This opinion will be unpublished and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
Jason P. Loesch,
Filed July 30, 2002
Robert H. Schumacher, Judge
Timothy D. Lees, Hennek Klaenhammer & Lees, P.A., 2585 Hamline Avenue North, Suite A, Roseville, MN 55113 (for respondent)
U N P U B L I S H E D O P I N I O N
ROBERT H. SCHUMACHER, Judge
Although the parties agreed to and were granted joint physical custody, appellant-mother argues that the district court erred in applying the Hortis/Valento formula to determine the parties’ child support obligations because she cares for the parties’ child 82 percent of the time. We affirm.
Appellant Krystal Loesch, n/k/a Krystal Terlinde, (mother) and respondent Jason Loesch (father) dissolved their marriage in April 1995. The dissolution judgment, based on the parties’ stipulation, granted mother and father joint legal and physical custody of their minor child. The dissolution judgment provided:
"Joint physical custody” means that [mother] is awarded primary physical custody of the child except during the times set forth below when [father] shall have primary physical custody.
Father was awarded custody of the child every other weekend, four additional hours per week, alternating holidays and birthdays, and extended time during summer vacation. The dissolution judgment set father’s monthly child support obligation at $162.20. Pursuant to a review hearing in October 1997, father’s monthly child support obligation was increased to $400.25, by court order of November 29, 1997. After cost of living adjustments in May 1999 and in April 2001, father’s monthly child support obligation was increased to $445.
In July 2001, mother filed a motion seeking an order modifying the custody schedule, requiring father to quarterly report his income, reserving the issue of a retroactive increase in father’s child support obligation, allocating the expense of the child’s glasses, providing that the child’s orthodontic work proceed at the orthodontist she selected, and attorney fees. Father filed a notice of responsive motion and responsive motion seeking an order denying mother’s motion in its entirety. Father’s motion also requested the district court to modify and suspend his child support obligation due to the loss of his employment, to apply the Hortis/Valento formula, to deviate downward from the child support guidelines based on his student loan payments, to order reimbursement for the child’s glasses, to order mother to involve him in legal custody issues, to order the child’s orthodontic work to proceed at the orthodontist he selected, and to award him attorney fees. Father started a new job on October 17, 2001, that provided him with a net monthly income of $1,665.65. He filed a supplemental affidavit requesting retroactive modification of his child support obligation. The district court heard the matter on October 29, 2001.
On November 9, 2001, the district court issued an order granting father’s motion to calculate the parties’ child support obligations pursuant to the Hortis/Valento formula, denying both parties’ requests for retroactive modification of father’s child support obligation, denying both parties’ requests for attorney fees, granting mother’s request to have the child’s orthodontic work performed by the orthodontist she selected, and denying all other relief requested by either party. After applying the Hortis/Valento formula, the district court determined father’s monthly child support obligation to be $324.39, pursuant to the Minnesota guidelines. Mother appealed and father filed a notice of review.
Mother argues that the district court erred in applying the Hortis/Valento formula because she cares for the minor child 82 percent of the time and father cares for the minor child only 18 percent of the time. “Application of the Hortis/Valento formula to cases of joint physical custody is an application of the guidelines.” Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001) (citing Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986)).
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.
Id. (citation omitted).
[T]he presumptively correct, guideline child-support amount for parents with joint physical custody is the amount calculated under Minn. Stat. § 518.551, subd. 5(b), for each parent, less the amount offset by the Hortis/Valento formula. Any deviation from that amount requires the statutory findings.
This conclusion was not modified by the recent decision of the supreme court, holding that the guidelines do not contemplate the application of the Hortis/Valento child-support formula in a case of sole physical custody. Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001).
Id. at 793. “Application of the Hortis/Valento formula should be used in all joint physical custody cases.” Davis v. Davis, 631 N.W.2d 822, 828 (Minn. App. 2001) (footnote omitted) (quotation omitted).
Mother argues, although she and father agreed at the time of dissolution to share joint physical custody of their child, that the “content of the agreement represents a traditional custody arrangement whereby [she] has sole physical custody * * * subject to [father’s] right of reasonable visitation.” Mother argues that the 18 percent of the time that father cares for the child “does not rise to the level” of joint physical custody. She contends that the court should look to the content of the custody arrangement and not the form to establish child support.
Here, with the assistance and advice of counsel, mother and father agreed to joint physical custody. The district court reviewed and accepted the agreement of the parties, and issued a judgment granting the parties joint physical custody. “The rules of contract construction apply when construing a stipulated provision in a dissolution judgment.” Blonigen v. Blonigen, 621 N.W.2d 276, 281 (Minn. App. 2001) (citation omitted), review denied (Minn. Mar. 13, 2001).
Parties will be bound by a stipulated custody arrangement:
Custody provisions contained in a stipulated decree must be accorded a good deal of deference, in that they represent the terms specifically agreed to by the parties and adopted by the court. Where * * * the parties have agreed, by stipulated decree, to joint legal custody and joint physical custody, and the court has accepted that denomination, the parties will be bound by it.
Id. (quoting Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993)). “Joint physical custody does not require an equal division of time.” Davis, 631 N.W.2d at 828 (citation omitted). “ ‘Joint physical custody’ means that the routine daily care and control and the residence of the child is structured between the parties.” Minn. Stat. § 518.003, subd. 3(d) (2000).
In its November 2001 order, the district court stated that “the Hortis/Valento formula is part of the child support guidelines where the parties have been granted joint physical custody,” and that “[mother] failed to meet her burden to show that the Court should deviate from Hortis/Valento guideline support.” The district court concluded that “the Hortis/Valento formula therefore applies to the determination of each party’s child support obligation.” We conclude that the district court properly applied the Hortis/Valento formula to its determination of the parties’ child support obligations.
Father contends that the district court erred in denying his motion to retroactively modify his child support obligation. Appellate courts will not reverse a district court's decision on modification of child support unless that decision was an abuse of the district court's discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). Such an abuse occurs when the district court resolves the issue in a manner "that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).
Father argues that he was “entitled to relief nunc pro tunc to the date of service and filing of his motion.” (Emphasis added.) For support, father cites Minn. Stat. § 518.64, subd. 2(d) (2000), Gully v. Gully, 599 N.W.2d 814 (Minn. 1999), and County of Nicollet v. Haakenson, 497 N.W.2d 611 (Minn. App. 1993). Minn. Stat. § 518.64, subd. 2(d), provides that a “modification of support * * * may be made retroactive to the date of service of the motion.” (Emphasis added.) The Minnesota Supreme Court stated in Gully, that Minn. Stat. § 518.64, subd. 2(d), provides that, “a district court may order retroactive modification of a child support order to the date of service of the motion.” (Emphasis added.) Gully, 599 N.W.2d at 820. In a footnote to the Haakenson opinion, this court noted that “[r]etroactive modification is permissible under Minn. Stat. § 518.64, subd. 2(c) (1990)." Haakenson, 497 N.W.2d at 616, n.2. (emphasis added). Retroactive modification is permissible, but not mandatory. The district court did not abuse its discretion in denying father’s request for retroactive modification of his child support obligation.