This opinion will be unpublished and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

C3-01-2033

 

 

In re the Marriage of:

David Anthony Weeks,

petitioner,

Respondent,

 

vs.

 

Susan Kay Weeks,

Appellant.

 

 

Filed May 21, 2002

Affirmed
Foley, Judge
*

 

Washington County District Court

File No. F8992958

 

Sarah Martin Arendt, Foster, Wentzell, Hedback, Brever, Arendt & Carlson, P.L.L.C., 2855 Anthony Lane South, Suite 201, St. Anthony, MN 55418-3265 (for respondent)

 

Steven T. Hennek, Hennek, Klaenhammer & Lees, P.A., 2585 Hamline Avenue North, Suite A, Roseville MN 55113 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Foley, Judge.


U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant challenges portions of the district court’s amended dissolution judgment pertaining to custody and child support.  Because we see no abuse of discretion in the district court’s decisions, we affirm.

FACTS

 

            Appellant Susan Weeks and respondent David Weeks are the parents of four minor children, now ages 11, 10, 8, and 6.  Prior to the dissolution of the parties’ marriage, appellant submitted a memorandum to the district court that stated in relevant part:

[Appellant] is proposing that the children would continue to attend school in the Hudson School District from her home and that there would be a swap of the access schedule during the summer so the children could spend more time with their father during the summer.  * * *  [Appellant] also recommends that [respondent] would have access to the children every weekend except one per month to allow her time with the children during one weekend a month.  This, of course, would be flip-flopped for the summer arrangement.

* * * *

[Appellant] should be awarded primary physical custody so that the children may continue to attend school in the Hudson School District.  [Respondent] should be awarded significant time with the children during the summer as is proposed by the Parenting Plan of [appellant].

 

            The parenting plan referenced in the memorandum provided two tabulated four-week schedules, one for use “during the school year” and the other for use “during the summer months.”  The “school year” schedule provided that the children would spend Monday to Friday with appellant and three weekends per month with respondent; the “summer months” schedule provided that the children would spend Monday to Friday with respondent and three weekends per month with appellant.  The parenting plan also provided that “[respondent] agrees to cooperate with the minor children’s schedules for attendance of summer school in the Hudson school district.”  Neither appellant’s memorandum nor her parenting plan mentioned child support.

            The district court intended to adopt appellant’s proposal for custody in the dissolution judgment, which states that “[appellant] has proposed, and the Court hereby Orders, the following access schedule[.]”  However, the judgment did not include all the provisions of appellant’s proposal.  Relative to custody, the judgment reads: 

A.        During the school year [respondent] shall have the children the first, third, and fourth weekend of each month.  * * *

B.        During the summer months when the children are not in school, [appellant] will have the first, third, and fourth weekend of each month.  * * * This schedule shall commence on the weekend following the last day of school and last until the first weekend before the first day of school.

* * * *

D.        [Respondent] shall cooperate with the children’s schedules for summer school in the Hudson school district.

 

Unlike appellant’s memorandum and her parenting plan, the judgment did not state that the children would spend the weekdays of the summer months with respondent.

            The judgment also provided for child support:

 [Respondent] shall pay to [appellant] the amount of Nine Hundred Seventy-Two Dollars and Sixty Six cents ($972.66) per month as and for child support, payable in equal installments of Four Hundred and Eighty-Three Dollars and Thirty-Three cents ($483.33) on the first (1st) and fifteenth (15th) days of each month.

 

The child support provision did not reflect that the children would be spending three months of the year with respondent, the child support obligor.

            After the parties’ attorneys had attempted unsuccessfully to settle some of the issues raised by the judgment, appellant, acting pro se, served a notice of motion and motion to compel pertaining to various parts of the judgment.  Respondent served a notice of motion and motion for an order clarifying the custody provision of the dissolution judgment because it did “not provide for [his] having the minor children in his care during [the] summer months” and for an order “establishing support for [respondent] from [appellant] during the summer months during which he has the children.”  Appellant then served a responsive notice of motion and motion for an order denying respondent’s motion.  With this, appellant served an affidavit in which she challenged the district court’s finding as to her own net income and stated that she knew of someone who had a custody arrangement similar to respondent’s and who paid “child support year round including during the summer period when he has custody.” 

            At the hearing on the parties’ motions, neither party addressed the issue of appellant paying child support. Appellant argued that respondent should pay child support every month; respondent’s attorney argued that respondent should not have to pay child support during the summer months when he had the children. 

            Respondent then submitted amended findings of fact, conclusions of law, order for judgment, and judgment and decree.  He proposed adding the underlined language:

B.        During the summer months when the children are not in school, [respondent] shall be the primary physical custodian of the children. [Appellant] will have the first, third, and fourth weekend of each month. 

* * * *

[Respondent] shall pay to [appellant] * * * child support * * * during the months that [appellant] has the primary physical custody of the minor children. * * *

            During the months that [respondent] has the primary physical custody of the children, [appellant] shall pay to [respondent] the sum of $1,147.18 per month for the support of the minor children.  Said support shall be payable in equal installments of $573.59 on the 1st and 15th days of said months.

 

In response to the proposed changes, appellant submitted both an affidavit and a letter stating that the underlined language should be stricken and that she had understood there would be no changes in child support following the hearing.[1] 

The district court adopted respondent’s proposed amendments in its amended judgment, and appellant now challenges them.

D E C I S I O N

I.  Custody

 

            A district court has broad discretion to provide for the custody of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

            Appellant contends that the district court abused its discretion by modifying custody without applying the appropriate statutory criteria.  But a review of the record indicates that the district court did not modify custody; it merely clarified the judgment by amending it to express the custodial arrangement implicit in the parties’ submissions to the court.

            The original judgment provided that appellant would have custody one weekend per month during the school year, when the children were with her during the week, and three weekends per month during the summer. However, it neglected to state that the children would be with respondent during the week in the summer.  Taken literally, the original judgment would have reduced respondent’s time with his children to one weekend per month in the summer.  There is no indication that either party or the district court intended this result.

            In fact, the record shows they intended the opposite.  The original judgment ran directly counter to two documents the court had received from appellant herself.  In her pre-trial memorandum, appellant explained that “there would be a swap in the access schedule during the summer so the children could spend more time with their father” and that “[respondent] should be awarded significant time with the children during the summer.”  In the parenting plan, appellant provided a detailed schedule for the summer months that showed the children spending the week with respondent. 

            There was no abuse of discretion in the district court’s clarification of the custody provisions to conform to the parties’ parenting plan.

II.  Child Support

            A district court has broad discretion to provide for the support of the parties’ children.  Rutten, 347 N.W.2d at 50The original judgment provided that respondent would pay appellant guideline monthly child support of $972.66 per month, 12 months a year.  The amended judgment provides that respondent will not pay child support during the summer months when he has the children and that appellant will pay him guideline child support of $1,147.18 during those months.

Appellant argues that the change to child support was not a clarification but a modification and that respondent failed to show the requisite change in circumstances.  However, the amended custody provision itself constitutes a change in circumstances:  the judgment now provides that respondent has the children for three months per year.  The district court did not abuse its discretion by amending child support to conform to the amended custody provision.[2]

            Affirmed.



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

[1] However, both the responsive motion appellant submitted before the hearing and the hearing transcript include discussions of child support, and neither indicates that appellant raised any procedural challenge to respondent’s motion.

[2] At oral argument, appellant’s attorney implicitly if not explicitly contended that appellant had no notice of and no opportunity to oppose respondent’s motion that she pay child support during the summer.  However, the record reflects that respondent properly noticed the motion and that appellant did not oppose it either in her responsive motion or at the hearing.