This opinion will be unpublished and

may not be cited except as provided by

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






In re: James P. Gese, petitioner,


Nadean M. Rasmussen,


Filed October 1, 2002

Affirmed in part, reversed in part, and remanded

Minge, Judge


Washington County District Court

File No. F4895600



Sean P. Stokes, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for respondent)


Ronald B. Sieloff, Kent B. Gravelle, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for appellant)


Considered and decided by Willis, Presiding Judge, Minge, Judge, and Parker, Judge.*


U N P U B L I S H E D  O P I N I O N

MINGE, Judge

Appellant-mother challenges the child support magistrate’s order, arguing that the magistrate should have further reduced her child support obligation.  Specifically, she argues that the magistrate (a) overstated her income as an airline reservation agent by neglecting to consider the decrease in her income occurring after September 11, 2001; and (b) miscalculated her child support obligation under the Hortis/Valento formula by failing to account for her visitation time with the child.  Because the child support magistrate failed to consider appellant’s current income after September 11, 2001, we reverse and remand for a more accurate accounting of her current income and for child support to be based on her current income.  We affirm the magistrate’s application of the Hortis/Valento formula.



            On May 8, 1990, appellant-mother Nadean Rasmussen and respondent-father James Gese dissolved their nine-year marriage by a stipulated judgment and decree.  The stipulation provided for joint legal and physical custody of the parties’ two children: M.R.G., now 19, and M.J.G., now 14.  The parties agreed that respondent would have custody of the children during the school year and appellant would have custody during the summer months.  They also agreed to a liberal visitation schedule.  The parties agreed that respondent would carry all medical, dental, and life insurance benefits for both children, as long as they are available to him through his employer, and that both parents would equally provide for the financial welfare of their children.

            In January 1998, respondent moved for child support.  In May, the district court maintained the parties’ joint physical custody of both children, but amended the custody and visitation schedule.  The court also ordered respondent to continue to provide the primary residence for M.J.G. during the school year and ordered appellant to continue to provide the primary residence for M.J.G. during the summer.  In addition, the court granted appellant alternate-weekend visitation with both children during the school year and overnight visitation with M.J.G. every Tuesday and every Thursday prior to appellant’s weekend visitations; the court granted respondent Wednesday-night visitation with M.J.G. during the summer months.  The court ordered appellant to pay $305 per month in child support based on (1) the Hortis/Valento formula, which accounts for respondent’s nine-month custody of M.J.G.; (2) respondent’s twelve-month custody of M.R.G. in 1997; and (3) appellant’s net monthly income of $1,635.76. 

            In December 2001, appellant moved for modification of child support arguing that her support obligation should be decreased because (1) M.R.G. is emancipated; (2) respondent has decreased needs; and (3) her cost of living has changed.  In January 2002, the child support magistrate (CSM) decreased appellant’s child support obligation from $310[1] to $245.32.  The CSM found that M.R.G. is emancipated, and because there was no change in physical custody of M.J.G., the CSM applied the Hortis/Valento formula to determine appellant’s ongoing child support obligation.  Based on the wage summaries provided by the Minnesota Department of Economic Security and information from the parties, the CSM found that appellant earns $2,800 in gross monthly income and $2,299 in net monthly income, after deducting $501 for taxes and social security.  This appeal followed. 



            Appellant seeks review of the CSM’s child support order, arguing that the CSM should have further decreased her child support obligation.  The standard for reviewing a CSM’s decision is the same as it would be if the district court had made the decision.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  This court will reverse a CSM’s order regarding the modification of child support “only if we are convinced that the [CSM] 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 argues that the CSM incorrectly calculated child support under the Hortis/Valento formula by using the parties’ joint physical custody—appellant’s three-month custody and respondent’s nine-month custody—rather than basing it on the 168 days of the year that appellant cares for M.J.G.  Where parents have joint physical custody, the Hortis/Valento formula is the appropriate method for determining child support in accordance with the statutory guidelines.  Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001); see Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986) (stating that “[t]he method for applying the guidelines to joint custody situations was set out in Hortis v. Hortis, 367 N.W.2d 633 (Minn. App. 1985)”), review denied (Minn. June 30, 1986).  Under the Hortis/Valento formula, the child support amount is the amount provided by the guidelines, but only for the periods of time when the other parent has actual custody of the child.  Valento, 385 N.W.2d at 862-63.  The “guideline support amount is presumed to be the correct support amount.”  Schlichting, 632 N.W.2d at 792.  The presumption, however, is rebuttable, and deviations from the guideline amount may be made with appropriate findings that give reasons for the deviations, discuss how they are in the child’s best interest, and address the factors in Minn. Stat.      § 518.551, subd. 5(c) (2000).  Minn. Stat. § 518.551, subd. 5(i) (2000 and Supp. 2001).

“Custody provisions contained in a stipulated decree must be accorded a good deal of deference.”  Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993).  The supreme court held that when parents agree to a specific denomination of physical and legal custody, and when the district court accepts that denomination, the parties will be bound by it.  Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999). 

Thus, when parents stipulate to a physical-custody arrangement and the district court adopts that arrangement, the dispositive factor in determining whether the arrangement establishes sole physical custody for one parent or joint physical custody for both parents, and therefore whether it is presumptively appropriate to apply the Hortis/Valento child support formula, is the district court’s description of the physical-custody arrangement.


Nolte v. Mehrens, 648 N.W.2d 727, 730 (Minn. App. 2002). 

Appellant argues that neither party has sole custody at any time during the year but has only “primary custody and primary residence.”  Thus, she argues that the method of calculating child support “is to prorate the amount each parent would owe” under the guidelines by the proportion of time the children spend with the other parent.  Appellant contends that although the May 8, 1998, order allocates M.J.G.’s primary residence on a nine-month/three-month basis, the routine daily care and control of M.J.G. is shared equally by the parties.  The parties’ decree, however, provides that the parties share joint physical custody in an arrangement where M.J.G. lives with respondent during the school year and with appellant during the summer.  The May 8, 1998, order, which modified the parties’ decree, clearly delineates between physical custody of M.J.G. and visitation with M.J.G.

Although appellant spends more time with M.J.G. than the three allotted summer months, the custody order clearly apportions this additional time to her as visitation and it does not constitute additional custody time.  If appellant believes that her child support obligation should be decreased because the amount of care she provides for the child is not accurately reflected in the parties’ stipulation, then appellant should bring a motion to change the existing custody order. 

Under the Hortis/Valento formula, the child support amount is the amount provided by the guidelines, but only for the periods of time the other parent has actual custody of the child, not visitation with the child as appellant proposes.  Appellant’s proposal for time calculation contrasts with the supreme court’s reasoning in Rogers v. Rogers, 622 N.W.2d 813, 820 (Minn. 2001), which discredits the determination of child support based on “the percentage of time children are in the physical care of the noncustodial parent.”  Here, the CSM properly acknowledged that the party’s custody order reflects joint physical custody of M.J.G. and properly determined that the presumptive guideline amount applied, minus the time that the other parent has actual custody of the child.

            Appellant also argues that the CSM erroneously found that M.J.G. resides with respondent because she and respondent share joint physical custody, and that the CSM mischaracterized the May 8, 1998, order by stating that it resulted in M.J.G. residing with appellant one-fourth of the time and with respondent one-fourth of the time.  The parties share joint physical custody and the CSM properly acknowledged and based appellant’s child support obligation on the school year and summer custody division.  The CSM’s finding that each party has M.J.G. one-fourth of the time is harmless error.  See Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979) (stating that where the findings necessary for a legal conclusion are adequately supported, a court’s inclusion of other unsupported findings is harmless error).  The CSM recognized that respondent provides M.J.G.’s primary residence during the school year and that appellant provides M.J.G.’s primary residence during the summer.  This and similar findings are supported by the parties’ stipulation and the May 8, 1998, order, both of which provide for this division of custody.


Appellant argues that the district court erred by calculating her income from Northwest Airlines based on the first three quarters of 2001, rather than on her      October 2001 paystub, which reflects “a precipitous drop in income caused by * * * the 9/11 attack.”  Based on her October 2001 paystub, appellant argues that her gross monthly income is $1,901.38 and her net monthly income is $1,587.39, rather than the $2,800 gross monthly income and the $2,299 net monthly income that the CSM found.  A child support obligor’s current net income must be determined for purposes of setting child support.  Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987).  A CSM’s determination of net income for purposes of calculating child support will be affirmed if it has a reasonable basis in fact.  Duffney v. Duffney, 625 N.W.2d 839, 843 (Minn. App. 2001).

Respondent argues that, because appellant failed to offer her October 2001 paystub into evidence at the hearing, it is not part of the record on appeal.  See Minn. R. Civ. App. P. 110.01 (stating that only the papers filed in the district court, the exhibits, and transcript of the proceedings constitute the record on appeal).  It is unclear from the record, however, whether appellant filed her October 2001 paystub with the court.  But it is clear that the CSM did not consider it when determining that appellant’s gross monthly income was $2,800.  The CSM most likely arrived at the $2,800 gross monthly income figure by averaging her gross income from the figures provided by the Department of Economic Security for the first three quarters in 2001 ($8,166.19 + $8,694.96 + $8,696.51 = $25,557.66 ÷ 9 months = $2,839.74).  Because the CSM did not use appellant’s current income to determine child support, we remand for a more accurate accounting of her current income after September 11, 2001.  If her current income has fluctuated dramatically since September 11, the CSM may adjust her monthly child support obligation to reflect the variations in income.  See Minn. Stat. § 518.57, subd. 2 (2000) (stating that the court can establish monthly payments that reflect the variations in income of an obligor with seasonal income).  Section 518.57, subdivision 2, provides for adjustment of monthly child support payments for obligors with seasonal income.  Appellant’s situation is analogous because it is likely that September 11 dramatically affected her income. 

Appellant also claims that the court erred by failing to deduct monthly union dues of $29.50 and pension payments of $38.03 from her gross income.  Because we are remanding for a determination of appellant’s current income so that her child support obligation will be based on her current income, the CSM should also account for any legitimate deductions.  See Minn. Stat. § 518.551, subd. 5(b) (2000 and Supp. 2001) (defining net monthly income as total monthly income less deductions, including reasonable pension deductions and union dues).

Affirmed in part, reversed in part, and remanded.

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

[1] Based on a cost-of-living adjustment, the court increased appellant’s child support obligation from $305 to $310.