusing to assign her the tax exemptions for both children.  The Federal Internal Revenue Code automatically entitles the custodial parent to claim the child tax exemption unless the custodial parent signs a waiver.  Theroux v. Boehmler, 410 N.W.2d 354, 358 (Minn. App. 1987), Valento, 385 N.W.2d at 863.  The district court is permitted to assign the exemption.  Fudenberg v. Molstad, 390 N.W.2d 19, 21 (Minn. App. 1986).  The allocation of the tax exemptions is within the discretion of the district court and will not be reversed absent an abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999); Valento, 385 N.W.2d at 863.

At the time of the dissolution the parties agreed to split the child tax exemption so that each party claims one child each year.  Appellant requested that the district court modify the stipulated order and award her both child tax exemptions.  The district court showed deference to the stipulation and refused to modify the tax-exemption allocation.  See Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981) (holding stipulation entered into by parties deserves deference from district court).  Appellant argues that because respondent now has three child tax exemptions, the exemption for the parties’ younger son is not as important to respondent.  But we note that the exemption is currently a tax benefit to respondent, decreasing his federal income tax and thereby increasing his net income for determination of child support.  See Fudenberg, 390 N.W.2d at 21 (recognizing the possible impact of allocating exemptions on child-support calculation).  The district court did not abuse its discretion by refusing to modify the parties’ stipulation concerning the child tax exemptions.

Sixth, appellant argues that the district court abused its discretion by refusing to order respondent to pay her attorney fees because she lacks the means to pay her attorney fees and respondent unreasonably contributed to the length of the litigation by requesting continuances.  See Minn. Stat. § 518.14, subd. 1 (1988) (authorizing district courts to award attorney fees when party cannot afford to bring good-faith claim and when other party unreasonably delays litigation).

A district court’s decision whether to award attorney fees under Minn. Stat.           § 518.14 will only be reversed for an abuse of discretion.  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987); Crosby, 587 N.W.2d at 298; see also Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (stating allowance of attorney fees in family court rests in discretion of district court). 

In the present case, the district court denied both parties’ requests for attorney fees, finding that “[n]either party suffers a hardship so significant as to justify” ordering the other party to pay attorney fees and that “no party or their attorney has proceeded with this matter in bad faith.”  Both parties are employed and own their homes.  And, although appellant presented evidence indicating that her expenses exceed her income, the district court found that some of appellant’s spending appeared excessive and determined that she was capable of paying her attorney fees.  Appellant has not presented any evidence that shows the continuances sought by respondent were unreasonable or requested in bad faith.  Under these circumstances, refusing to order respondent to pay appellant’s attorney fees was within the district court’s discretion.

Finally, respondent argues that the district court abused its discretion when it denied his motion to terminate appellant’s reservation of future spousal maintenance.  At the time of the dissolution, the parties stipulated that spousal maintenance would be reserved.  When a marital-dissolution judgment is entered pursuant to a stipulation, the stipulation merges into the judgment.  Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997). 

Pursuant to the parties’ stipulation, the district court determined that “[s]pousal maintenance shall remain reserved.”  Typically, a stipulation entered into by the parties deserves deference from the district court.  Claybaugh, 312 N.W.2d at 449; see Cisek v. Cisek, 409 N.W.2d 233, 237 (Minn. App. 1987) (noting negotiated stipulation with both parties represented by attorneys carries significant weight and indicates individual parties’ reflection on their present and future needs), review denied (Minn. Sept. 18, 1987); see also Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997) (noting when considering motion to modify stipulation central to original judgment, court “must appreciate that the stipulation represents the parties’ voluntary acquiescence in an equitable settlement.”).

Respondent claims appellant forfeited her right to future maintenance because she failed to complete her education.  The district court found appellant’s failure to attain her degree was not in bad faith, but even if it were, the education clause in the stipulation impacts only the actual amount of maintenance, not the stipulation’s preservation of the possibility of future maintenance.  The district court limited its determination to reserving appellant’s potential to seek future maintenance; it did not award appellant maintenance.  Respondent’s claim that he should not have to pay maintenance in the future, therefore, is premature.  The district court did not abuse its discretion in refusing to terminate the parties’ stipulation that the issue of future spousal maintenance is reserved.