This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-01-871

 

 

In re the Marriage of:

Anthony Scott Kremer, petitioner,

Appellant,

 

vs.

 

Patrinella Ann Kremer,

Respondent.

 

Filed December 11, 2001

Affirmed

Hanson, Judge

 

Mille Lacs County District Court

File No. F2-99-367

 

David W. Buchin, Buchin Law Office, 816 West St. Germain, Suite 201, St. Cloud, MN 56301 (for appellant)

 

Susan M. Gallagher, Gallagher Law Office, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Hanson, Judge.

U N P U B L I S H E D†† O P I N I O N

HANSON, Judge

††††††††††† The judgment dissolving the partiesí marriage provides for joint legal and physical custody of the children, but does not require either party to pay child support.† Appellant-father argues that the district courtís failure to order payment of child support by respondent-mother is a deviation from the child-support guidelines and that the district court erred by failing to make findings adequate to justify that deviation.† Because the district courtís findings are sufficient to explain its deviation from the guidelines, we affirm.

FACTS

After two years of marriage, appellant-father Anthony Scott Kremer and respondent-mother Patrinella Ann Kremer separated and mother moved out.† Approximately six months after their separation, father obtained a default judgment that granted father sole physical custody of the partiesí minor children and ordered mother to pay child support of $358.38 per month.† Three months later, the district court granted motherís motion to vacate the default judgment based on its finding that father had committed fraud on the court.†

When the district court revisited the questions of custody and child support, it concluded that the childrenís interests would be best served by granting the parties joint physical and legal custody of the children.† The district court adopted a custody plan that provides that the children stay with father during the school year and with mother during winter, spring and summer school vacations; divides holidays equally; and provides alternate-weekend visitation to each party during the time she/he does not have primary custody.

The district court recognized that the Hortis/Valento formula requires mother to pay father $184.23 per month for the support of the minor children.† However, noting the partiesí limited resources, the district court determined that such a requirement would work a financial hardship on mother based on her annual income of less than $17,000, particularly during the times of year when the children would be with her.† The district court, accordingly, deviated from the Hortis-Valento formula, imposed no child-support obligation on mother, and provided father with the benefit of the tax exemptions for the children.† Father appeals the district courtís determination that mother need not pay child support.†

D E C I S I O N

Father argues that the district courtís findings are insufficient to support its deviation from the child-support guidelines.

A district court has broad discretion to provide for the support of the partiesí children.† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).† The district court abuses its discretion when it establishes child support in a manner that is against logic and the facts on record.† Id.† In cases such as the present one, where the parties share joint physical custody,

[a]pplication of the Hortis/Valento formula * * * is an application of the guidelines.† Under that formula, the guideline child support amount is the amount indicated by the guidelines, but only for the periods of time that the other parent has actual custody of the children.†

 

Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001).† The district court may deviate from the guidelines only if it determines that deviation is needed to serve the childrenís best interests and if the deviation is supported by the statutorily required findings.† Rogers v. Rogers,622 N.W.2d 813, 819 (Minn. 2001); Schlichting, 632 N.W.2d at 793.†

When a district court deviates from the guidelines it must

make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in paragraph (c) and how the deviation serves the best interest of the child.

 

Minn. Stat. ß 518.551, subd. 5(i) (2000).† In turn, ďparagraph (c)Ē directs the district court to consider six factors that address the childrenís needs and the parentís resources.† Minn. Stat. ß 518.551, subd. 5(c).†

In Schlichting, this court held that the district courtís findings were minimally sufficient to justify deviation from the child-support guidelines where the findings described the partiesí custody arrangement, motherís employment status and income, and fatherís support obligation and included a calculation of the partiesí respective incomes and cash flow.† Id. at 793-94.† In the present case, the district court went one step further than in Schlichting by setting forth the statutory criteria and specifically stating that it had considered each factor in reaching its decision.† While the district courtís findings do not specifically address each statutory element in order, they do address the elements relevant here.† And, because those findings are supported by the record, they are sufficient to justify deviation from the guidelines.†

Parentís Resources

The district court noted that both parties have limited financial resources, that father owns real property, and that he received $155,234.24[1] in a personal-injury settlement in December 1999,†and that motherís yearly income is less than $17,000.

Childrenís Needs

The district court also found that the partiesí six-year-old son has cerebral palsy and other medical problems, including reactive airway disease, chronic obstructive lung disease, vision difficulties and behavioral issues, and that the parties also plan to have their seven-year-old son tested for possible neurological or psychological problems.†

Childrenís Standard of Living

The district court found that the children live with father during the school year and with mother during the summer.† The court expressed a desire to ďprevent either party from having to generate monthly out of pocket money,Ē indicating that the childrenís standard of living could be negatively impacted if either parent were paying the other support.

Tax Exemption

The district court awarded father the income-tax-dependency exemptions for the minor children and stated that fatherís benefit from these exemptions could be roughly equivalent to the amount available under the child-support guidelines.† While the district court did not explain precisely how father would achieve this benefit, the findings reflect consideration of the partiesí relative resources and the possibility of fatherís income-tax liability for income from his real property and personal-injury settlement.† See Rogers, 622 N.W.2d at 823 (stating that the evidence was sufficient to support the district courtís award of the tax exemption where the district court considered the partiesí ďrelative resourcesĒ).† Further, father failed to present sufficient evidence to prove that he would not have sufficient taxable income to take advantage of the exemptions.†

Debt

The district court noted motherís debt for attorney fees and required father to pay her $5,000 for that debt.† While the district court did not make note of it in its findings, the evidence also indicates mother had an unsecured debt of $776 and a secured debt of $1,434.14.†

Public Assistance

While father correctly notes that the district made no findings regarding the partiesí receipt of public assistance, neither party presented evidence of the receipt of any public assistance.† Thus, father cannot fault the district court for failing to discuss public assistance, and this factor is not applicable to this case.† Cf. Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (stating party who fails to provide district court with information necessary to grant partyís motion cannot complain about denial of that motion).

††††††††††† As we indicated in Schlichting, we prefer that the district courtís findings in support of deviation be itemized, complete, and specific.† See Schlichting, 632 N.W.2d at 793.† The district courtís findings here are sufficiently explicit to justify deviation from the child-support guidelines.

††††††††††† Affirmed.

 

 



[1] The district court ordered father to pay mother $14,733.34 of the settlement monies.† Father does not dispute the award.