This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Robyn Kelli Fowler, f/k/a
Robyn Kelli Cotton,
James Mark Borseth,
Reversed and remanded
Dakota County District Court
File No. F6942211
David A. Jaehne, Stephen M. Meisinger, Suite 109, 60 East Marie Avenue, West St. Paul, MN 55118 (for respondent)
Richard J. Sheehan, Harvey & Sheehan, Ltd., Suite 555, 7401 Metro Boulevard, Minneapolis, MN 55439 (for appellant)
Considered and decided by Stoneburner, Presiding Judge, Harten, Judge, and Anderson, Judge.
Appellant James Borseth (father) appeals the district court’s order modifying his child-support obligation, arguing that the court abused its discretion by (1) increasing his child-support obligation above the guidelines; (2) decreasing his visitation schedule with the children; and (3) ordering him to obtain life insurance to secure his support obligation. Because the district court failed to make findings on whether the current award is unreasonable or unfair and because mother is not entitled to an upward deviation from the guidelines based on father’s reduced visitation schedule, we reverse and remand.
Father and mother, respondent Robyn Borseth, divorced in February 1994. The dissolution judgment granted joint legal custody and gave sole physical custody of the parties’ two children, then ages four and two, to mother subject to reasonable visitation by father. The judgment provided father with visitation every other weekend, two full weeks during the year, one night per week, and on alternating holidays. The decree also ordered father to pay mother $1,200 per month in child support.
Father advised mother in February 2001 that his employer was transferring him to London, Ontario. Because of his new position, father now earns substantially more than he did at the time of the divorce. As a result, mother filed a motion seeking an increase in father’s child-support obligation.
In addition to seeking an increase in father’s child-support obligation, mother’s motion also requested a new visitation schedule and asked the court to order father to maintain a life-insurance policy naming the parties’ children as beneficiaries in order to secure his support obligation.
The district court issued an order on July 16, 2001 granting mother’s motion to increase father’s child-support payment noting that, based on his substantial increase in income, the children are entitled to participate in their father’s “new prosperity.” The court ordered father to pay $1,780.50 per month pursuant to the guidelines. And the court ordered father to pay an additional $399 per month above the guidelines, noting that father’s relocation will substantially reduce his visitation schedule, causing mother to incur additional costs due to increased time with the children. The court also ordered father to secure his future support obligation with all life insurance available to him through employment. Father appeals.
This court will reverse a district court’s order regarding the modification of child support only if the district court abused its discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). But the district court must exercise its discretion within the limits set by the legislature. Id. A reviewing court will reverse only if the district court issued a “clearly erroneous conclusion that is against logic and the facts on record.” Id. (quotation omitted).
I. Modification of child support
The district court can modify a child-support order when the party seeking the modification establishes that a substantial change in circumstances has occurred. See Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996). Substantially increased earnings of a support obligor can be the basis for modification. Minn. Stat. § 518.64, subd. 2(a)(1) (2000). A substantial change in circumstances is presumed, and the terms of the existing order are rebuttably presumed to be unreasonable and unfair, when the moving party establishes that
the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.
Minn. Stat. § 518.64, subd. 2(b)(1).
The district court determined that application of the guidelines to father’s increased income would result in a figure both $50.00 and 20% greater than the existing award. For purposes of this appeal, we assume that the district court’s reference to a “modification of support” is a reference to an application of the guidelines to the parties’ current circumstances as described in Minn. Stat. § 518.64, subd. 2(b)(1), rather than an actual modification of support. Therefore the statutory presumption of a substantial change in circumstances that makes the current support award unreasonable and unfair was satisfied.
The district court, however, failed to consider the evidence that father claims rebuts the presumption that the current award is unreasonable and unfair. Evidence in the record indicates that $1,300 fully satisfies all of the children’s monthly needs. Therefore, father argues, that his current contribution of $1,200 to their support is more than reasonable and fair, and that the increase in his monthly support obligation to $1,780.50 is unfair and unreasonable because the award requires him to pay child support that exceeds 100% of the children’s entire needs.
We remand to the district court for findings and for a determination regarding (1) whether father has rebutted the statutory presumption that the current award is unfair and unreasonable under these facts and, if so, (2) whether father has presented a sufficient basis for a downward departure from the guidelines. By remanding for consideration and findings on this issue we express no opinion about the merits of father’s argument.
II. Adjustment to support award for decreased visitation
Father contends that the district court also abused its discretion by ordering him to pay $399 above the child-support guidelines. The court deviated from the guidelines based on its conclusion that father’s relocation will substantially reduce his visitation schedule resulting in increased costs to mother because of her additional time with the children. Father argues that the evidence does not support the court’s conclusion that his overall visitation time will decrease and furthermore that decreased visitation time does not support an upward departure from the guidelines. We agree.
The district court may depart from the guidelines. See Minn. Stat. § 518.551, subd. 5(i) (2000). If a court deviates from the guidelines, however, 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.
Id. One of the factors listed under paragraph (c) is “the financial needs * * * of the * * *
children to be supported.” Minn. Stat. § 518.551, subd. 5(c)(2) (2000). This court has
The trial court must make findings regarding the children’s needs and the needs and resources of each parent to establish its rationale for any deviation from the guidelines.
Swick v. Swick, 467 N.W.2d 328, 332 (Minn. App. 1991), review denied (Minn. May 16,
1991). When a district court fails to issue findings supporting its decision to deviate from the guidelines, a reviewing court is unable to review the district court’s rationale for its deviation from the guidelines. Bliss v. Bliss, 493 N.W.2d 583, 586 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).
In this case, the district court did not make specific findings with respect to the children’s needs. And there is no authority to support the court’s upward deviation from the guidelines based on a change in the visitation schedule. Mother has sole physical custody. This is not a Hortis/Valento case where we adjust support based on time with each parent. The supreme court has noted that:
Hortis/Valento is not to be applied in circumstances of sole physical custody, absent findings of grounds for deviation from the guidelines under Minn. Stat. § 518.551, subd. 5(i).
Rogers v. Rogers,622 N.W.2d 813, 821 (Minn. 2001).
As a result, father is not entitled to a downward deviation from the guidelines for time when the children are with him and mother is not entitled to an upward deviation for time when the children are with her. Furthermore, father’s evidence is that he intends to continue to exercise as much visitation after the move as he did before the move but on a different schedule and mother does not oppose such visitation.
Visitation time is not a proper basis for a deviation from the guidelines in a sole-physical-custody situation. The upward departure from the guidelines is reversed.
Father argues that the district court abused its discretion by ordering him to secure his child-support obligation with life insurance because (1) the original divorce judgment did not require him to secure the support obligation; (2) he has always made his child- support payments on time and in full; and (3) he is not able to provide life insurance to his new spouse and subsequent child because the court required him to secure his obligation with all of the insurance available through his employer.
A district court has “the power to order a child support obligor to obtain or maintain life insurance to secure child support.” Emerick on behalf of Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996) (citation omitted); see alsoMinn. Stat. § 518.24 (2000) (“In all cases when * * * support payments are ordered, the court may require sufficient security to be given for the payment of them according to the terms of the order.”).
The decision to require an obligor to maintain life insurance as security for a child- support obligation is within the district court’s discretion. See Riley v. Riley, 369 N.W.2d 40, 44 (Minn. App. 1985), review denied (Minn. Aug. 29, 1985). But the district court ordered appellant to “secure his future support obligation by maintaining such life insurance as is available to him at no cost through his employer, and naming the minor children as beneficiaries thereof.” There is no evidence of the amount of life insurance available through father’s employment or the amount necessary to secure his support obligation; therefore there is no support in the record for the requirement that father secure the obligation with all of the life insurance available to him through employment. On remand, the court shall specify the amount of insurance necessary to secure the obligation and shall allow father the option of using insurance available through his employer or from another provider to fulfill this obligation.
IV. Visitation schedule
Father argues that the district court abused its discretion by reducing his visitation schedule with the children. Mother indicated in her brief, and at oral argument, that she has no objection to remanding the case on the visitation issue. She “has no objection to [father] exercising additional visitation time.” The parties, therefore, agree that the court should reevaluate the visitation schedule on remand.
Substantial modifications to a visitation schedule by the court require an evidentiary hearing and substantial decreases in visitation are permitted only when the moving party presents a prima facie case that “visitation is likely to endanger the child’s physical or emotional well being.” Braith v. Fischer, 632 N.W.2d 716, 721 (Minn. App. 2001) (citing Minn. Stat. § 518.175, subd. 5), review denied (Minn. Oct. 24, 2001). An insubstantial modification to a visitation schedule does not require an evidentiary hearing but will be upheld only if it serves the best interests of the children. See id.; see also Minn. Stat § 518.175, subd. 5 (2000) (noting that a court shall modify visitation when “modification would serve the best interests of the child”).
Reversed and remanded.