This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re the Marriage of:


Cheryl L. Gass, petitioner,





Ricky G. Gass,



Filed April 22, 2003

Reversed in part and remanded

Gordon W. Shumaker, Judge


Hennepin County District Court

File No.  DC240340




Jeanette M. Tuzinski, Tuzinski & Zick, L.L.C., 7050 Brooklyn Blvd., Minneapolis, MN 55429 (for respondent)


Michael Ormond, Ormond Law Offices, 300 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for appellant)



            Considered and decided by Shumaker, Presiding Judge, Wright, Judge, and Huspeni, Judge.*



U N P U B L I S H E D   O P I N I O N



            Appellant contends that the district court failed to make adequate findings as to the parties’ incomes, that the findings do not support a deviation from child support guidelines, and that there was no basis for an award of attorney fees to respondent.  Because the district court did not make the adequate, specific findings required under Minn. Stat. § 518.551, subd. 5(c), we reverse and remand for the district court to do so.  Because there is no basis for the award of attorney fees, we reverse the award.


The marriage of appellant Ricky Gass (father) and respondent Cheryl Gass (mother) was dissolved by judgment on December 14, 1999.  The court approved the parties’ stipulated agreement to joint legal custody of their two children; a child support obligation of $1,780 by father; a spousal maintenance buy-out equivalent to $1,000 per month; a property division; and a provision whereby mother agreed to assume the regular expenses of the children. 

            In April 2000, father began new employment earning $75,000 annually, and around this same time mother inherited $200,000 from her grandmother, a sum larger than had been anticipated by the parties during the dissolution proceedings. On July 12, 2000, father sought to modify his child support obligation.

On February 13, 2001, the district court modified father’s child support obligation downward to $1,400 a month, leaving the original stipulation basically intact.  Father appealed the modification order to this court.

On December 4, 2001, this court in Gass I held that the district court erred in its award of child support and that it improperly used child support to “equalize” the parties’ income.  Gass v. Gass, No. C3-01-539, 2001 WL 1530728, at *4 (Minn. App. Dec. 4, 2001).  Accordingly, this court reversed and remanded for the district court to

reconsider the factual findings required under Minn. Stat. § 518.551, subd. 5(c), and determine [mother’s] income based on [her] income from all appropriate sources.


Id.  This court held that it was within the district court’s discretion to request updated evidence of the earnings and expenses of the parties and denied mother’s request for attorney fees because “both parties have substantial assets in real and personal property totaling between $700,000 and $900,000 individually.”  Id. at *5.

            Before the hearing on remand, mother obtained a full-time job earning $35,000 gross annually.  In its July 16, 2002, order, the district court modified father’s child support obligation to $900 per month, but also ordered father to be responsible for “½ of the special expenses of the children for extracurricular activities, etc.” and granted mother’s motion for attorney fees of $1,000.  This appeal follows.



1.         Sufficiency of the findings under Minn. Stat. § 518.551 (2002)


            The district court has discretion to determine whether to modify child support and its decision will not be reversed absent an abuse of discretion where its conclusion is against logic and the facts on record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  The district court’s discretion, however, is limited by the governing statute.  Here, the governing statute, Minn. Stat. § 518.64, subd. 2 (2002), requires the court to determine whether, among other factors, a substantial change in a party’s earnings or a substantial change in the children’s needs exists, rendering the current support order unreasonable and unfair.  In addition to the child support guidelines, the court should consider

(1)       all earnings, income, and resources of the parents, including real and personal property * * *;

(2)       the financial needs and resources, physical and emotional condition, and educational needs of the * * * children to be supported;

(3)       the standard of living the [children] would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households;

(4)       which parent receives the income taxation dependency exemption and what financial benefit the parent receives from it * * * .


Minn. Stat. § 518.551, subd. 5(c).  The court is not required to make specific findings on each factor, but rather the findings as a whole must show that it considered the relevant factors.  Rosenfeld v. Rosenfeld, 311 Minn. 76, 83, 249 N.W.2d 168, 171-172 (1976). 

            Father contends in this appeal that the district court failed to make proper findings as to the parties’ incomes.  In its most recent findings, the district court found $4,900 as father’s monthly income, with monthly expenses of $4,000.  However, referring to mother’s allegation that father had monthly income of $7,069.83, the district court then found that father’s income is “somewhere between $900 and $3,069.83 in excess of his needs.”  The district court determined that when the Hortis/Valento formula was applied, based on the $7,069.83[1] figure, the result would place father’s net child support obligation at $450.

            The district court found mother’s income to be $3,830.  But the court adopted the figure of $3,830 without identifying the sources used to calculate that amount.  The record shows that mother was employed full time at the time of the hearing at a gross annual wage of $35,000, was receiving $12,000 per year in maintenance, and had additional income from investments.

The findings do not reflect that the district court followed the instructions of this court to determine the actual investment income of mother when the district court “adopt[ed] this figure [of $3,830],” but suggested that “with recent stock market reverses, it may be high.”

            Stipulations between parties with regard to child support should not be blindly accepted and approved by the district court.  Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988).  Where, as here, the district court relied on the allegations of mother as to income of father without making any specific findings of its own and also accepted father’s allegations as to mother’s current income while stating uncertainty as to the actual amount, the district court failed to make findings on the parties’ actual incomes.  

Because the district court did not make the necessary findings as directed by this court and required under Minn. Stat. § 518.551, subd. 5(c), we remand for findings as to the actual, specific incomes of the parties.

2.         Sufficiency of findings to support deviation from guidelines

This court held that a strict Hortis/Valento analysis was not mandated in this case and that

[t]he district court may depart from the guidelines (including the Hortis/Valento formula), when it complies with the requirement to provide written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the [statutory] criteria in paragraph (c) and how the deviation serves the best interest of the child.

Gass v. Gass, No C3-01-539, 2001, WL 1530728 at *4 (Minn. App. Dec. 14, 2001) (citing Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn. App. 2001)).

            Here, the district court determined that father’s net support obligation under the Hortis/Valento formula would be $450 and stated that a deviation was warranted because this court stated in Gass I that a reduction to “$500 to 600 per month does not appear to be reasonable.”  The district court reasoned that if mother had full custody, father’s obligation would be over $2,000 per month beginning July 1, 2002.  The district court, without further comment or explanation, then found that “the fair level of child support for [father] is $900 per month.”  In addition, the district court ordered father to pay “½ of the special expenses of the children for extracurricular activities, etc.”

Because the district court’s findings do not provide reasons for deviation, specifically address the statutory criteria, or state how the deviation serves the best interests of the child, the court abused its discretion.

            Father argues next that the district court again used child support to “equalize” the parties’ incomes.  As this court affirmed in Gass I,

child support should not be used as a means of equalizing income between parents who share the obligations of physical custody.  Disparity in income must be related to the needs of the children.  Absent a showing that the children’s needs require a higher level of support from the parent with the higher income, we believe the guidelines should be straightforwardly applied.


Gass, 2001 WL 1530728, at *4 (citing Hortis v. Hortis, 367 N.W.2d 633, 635-36 (Minn. App. 1985)).

Here, the district court found father’s reasonable monthly living expenses to be $4,000 and mother’s reasonable living expenses to be $5,000.  The court concluded that because mother is more than $200 short of her budget and father’s income “likely well exceeds the $4,900 found by the trial court before” child support of $900 monthly was reasonable.  The record shows that while mother’s living expenses were more than father’s, the parties share the obligations of physical custody 50/50 and both father and mother have considerable assets.  The district court did not consider the assets in its findings.

In Gass I, this court held that

the district court was incorrect when it stated in its modification order that “[e]ven if [mother] doubles her employment income, there is a significant shortfall between her income and the monthly expenses necessary to maintain the lifestyle the children enjoyed while in [father’s] custody.  * * *  The judiciary does not use child support to “equalize” the parties’ incomes.”


Gass, 2001 WL 1530728, at *4.

Because the court is again attempting to “equalize” the parties’ incomes, it continues to err by using the shortfalls of mother’s budget as justification for deviating from the guidelines. 

3.         Attorney fees

An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002) will not be reversed absent a clear abuse of discretion.  Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn. 1977).  We will rarely reverse the district court on this issue.  Rosenberg v. Rosenberg, 379 N.W.2d 580, 587 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).  A party may request attorney fees from the district court upon remand of the matter.  Tanghe v. Tanghe, 400 N.W.2d 389, 394 (Minn. App. 1987).  The district court must make specific findings of the factors on which an award of attorney fees was made or denied.  In re Marriage of Richards, 472 N.W.2d 162, 166 (Minn. App. 1991).

Under the statute, the court will award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds

(1)       that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2)       that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3)       that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.


Minn. Stat. § 518.14, subd. 1. 

Here, the district court ruled that “[b]ecause of his greater income, and as additional child support,” father is to pay mother $1,000 for attorney fees.  Although no statute is cited in support of the award, it is reasonable to conclude that the court awarded attorney fees under Minn. Stat. § 518.14, subd. 1.  But the court did not make specific findings in support of its order for father to pay attorney fees to mother. 

The record shows that the district court stated at the conclusion of the hearing that mother “at this point * * * has got more cash than [father] does.”

Because the award of attorney fees under Minn. Stat. § 518.14, subd. 1, clearly states that the district court must find “that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding” and the district court did not make such a finding, the award of attorney fees is reversed.

            Reversed in part and remanded.

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


[1] The maximum monthly income cap that applies for the applicable period here, July 1, 2000, to June 30, 2002, is $6,280.  See Cost of Living Adjustment to Child Support Guidelines, No. C9-85-1134 (Minn. Mar. 12, 1998 & Apr. 19, 2000); McClelland v. Pierce, 376 N.W.2d 217, 220 (Minn. 1985) (stating reconsideration of child support obligation on remand “is a continuation of the original proceedings.”)