This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Jean Canon, petitioner,
Robert Carl Moy,
Hennepin County District Court
File No. DC233391
Laurel E. Learmonth, Primus Law Office, P.A., 630 Wells Fargo Midland Building, 401 Second Avenue South, Minneapolis, MN 55401 (for respondent)
Linda M. Ojala, Kurzman, Grant & Ojala, 219 Southeast Main Street, Suite 403, Minneapolis, MN 55414 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Hudson, Judge, and Poritsky, Judge
Appellant challenges the district court’s modification of his child-support obligation, in which the court deviated from the Hortis/Valento formula and set his obligation at an amount more than the amount suggested by that formula. In addition, appellant challenges the effective date of the modification. Because we hold that the district court addressed the necessary factors in deviating from the guidelines, and because the court is given discretion in setting the effective date of a modification, we affirm.
Appellant-father Robert Carl Moy and respondent-mother Karen Jean Canon were married on August 16, 1986. A marriage dissolution was granted on December 28, 1998. At the time of the dissolution, the parties agreed that the mother would have sole physical custody of the parties’ two minor sons, ages nine and ten at the time of the dissolution. The mother voluntarily waived her right to spousal maintenance. The parties agreed that the father would pay guideline support, which was set at $1,760.64 using the statutory maximum in effect at that time.
Both parties are attorneys. The father is a full-time professor of law and also works as an outside consultant for law firms and private companies. The mother is currently a bank vice president employed part-time. At the initiation of the dissolution action, the mother was employed full-time as the director of the Volunteer Lawyer’s Network. During the course of the dissolution action the mother obtained new employment. The mother’s current part-time salary is greater than her salary from her previous full-time position. Neither party submitted any evidence showing that additional hours were available to the mother so that she can work full-time, but the father contends that the mother previously worked full-time at Faegre & Benson.
Under the marital-termination agreement, the father received visitation that included overnight stays for two nights on alternate weekends and visitation after school into the evening on two other days. In January 2001, the older son, D.C.M., began staying with the father overnight six out of fourteen days. In May 2001, the younger son, N.C.M., also began staying with the father six out of fourteen days. On January 25, 2002, the father moved (1) to modify physical custody from sole to joint so as to reflect the children’s change in living arrangements, and (2) to modify the amount of child support calculated under the Hortis/Valento formula so as to reflect the joint custody he was seeking.
The mother stipulated to the change in custody. But she filed a counter-motion requesting that support be set at an amount in excess of the guidelines, arguing that the calculation should be based on the assumption that the father’s income exceeded the statutory maximum. On March 26, 2002, the district court heard arguments from both parties. The court held that the father’s income as used to determine child support should be taken as $6,280, which was the maximum set out in Minn. Stat. § 518.551, subd. 5 (2000). The district court found that according to the statute, if the mother had sole physical custody of the children, the father would be required to pay $1,884 per month in child support. If the father had sole physical custody of the children, the mother would be required to pay $1,125 per month in child support. The court applied the Hortis/Valento calculation and determined that the father’s net child-support obligation would be $590 per month. The court then deviated from the Hortis/Valento guideline and set the father’s child-support payment at $1,250 per month, a reduction of $510 per month in his child-support obligation as determined in the original decree but $660 more than the statutorily required amount under the Hortis/Valento formula.
The court noted the mother’s assertion that monthly expenses for her and the children have not been reduced despite the children spending two additional nights with the father in every 14-day period. The court found that the parties disagreed about the number and types of activities in which the children should participate, as well as who should pay for the activities.
The court went on to state that the mother’s budgeted monthly expenses and activities for both boys totaled $525.83 and that the father’s monthly budget included $350 for the children’s activities and entertainment. The court noted certain things were not apparent, including how the activities listed by the mother were financed in the past and what activities were included in the father’s total. Because these things were not apparent, the court declined to subtract the $525.83 from the mother’s budget and declined to adjust the father’s budget.
The court compared the results of the application of the Hortis/Valento formula to the parties’ available funds and household budgets. While the father’s monthly net income as used to determine child support was capped by statute at $6,280, his actual net income was $7,156. Subtracting his household expenses of $4,846 left him with $2,310 to meet his Hortis/Valento calculated child-support obligation of $590.
In contrast, the mother’s monthly net income of $3,749 plus the $590 in child support gave the mother a total of $4,339 to meet her monthly expenses of $4,980, resulting in a shortfall of $641. The court found it was therefore appropriate to deviate from the Hortis/Valento calculation and increase the father’s child support to $1,250 for the purpose of maintaining the children’s standard of living. The court noted this was a one-third reduction in the father’s child-support obligation from the original order, but would allow the mother to cover her expenses. The father meanwhile would have sufficient funds to cover his expenses and still have approximately $1,000 in discretionary funds.
The court ordered the father to begin paying the adjusted child-support amount of $1,250 beginning July 1, 2002. The father appeals both the amount of his child-support payment and the July 1, 2002, effective date of the amended amount.
The father argues that the district court abused its discretion when it deviated upwardly from the Hortis/Valento formula in setting his net child-support payment. A district court has broad discretion in setting child support; it abuses that discretion only when it sets child support in a manner that is against logic and the facts on the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). In joint-physical-custody cases, the Hortis/Valento formula is presumptively appropriate. Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn. App. 2001). The Hortis/Valento formula provides that each party’s child-support obligation is the same amount as provided in the statutory guidelines, but only for the periods of time when the other parent actually has custody of the child; and that those obligations are then offset against each other, producing a net support payment from the obligor with the greater income. Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn. App. 1986) review denied (Minn. June 30, 1986). The district court can deviate from the Hortis/Valento formula, but if it does, it “shall make written findings giving . . . the reasons for the deviation, and shall specifically address” the factors set out in Minn. Stat. § 518.551, subd. 5(c), and “how the deviation serves the best interest of the child.” Minn. Stat. § 518.551, subd. 5(c), (i) (2002).
The district court noted the factors that it considered in deviating from the Hortis/Valento formula. The court found that both parents had substantial earnings and property to support themselves and their children. The parties disagreed about which activities were suitable for the children. The court noted that the children’s expenses were greater now than at the time of the divorce but that the increase in expenses was to be expected because the children were now 12 and 14. The court considered the children’s standard of living, finding that they enjoyed a standard of living comparable to what they would have had if their parents had remained married. Income tax dependency exemptions were also considered. The court found that the parties received deductions for their own shares of day care expenses and that the parties each claimed one child as a dependent. The court noted that neither party had debt that would influence the child-support obligation and that neither party was on public assistance.
The father, in support of his position that the district court abused its discretion, makes four arguments. First, the father argues that the court’s reasoning requires the father to pay for the children’s activities twice. He argues that the upward deviation in child support is based on the activity costs included by the mother in her monthly budget. The district court’s order requires the parties each to pay one-half of the expenses for the extra-curricular activities to which the parties agree, without specifying what those activities are. By contrast, in finding and conclusion III (D)(3), the district court explicitly sets out the costs for certain activities as part of the reasons for the upward deviation. Historically, some of the activity fees were borne solely by the mother. It appears to us that the district court’s order, when read with finding and conclusion III (D)(3), contemplates that the father will not agree to pay for those activities in the future; and because the mother will have been compensated for the cost of those activities, she will pay for them. In such a case, the father will not be paying twice for those activities.
Second, the father argues that the district court clearly erred when it determined that his annual net income from consulting work is $30,000. In his affidavit submitted to the district court, the father said his “outside income has been about $30,000 in net income annually.” (Emphasis added.) He then says, “If I assume that my 2002 income from consulting is closer to the historical pattern, it would be about $30,000.” Having read the father’s affidavit, the district court concluded that the father was saying that his outside net income is and will be $30,000 a year. But on appeal, father argues that the $30,000 is pre-tax, not after-tax, and hence the district court clearly erred in adding the $30,000 to his net income. Because “net income” is statutorily defined as total income less federal and state income tax and certain other items, the district court properly read the father’s affidavit as stating that his annual income after tax was $30,000. Minn. Stat. § 518.551, subd. 5(b) (2002). Moreover, the district court also considered the fact that the father’s average annual income from consulting for the last three years was greater than $70,000. In light of the father’s statements to the district court and his income history, we conclude that the district court did not clearly err in finding that the father’s net income from consulting was $30,000.
Third, the father argues that the district court erred when it failed to consider the mother’s ability to increase her income by working full-time. Specifically, the father points to the fact that the mother is working part-time and argues that she “can increase her income by almost one-third simply by choosing to work full time.” In response, the mother notes that at the time of the dissolution she was working full-time for an annual salary of $42,000 and that she now earns more than $72,000, notwithstanding the fact that she works part-time. She also notes that due to a recent corporate acquisition, one-half of the positions in her department were cut. There is nothing in the record to indicate that she could choose to work full-time at her present position or that she could get a full-time job as lucrative as the one she has now. The father simply asks this court to make the factual inference that the mother can increase her salary when there is nothing in the record to support that inference. Given the mother’s employment history and current salary, we conclude that the district court did not clearly err when it set the father’s child-support payment without making express findings concerning the mother’s decision to work part-time.
Fourth, the father argues that the district court used the increased child support as a form of maintenance. This court has held that “child support should not be used as a means of equalizing income between parents who share the obligations of physical custody.” Hortis v. Hortis, 367 N.W.2d 633, 635-36 (Minn. App. 1985). This court has held that such a use of child support is inappropriate. Broas v. Broas, 472 N.W.2d 671, 674 (Minn. App. 1991). Instead, “[a]bsent a showing that the children’s needs require a higher level of support from the parent with the higher income,” the “guidelines should be straightforwardly applied.” Id. (citation omitted).
The father cites several cases where upward deviations from the statutory guidelines have been overturned by this court. See id. (overturning support obligation because the child support award equalized the parties’ incomes with a $3 difference between the amount allotted each party to meet expenses); Valento, 385 N.W.2d at 863 (overturning support obligation because a “trial court cannot deviate from child support guidelines by merely subtracting a parent’s income from his or her needs”); Hortis, 367 N.W.2d at 636 (overturning support obligation because the trial court made no findings as to reasonable monthly expenses). But these cases can all be distinguished from the instant case. Here, the court made specific findings. The court noted the six factors to be addressed and addressed each one in turn. While the court did look to cover the mother’s expenses, the court noted that what it was doing was ensuring that the children were adequately supported. Because the parties’ income levels were disparate, the court found it necessary to deviate upwardly or it would be difficult for the mother to maintain the children’s standard of living. Contrary to the cases cited by the father, here the district court did not simply equalize the parties’ income; what the court did was look to the needs of the children and deviate upwardly to allow for those needs. We affirm the district court’s upward deviation in setting the father’s child-support obligation.
The district court ordered the effective date of the child-support modification order to be July 1, 2002. The father argues that because the child support modification is a result of custody integration, the effective date should be the date that the custody of the children changed. The father cites Bormann v. Bormann and urges that either the district court must make any modification of child support effective as of the date of the motion seeking such modification or else the court must give reasons for its ruling. See Bormann v. Bormann, 644 N.W.2d 478, 482-83 (Minn. App. 2002). Because the court failed to do either, the father argues, the court abused its discretion.
The father’s reliance on Bormann is misplaced. In Bormann, because the trial judge denied the motion for modification, the court did not set any effective date for a modification. Bormann, 644 N.W.2d at 480. Here, the court expressly set a date for the modification to be effective. Thus, the facts in Bormann differ significantly from those in the present case, and we conclude that Bormann does not control. Instead, Minn. Stat. § 518.64, subd. 2(d) (2002), governs the court’s authority to set the effective date for a motion to modify support or maintenance, stating that a “modification of support or maintenance may be retroactive.” (Emphasis added.) “Because the word ‘may’ is defined as ‘permissive,’ a district court has discretion to set the effective date of a * * * modification.” Kemp v. Kemp, 608 N.W.2d 916, 920 (Minn. App. 2000) (citing Minn. Stat. § 645.44, subd. 15 (1998)) (citations omitted). It was therefore within the discretion granted by the statute for the district court to make the modification effective on the first of the month following the date of the order.
* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.