This opinion will be unpublished and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

C9-01-786

 

Jacqueline Lee Wencl, petitioner,

Appellant,

 

vs.

 

Kenneth Robert Wencl,

Respondent.

 

Filed October 30, 2001

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

 

Hennepin County District Court

File No. DC220973

 

Steven C. Pundt, Northstar West, Suite 720, 625 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)

 

Michelle L. MacDonald, 4930 West 77th Street, Suite 210, Edina, MN 55435-4808 (for respondent)

 

            Considered and decided by Halbrooks, 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

KALITOWSKI, Judge

Appellant contends the district court erred by (1) terminating respondent’s spousal maintenance obligation; (2) improperly determining respondent’s income; (3) miscalculating the percentage of time the children spend with each party; (4) denying appellant’s motion to assign transportation responsibility solely to respondent; and (5) refusing to reconsider its use of the Hortis-Valento formula in determining respondent’s child support obligation.  We affirm in part, reverse in part, and  remand.

D E C I S I O N

I.

Appellant argues the district court erred in terminating spousal maintenance after appellant remarried, contending that when the parties stipulated to divest the court of jurisdiction of maintenance modification, the court was prohibited from terminating maintenance for any reason.  We disagree.

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

 

Minn. Stat. § 518.64, subd. 3 (1998).  Here, the parties’ divorce decree does not “expressly” address the impact of appellant’s remarriage on her receipt of maintenance and there is no claim that the parties “otherwise agreed in writing” that maintenance would continue beyond appellant’s remarriage.  The supreme court has stated that Minn. Stat. § 518.64, subd. (3), requires that

a decree state expressly that maintenance will continue beyond remarriage. * * * [E]vidence of how parties view a maintenance obligation, whether taken from negotiations or a stipulation, is irrelevant to the issue of whether maintenance should continue past remarriage given section 518.64 subdivision 3’s requirement that any such provision be positively expressed in the decree.

 

Gunderson v. Gunderson, 408 N.W.2d 852, 853 (Minn. 1987).

Because the decree did not expressly address the effect of remarriage, we conclude the district court properly terminated maintenance pursuant to Minn. Stat. § 518.64, subd. (3).

II.

 

Appellant argues the district court abused its discretion in determining the amount of respondent’s income because the court (1) failed to consider evidence of a loan application in which respondent stated an income higher than indicated by his tax returns; and (2) failed to include all of respondent’s income from his Subchapter-S corporation.  We disagree.

A district court’s determination of net income for purposes of calculating child support will be affirmed if it has a reasonable basis in fact and is not clearly erroneous. Duffney v. Duffney, 625 N.W.2d 839, 843 (Minn. App. 2001).  See Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (stating this court considers evidence in the light most favorable to findings and defers to the district court’s credibility decisions).

The district court determined respondent’s income by using his W-2 and information concerning income from respondent’s corporation.  The district court found that the performance of respondent’s business fluctuated greatly.  Because the district court’s findings are based on evidence in the record, we cannot say the district court’s findings as to respondent’s income are clearly erroneous or that they do not have a reasonable basis in fact.


III.

Appellant argues the district court erred in calculating, for purposes of child support, the percentages of time the children spend with each parent.  Appellant claims the court failed to base its calculation on the exact beginning and end times of visitation as specified in the divorce decree.

The district court has considerable discretion in determining a child support obligation.  Broas v. Broas, 472 N.W.2d 671, 673 (Minn. App. 1991).  Decisions relating to modification of child support are within the sound discretion of the district court, and a reviewing court will reverse an exercise of that discretion only when it is based on a “clearly  erroneous conclusion that is against logic and the facts on [the] record.”  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).

The district court based its calculation on the number of nights spent at the parties’ houses.  The record supports the numbers the district court used.  Because the calculations are not against logic, or contrary to the facts on the record, we conclude the district court did not abuse its discretion.

IV.

Appellant argues the district court erred by denying appellant’s motion requesting that respondent pick up and return the children for his visitation.  We disagree.

The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The record indicates the parties live 4.2 miles apart.  The parties dispute whether transportation has been shared or respondent has been providing the transportation and the decree makes no mention of who is to pick up and drop off the children.  The district court denied appellant’s motion without comment.  On these facts we cannot say the district court abused its broad discretion.

V.

Appellant contends the district court erred in denying, without comment, appellant’s request for permission to file a motion to reconsider application of the Hortis-Valento formula in light of the supreme court’s holding in Rogers v. Rogers, 622 N.W.2d 813 (Minn. 2001).  We agree.

This court will reverse a district court’s order regarding the modification of child support “only if we are convinced that the court abused its broad discretion * * * ” and reached a “conclusion that is against the logic and the facts on [the] record.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (alteration in original) (quotation omitted).

Rogers addressed how child support payments in a sole physical custody case are calculated.  Rogers, 622 N.W.2d at 821.  Rogers stated the percentage of time spent with the noncustodial parent is not the determining factor, but rather is only to be taken into account in the context of the six factors used to determine child support.  Id.  It noted that the 1998 amendment to the definition of child support obligor stated a person with sole physical custody is presumed not to be an obligor and thus not required to make child support payments unless the presumption is overcome.  Id.  It reasoned that the amendment “strongly suggests legislative dissatisfaction” against the reliance on the percentage of time noncustodial parents have access to their children.  Id. at 820.  It found the Hortis-Valento approach is “at odds with the legislative scheme.”  Id. at 821.  It noted the legislature’s overriding concern was for the best interests of the child and its intent that Minn. Stat. § 518.551 governs deviations from the guidelines, rather than the percentage of time the child spends with the noncustodial parent.  Id.

The court in Rogers did not specify that its ruling was to be given prospective effect only.  The decision came down two days after the district court’s decision here and appellant requested permission to file a motion to reconsider pursuant to Minn. R. Gen. Pract. 115.11.  The comment to Minn. R. Gen. Pract. 115.11 specifically refers to “intervening legal developments” as an appropriate ground for granting a motion to reconsider.

We conclude that in light of the supreme court’s holding in Rogers, it was an abuse of discretion for the court to summarily deny appellant’s request for permission to file a motion to reconsider.  Therefore we reverse and remand to the district court for reconsideration and a determination of the applicability of the supreme court’s decision in Rogers.

Affirmed in part, reversed in part, and remanded.