This opinion will be unpublished and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:

Terry B. Jones, n/k/a Terry B. Evans, petitioner,





Michael A. Jones, Sr.,



Filed December 11, 2000

Affirmed in part, reversed in part, and remanded

Willis, Judge


Ramsey County District Court

File No. F6952397


Edward F. Kautzer, Ruvelson & Kautzer, Chtd., 510 Spruce Tree Center, 1600 University Avenue West, Saint Paul, MN  55104; and Jack D. Nelson, 1563 Portland Avenue, Saint Paul, MN  55104 (for respondent)


Caroline Palmer, Minnesota AIDS Project, 1400 Park Avenue South, Minneapolis, MN  55404; and Suzanne Born, Union Plaza, Suite 405, 333 Washington Avenue North, Minneapolis, MN  55401 (for appellant)


            Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant husband challenges the district court’s denial of his motion to reduce his child-support obligation.  He alleges that the amount of time he physically cared for his children entitles him to a reduction of his ongoing support obligation and support arrearages.  We conclude that the district court failed to make adequate findings regarding (1) the amount of time the minor children spent with each parent for purposes of applying the Hortis/Valento formula, and (2) whether the oldest child had been integrated into appellant’s home with the consent of respondent for purposes of Minn. Stat. § 518.57, subd. 3 (Supp. 1999).  We affirm in part, reverse in part, and remand.


An August 1996 stipulated judgment dissolved the marriage of appellant Michael A. Jones and respondent Terry B. Evans.  The judgment awarded the parties joint legal custody of their three children, born in 1980, 1983, and 1990, respectively.  Respondent was awarded sole physical custody of the children, while appellant was given liberal visitation rights, including weekends and extended periods during the summer and school vacations.  Appellant was ordered to pay $315 per month in child support through August 1996.  Starting in September 1996, appellant’s monthly support obligation was to increase to $693.91.  As each child attained the age of majority, graduated from high school, or became self-supporting, appellant’s support obligation was to be reduced to the guidelines amount for the remaining children. 

Appellant’s support payments were made directly to Ramsey County Support and Collections through income withholding.  Because respondent did not provide the county with a copy of the judgment until April 1999, appellant’s income withholding was not increased in September 1996, as it should have been.  Between September 1996 and April 1999, respondent made no effort to enforce the higher monthly support obligation, and arrearages accrued during that period.  In 1998, the parties’ oldest child reached age 18 and completed high school.

            In November 1999, appellant moved to reduce his child-support obligation, alleging that since the date of the dissolution the children had spent nearly 50% of their time in his care and that, therefore, the custody arrangement was de facto joint physical custody.  Based on this assertion, he argued that under the Hortis/Valento/Tweeton line of cases, the district court should (1) find that the Hortis/Valento formula applies to ongoing support for the two minor children, (2) find that he is entitled to an “adjustment” in the amount of arrearages for the time the children were in his care, and (3) adjust retroactively his obligations for support and arrearages to reflect the fact that the oldest child had lived with him from January 1997 through June 1998.

            In a March 2000 order, the district court concluded that: (1) even though Minnesota statutes prohibit retroactive modification of child support, “caselaw suggests that courts should recognize their role as courts of equity and fairness and not become overburdened by labels”; (2) fairness and equity required that appellant’s arrearages be modified to reflect the time that the oldest child lived with appellant; (3) liberal visitation with the children did not necessitate a modification of the original custody designation; (4) ongoing child support for the two minor children should be $602 per month; and (5) arrearages should be modified only to reflect the time that the oldest child lived with appellant from July 1997 through June 1998.  This appeal followed.


            Child support may be modified if the moving party shows a substantial change in circumstances that renders the existing support award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a), (b) (Supp. 1999).  Whether to modify child support is within the district court’s broad discretion, and an appellate court will not reverse the district court absent an abuse of that discretion.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  The district court abuses its discretion if it resolves the issue in a manner “that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  


            Appellant alleges that he shares equally in the responsibility of providing physical care to the parties’ two minor children and that, therefore, his support obligation should be determined under the Hortis/Valento formula.  See Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) (setting out formula for calculating support when parties share joint physical custody); Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986) (same, but applying principle in all joint custody cases unless reasons for not applying formula exist), review denied (Minn. June 30, 1986); see also Tweeton v. Tweeton, 560 N.W.2d 746, 749 (Minn. App. 1997) (applying the Hortis/Valento child-support calculation where child care responsibilities were equally divided between parents), review denied (Minn. May 28, 1997).

            The Hortis/Valento formula is an application of the statutory guidelines.  Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 793 (Minn. App. 1998).  A deviation from the formula must be supported by explanatory findings.  Valento, 385 N.W.2d at 863 (stating that deviation from guidelines must be accompanied by specific findings that justify deviation).  Also, when a judgment does not provide for joint physical custody but the noncustodial parent provides a “nearly equal amount of physical care” for his or her children, the district court must apply the Hortis/Valento formula.  Rumney v. Rumney, 611 N.W.2d 71, 75 (Minn. App. 2000).

            Here, the district court did not determine whether appellant, the noncustodial parent, provided the level of care that, under Rumney, would require application of the Hortis/Valento formula.  We therefore remand to the district court for a determination of this issue.  If the district court finds that appellant and respondent provide a “nearly equal amount of physical care” for the minor children, it must apply the Hortis/Valento formula or make appropriate findings to justify a deviation from the guidelines.  See id.


            Appellant next argues that the district court erred in refusing to modify arrearages that accrued when appellant failed to pay the higher child-support amount that the judgment required him to begin paying in September 1996.

Section 518 allows for limited retroactive modification of child support:

[M]odification of support or maintenance * * * may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party * * *  .


Minn. Stat. § 518.64, subd. 2(d) (Supp. 1999).  But modification may be made retroactive to a date before service of a motion only if the court expressly finds that the party seeking modification was precluded from serving a motion by reason of (a) a significant physical or mental disability, (b) a material misrepresentation by the other party, or (c) fraud on the court.  Minn. Stat. § 518.64, subd. 2(d)(1).  In such circumstances, the district court has the discretion to make a modification retroactive to a date before service of the motion if the party seeking modification promptly serves the motion when he or she is no longer precluded from doing so.  Id.  Because forgiveness of arrearages is a retroactive modification of support, arrearages that accrued before service of a motion for modification may not be forgiven except pursuant to Minn. Stat. § 518.64, subd. (2)(d)(1).  See Allan v. Allan, 509 N.W.2d 593, 597 (Minn. App. 1993). 

A.        Support for the two minor children.

Appellant argues that arrearages must be “recalculated” for the parties’ two minor children.  But appellant does not allege the existence of any of the circumstances described in Minn. Stat. § 518.64, subd. 2(d)(1).  Therefore, we affirm the district court’s conclusion that arrearages for support for the two minor children should not be reduced.   

B.        Support for the oldest child.

Appellant also argues that arrearages for support for the oldest child should be recalculated for the period from the date of the dissolution until the child began living with appellant.  Again, appellant does not allege the existence of any of the circumstances described in Minn. Stat. § 518.64, subd. 2(d)(1), and we therefore affirm the district court’s conclusion that arrearages for support for the oldest child for the time that he was living with respondent should not be reduced.

The district court concluded, however, that appellant satisfied his support obligation for the oldest child for the period July 1997 to June 1998, stating that fairness and equity required that an adjustment be made to the arrearages that accrued when that child was in appellant’s care.  Respondent argues that the court erred in forgiving arrearages on the ground of equity, while appellant appears to claim that arrearages for support for the oldest child should not have accrued after the date the child started living with him in January 1997 because he satisfied his support obligation for that child by providing a home, care, and support.  See Minn. Stat. § 518.57, subd. 3 (Supp. 1999) (providing that district court may find child-support obligation satisfied by obligor’s providing a home, care, and support for children); see also Karypis v. Karypis, 458 N.W.2d 129, 131 (Minn. App. 1990) (codified by Minn. Stat. § 518.57, subd. 3).[1] 

But to find satisfaction of a support obligation under Minn. Stat. § 518.57, subd. 3, a court must find that the child was integrated into the obligor’s home with the obligee’s consent.  The district court here made no such finding, and we therefore reverse the court’s conclusion that appellant satisfied his support obligation for the oldest child for the period July 1997 to June 1998.  The district court may, on remand, reconsider this issue and may, in its sole discretion, reopen the record to receive additional evidence regarding whether the requirements of Minn. Stat. § 518.57, subd. 3, were satisfied.

Affirmed in part, reversed in part, and remanded.

                * Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Because Minn. Stat. § 518.57, subd. 3, does not apply when child-support payments are assigned to a public agency, the court rightly concluded that the statute could not apply to any period earlier than June 1997, when public-assistance benefits for the oldest child terminated.