This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed March 20, 2001
Hennepin County District Court
File No. SP 256 225
Stuart E. Gale, Stuart E. Gale Law Offices, 101 Elder-Jones Building, 9301 Bryant Avenue South, Bloomington, MN 55420 (for Appellant)
Thomas H. Gunther, Gunther Law Office, P.A., 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for Respondent)
Considered and decided by Klaphake, Presiding Judge, Amundson, Judge, and Willis, Judge.
Appellant-father challenges the child support magistrate's refusal to order respondent-mother to pay support to appellant for the time the parties' child is in appellant’s custody, alleging (a) under v. Rumney, 611 N.W.2d 71, 73 (Minn. App. 2000), the Hortis/Valento formula should have been applied in this case; (b) the child support magistrate should have ruled that the time the child spent with appellant was with respondent’s permission; (c) the child support magistrate misapplied the law by invoking the custody-modification requirement of integration set out in Minn. Stat. §518.18 in this child-support modification proceeding; and (d) the child support magistrate did not adequately address respondent’s income. We affirm.
Appellant Christopher Buettner and respondent Pamela Buettner were married in 1985 and divorced in 1988. In the divorce decree, the parties were awarded joint physical and legal custody of their then one-year-old child. In 1995, the previous support order was amended to require appellant to pay respondent approximately $92.23 per month for child support under the Valento formula. See Valento v.Valento, 385 N.W.2d. 860 (Minn. App. 1986), review denied (Minn. June 30, 1986).
In June 1998, the parties agreed to modify the previous support order to conform to the fact that the parties each had equal physical custody of the child. After this agreement, the court ordered that neither parent pay any support.
In July 1998, the parties entered into a child support agreement that permitted the child to choose his visitation schedule. The child chose, for that summer, to spend approximately half of his time with each parent. The parties also agreed to let the child set his own schedule in the future.
In June 1999, the child went on a one-week vacation with appellant. Upon returning, appellant called respondent and told her that their child “didn’t want to see * * * or talk to [her] anymore.” The 14-year-old child now resides full-time with appellant.
Appellant requested child-support services from the county and, pursuant to this request, the Hennepin County Attorney’s Office instituted an action under Minn. Stat. § 256.87 (2000) to recover child support owed on the basis that the child is residing with appellant 100% of the time.
At the section 256.87 hearing, the magistrate made the following findings of fact: there was no evidence in the record that the child-support order had been changed since June 1995; the county’s intervention was based on the assumption that appellant had sole physical custody; the child had not been integrated into appellant’s home with respondent’s permission; and any change in child support must be preceded by an order for change of physical custody and/or a change in the existing child-support order. Appellant moved for review of the magistrate’s May 23, 2000 order and a new hearing. The district court denied both motions and affirmed all aspects of the magistrate’s order. This appeal followed.
Appellant first challenges the judge’s decision not to award additional child support under Minn. Stat. § 256.87 (2000). This court will not reverse a judge’s decision under Minn. Stat. § 256.87 absent an abuse of discretion. Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998). It is an abuse of discretion when the judge improperly applies the law to the facts. Id. (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).
Appellant first takes issue with the finding that the mother did not consent to the child living with the father. But the finding of fact was actually that the child “had not been integrated into [appellant’s] home with the permission of [respondent].” By referring to the child’s integration, the court was referring to the fact that appellant now has de facto sole physical custody of the child—the very fact that appellant suggests creates a cause of action for recovery of child-support payments under section 256.87.
Minn. Stat. § 256.87, subd. 5 provides that “[a] person or entity having physical custody of a dependant child * * * has a cause of action for child support against the child’s non-custodial parents.” This provision does not apply if the person with custody does not have custody with the consent of the other custodial parent or with approval of the court. Id.
Regarding custody and support, the facts of this case are clear. The parties agreed to joint custody, no support payments, and the ability of the child to set his own visitation schedule. The child has apparently chosen to live full-time with appellant.
As appellant notes, the magistrate focused on the fact that respondent did not give consent to appellant to have sole custody of the child. But the significance is not, as appellant suggests, whether appellant is a custodial parent, but whether respondent is a custodial parent. The statute only provides for a cause of action against non-custodial parents. By the terms of the parties’ agreements and its embodiment in the court’s order, both parties are custodial parents.
Appellant suggests that he has sole custody because the child resides with him full-time. But while it was agreed that the child could set his own visitation schedule, the child was never given authority to determine physical custody and this case rests upon a determination of who has authority to grant “physical custody.” Physical custody is defined as “the routine daily care and control and the residence of the child.” Minn. Stat. § 518.003, subd. 3(c) (2000). According to the parties’ agreements and the court’s order, both parents share joint physical custody. Appellant appears to have de facto physical custody because the child resides with him all of the time, but it is the court’s order and not the fact of physical custody that is ultimately determinative.
Minnesota law does not grant a child or a parent the ability to determine physical custody unilaterally. In fact, Section 518.003, subd. 3 clearly intends the opposite. This court has recognized that “there is a difference between joint physical custody and sole physical custody with liberal visitation.” Rumney v. Rumney, 611 N.W.2d 71, 74 (Minn. App. 2000). Similarly, there is a difference between joint physical custody with liberal visitation and sole physical custody.
Appellant cites Rumney as supporting his position that each parent in a joint physical arrangement always becomes the obligor during the time the children are in the physical custody of the other parent. Id. at 73. But here the court ordered that there be no child support. We recall, in Rumney, this court predicted that, if courts were to rigidly use whatever visitation is granted as a basis for determining child-support, “parents with physical custody will be reluctant to agree to liberal visitation, foreseeing the loss of child-support funds with each additional day of visitation.” Id. at 73-74.
Further, if the legal effect of a child exercising his right to set his visitation schedule is that physical custody is automatically changed, the parties’ support orders would need to be modified with every whim of the child. As the magistrate noted, the appropriate legal mechanism for appellant to receive additional child support, if needed, is for him to bring a motion to change the existing custody order. Accordingly, Minn. Stat. § 256.87 does not apply in this case.
Appellant also challenges the determinations regarding respondent’s income and expenses. Given our holding regarding the child-support payments, we need not address this question. Furthermore, appellant has not shown clear error, and we affirm a trial court’s findings on income to determine child support if those findings have a reasonable basis in fact and are not clearly erroneous. State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).