This opinion will be unpublished and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

C6-01-1538

 

In Re:

 

Susan Lynn Trehus,

Petitioner,

Respondent,

 

vs.

 

Michael Jeffrey Trehus,

Appellant.

 

Filed ­­­February 5, 2002

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. DC172965

 

Michael Jeffrey Trehus, 675 Shadow Court, Lino Lakes, MN 55014 (appellant pro se)

 

Amy Klobuchar, Hennepin County Attorney, Judith A. Harrigan, Assistant County Attorney, 525 Portland Avenue, Suite 1210, Minneapolis, MN 55415; and

 

 Susan Lynn Trehus, 5722 Troy Dr., Mounds View, MN 55112-1240 (respondent pro se)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

Appellant-father challenges the order granting respondent-mother’s motion to modify downward her child support obligation.  Appellant argues that the child support magistrate’s deviation from the guideline amount, based on respondent’s obligation to a later-born child, is inconsistent with Minn. Stat. § 518.551, subd. 5f (2000).  We affirm.

FACTS

            In July 1985, appellant Michael Jeffrey Trehus and respondent Susan Lynn Trehus were married; their child, J.N.T., was born in 1986.  In January 1990, the parties separated.  In April 1991, temporary physical custody of J.N.T. was awarded to appellant.  On November 17, 1992, the parties’ marriage was dissolved.  Appellant received permanent physical custody of J.N.T.  The judgment reserved respondent’s obligation to pay child support because she was a full-time student and had a nominal income. 

Hennepin County administratively set respondent’s child support obligation at $387.17 per month, effective January 1, 2000.  In May 2000, respondent brought a motion to modify her child support obligation and requested retroactive reduction.  Respondent also moved to appeal the cost of living adjustment. 

On August 15, 2000, the child support magistrate found that, pursuant to Minn. Stat. § 518.551, subd. 5, respondent’s child support obligation would be $194 per month, based on a net monthly income of $882.02 from re-employment compensation, and that this amount was not a deviation from the Minnesota Child Support Guidelines (guidelines).  The magistrate also found that respondent failed to demonstrate that she was entitled to retroactive reduction of child support.  The magistrate granted respondent’s motions to suspend the proposed cost of living adjustment for the year 2000 and to modify downward her child support obligation on a temporary basis.  Respondent’s child support obligation was temporarily reduced to $194 per month.  On November 22, 2000, a review hearing was held, at which appellant elected to appear via telephone. 

On December 19, 2000, the child support magistrate issued findings of fact, conclusions of law, and an order.  The magistrate found that:  (1) respondent is also the parent of a minor child, J.R.F., born July 30, 1993, who resides with her and for whom she receives child support of $350 per month; (2) respondent’s child support obligation for J.N.T. was previously established at $387.17 per month, based on a net monthly income of $1,548; (3) in an order dated August 15, 2000, respondent’s child support obligation was temporarily reduced to $194 per month, based on a net monthly income of $882.02 from re-employment compensation; (4) respondent found new employment with an average net monthly income of $1,584; and (5) pursuant to Minn. Stat. § 518.551, subd. 5, respondent’s child support obligation would be $396 per month, which is not a deviation from the guidelines.  The magistrate’s order stated that beginning January 1, 2001, and continuing each month thereafter, respondent’s “child support obligation is REINSTATED and she shall pay $387.17 per month as ongoing current child support.” 

            In January 2001, respondent moved for an ex parte order, claiming inability to meet expenses.  The ex parte order was granted, temporarily reducing respondent’s child support obligation to $107.42 every two-week pay period, until the matter could be considered at a hearing.  Respondent again moved to modify downward her child support obligation.

            On March 15, the matter was heard before a child support magistrate.  In an order dated April 9, 2001, the magistrate found the guidelines calculation to be $396 per month, granted respondent’s motion for a downward modification of her child support obligation via a guidelines deviation, and set respondent’s ongoing child support obligation at $200 per month.  The magistrate found that respondent “is now incurring a cost of $185.63 per month for medical coverage for [J.R.F.].”  The magistrate also found that “[t]he expenses incurred for [J.R.F.] are a sufficient basis for a deviation.”  The magistrate’s order concluded:

The facts in this case indicate that there has been a substantial change in circumstances which renders the existing order unreasonable and since [respondent] has an additional expense of approximately $200 for medical insurance coverage for the minor child [J.R.F.] in her custody.

 

On May 17, appellant filed a pro se motion for review, arguing that the April 9 order did not comply with Minn. Stat. § 518.551, subd. 5f (2000), and disputing the evidence, findings, conclusions, and order.  On June 29, the child support magistrate issued an order granting in part and denying in part appellant’s motion for review of the April 9 order.  The magistrate found:

The Court properly deviated from guideline [support] due to the special needs of the subsequent child, the monthly expenses of [respondent], and the inability of [respondent] to meet expenses and to provide for all her children.

 

The magistrate set respondent’s child support obligation at $225 per month.  This appeal followed.

D E C I S I O N

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).  Appellant contends that the child support magistrate’s order reducing respondent’s child support obligation was erroneous and constitutes an abuse of discretion.

Specifically, appellant argues that the use of respondent’s later-born child to reduce her monthly support obligation for J.N.T. is inconsistent with Minn. Stat. § 518.551, subd. 5f (2000).  Minn. Stat. § 518.551, subd. 5f, specifically deals with the effect of subsequent children. 

The needs of subsequent children shall not be factored into a support guidelines calculation under subdivision 5.  The fact that an obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed.  However, the fact that an obligor has subsequent children shall be considered in response to a request by an obligee for a modification to increase child support.  In order to deviate from the support guidelines in subdivision 5 to consider the needs of subsequent children, the trial court must:

 

(1) find the obligor’s total ability to contribute to dependent children, taking into account the obligor’s income and reasonable expenses exclusive of child care.  The obligor’s expenses must be:

 

(i) reduced as appropriate to take into account contributions to those costs by other adults who share the obligor’s current household; and

 

(ii) apportioned between the parent and any subsequent child with regard to shared benefits, including but not limited to, housing and transportation;

 

(2) find the total needs of all the obligor’s children, and if these needs are less than the obligor’s ability to pay, the needs may become the obligor’s child support obligation.  When considering the needs of subsequent children, the trial court must reduce those amounts as appropriate to take into account the ability to contribute to those needs by another parent of the children;

 

(3) make specific findings on the needs of the child or children who are the subject of the support order under consideration; and

 

(4) exercise discretion to fairly determine the current support obligation and the contribution left available for other children, considering that the support obligation being determined should be in an amount at least equal to the contribution for a subsequent child.

 

Minn. Stat. § 518.551, subd. 5f.

“Support money” or “child support” means:

 

            (1) an award in a dissolution, legal separation, annulment, or parentage proceeding for the care, support and education of any child of the marriage or of the parties to the proceeding; or

 

            (2) a contribution by parents ordered under section 256.87.

Minn. Stat. § 518.54, subd. 4 (2000).

            “Support order” means a judgment, decree, or order, whether temporary, final, or subject to modification, issued by a court or administrative agency of competent jurisdiction, for the support and maintenance of a child, including a child who has attained the age of majority under the law of the issuing state, or a child and the parent with whom the child is living, that provides for monetary support, child care, medical support including expenses for confinement and pregnancy, arrearages, or reimbursement, and that may include related costs and fees, interest and penalties, income withholding, and other relief.  This definition applies to orders issued under this chapter and chapters 256, 257, and 518C.

 

Minn. Stat. § 518.54, subd. 4a (2000).

Minn. Stat. § 518.551, subd. 5(i) (2000) sets forth the procedure the court is to follow when deviating from the guidelines:

The guidelines in this subdivision are a rebuttable presumption and shall be used in all cases when establishing or modifying child support.  If the court does not deviate from the guidelines, the court shall make written findings concerning the amount of the obligor’s income used as the basis for the guidelines calculation and any other significant evidentiary factors affecting the determination of child support.  If the court deviates from the guidelines, the court shall 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.  The court may deviate from the guidelines if both parties agree and the court makes written findings that it is in the best interests of the child, except that in cases where child support payments are assigned to the public agency under section 256.741, the court may deviate downward only as provided in paragraph (j).  Nothing in this paragraph prohibits the court from deviating in other cases.  The provisions of this paragraph apply whether or not the parties are each represented by independent counsel and have entered into a written agreement.  The court shall review stipulations presented to it for conformity to the guidelines and the court is not required to conduct a hearing, but the parties shall provide the documentation of earnings required under subdivision 5b.

           

Minn. Stat. § 518.551, subd. 5(i).

Section 518.551, subd. 5f, begins with a general prohibition against factoring the needs of subsequent children into a support guidelines calculation.  Subdivision 5f then provides two specific situations:  (1) the fact that an “obligor had additional children after the entry of a child support order is not grounds for a modification to decrease the amount of support owed”; and (2) “the fact that an obligor has subsequent children shall be considered in response to a request by an obligee for a modification to increase child support.”  In the instant case, respondent (the obligor) was seeking a modification to decrease her child support obligation.  But because her child support obligation was initially reserved, there was no “entry of a child support order” for J.N.T. before J.R.F.’s birth in July 1993.  Consequently, the first subdivision 5f situation is not presented.  And because appellant (the obligee) was not seeking a modification to increase child support, the second situation is also absent. 

 “Children by a subsequent marriage, while relevant to a trial court’s decision, are not to be factored into the child support guideline tables.”  Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).  “Consistent with Erickson we have held that the trial court can consider the obligor’s current family obligations in determining the obligor’s available resources.”  Hayes v. Hayes, 473 N.W.2d 364, 365 (Minn. App. 1991) (citations omitted).  “Prior decisions have recognized, however, a general limitation on excessive deference to the later obligation.”  Id. (citations omitted). 

The magistrate appropriately considered respondent’s obligation to support her later-born child when determining her child support obligation to J.N.T.  In accordance with law, the magistrate did not factor respondent’s later-born child into the guidelines calculation.  The magistrate made written findings providing what respondent’s child support obligation to J.N.T. would be pursuant to the guidelines and then gave reasons for deviating from the guidelines.  The magistrate also specifically addressed how the deviation served the best interests of the child.  The magistrate did not give excessive deference to respondent’s later-born child.  We conclude that the magistrate acted within her broad discretion in deviating from the guidelines to reduce respondent’s child support obligation.

Affirmed.