This opinion will be unpublished and

may not be cited except as provided by

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






In re: Michael S. Tressler, petitioner,


Lisa D. Tressler,


Filed April 29, 2003

Reversed and remanded

Wright, Judge


Le Sueur County District Court

File No. F199600


Timothy D. Lees, Hennek, Klaenhammer & Lees, P.A., 2585 Hamline Avenue North, Suite A, Roseville, MN  55113 (for appellant)


Todd W. Westphal, Mackenzie & Gustafson, Ltd., 326 South Minnesota Avenue, P.O. Box 360, St. Peter, MN  56082 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




Appellant-father argues that because the parties had joint physical custody of their children, the district court should have set support under the Hortis/Valento formula or made findings explaining why that formula was inapplicable.  We reverse and remand. 


The stipulated judgment dissolving the marriage of appellant-father Michael Tressler and respondent-mother Lisa Tressler awarded the parties joint physical custody of their children, granted mother maintenance and child support, and did not mention the Hortis/Valento child-support formula.  Later, due to mother’s impending remarriage and resulting termination of her maintenance award, mother moved to increase father’s support obligation.  Father opposed the motion, arguing that support should be set using the Hortis/Valento formula.  The district court (1) ruled that the judgment did not actually award joint physical custody, (2) increased father’s support obligation, and (3) declined to use the Hortis/Valento formula to set father’s new support obligation.  Father appeals.



            Section 518.551, which contains the child support guidelines, applies to “all proceedings involving a child support order[.]”  Minn. Stat. § 518.551, subd. 1 (2002).  Under it, a guideline child support obligation is rebuttably presumed to be appropriate in all cases.  Id., subd. 5(i) (2002).  Where parties share joint physical custody, using the Hortis/Valento formula “is an application of the guidelines.”  Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001) (citation omitted).  The presumptively appropriate guideline support obligation in joint physical custody cases, therefore, is the obligation calculated under the Hortis/Valento formula.  Id. at 792-93.  For this reason, when setting the child support obligation, it is “critical” to determine whether physical custody is joint.  Nolte v. Mehrens, 648 N.W.2d 727, 730 (Minn. App. 2002). 

            Here, while the dissolution judgment awarded the parties “joint legal and physical custody” of the children, the memorandum accompanying the district court’s child support order stated that the amount of time father spends with the children is “nothing more than the traditional alternating weekend type schedule” used in a sole physical custody arrangement.  Accordingly, the district court did not use the Hortis/Valento formula, stating that there was “no legal basis” for doing so.  But when a district court has adopted a stipulation to a physical custody arrangement, as is the case here,

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. 


Id. (footnote omitted).  Because a dissolution judgment’s language describing a custody arrangement is “dispositive,” the district court erred in determining the nature of the custody award by examining the amount of time the children spend with each parent.  We, therefore, reverse this aspect of the district court’s ruling. [1] 


            Mother argues that because the dissolution judgment did not use the Hortis/Valento formula originally, that formula cannot be used to set support now.  The dissolution judgment simply states that father’s $1,500 support obligation was derived from an application of the guidelines to a $5,000 monthly net income figure attributed to father.  The guideline support obligation for an obligor in a sole physical custody arrangement with three children and a $5,000 monthly net income is $1,950.  In a joint physical custody arrangement, application of the Hortis/Valento formula to the limited information in the judgment suggests a $1,560 monthly net support obligation for father.  See Minn. Stat. § 518.551, subd. 5(b) (Supp. 1999) (stating support obligor with net monthly income of $5,000 has presumptive support obligation of 39 percent of net monthly income).  Thus, whether the Hortis/Valento formula was used is unclear.  Certainly, the judgment’s statement that father’s support obligation derived from applying the guidelines to a $5,000 monthly net income is either incorrect or incomplete.  And we discern nothing in this dissolution judgment that precludes the district court from using the presumptively correct Hortis/Valento formula in setting support.[2] 



            Mother argues that if the Hortis/Valento formula is presumptively applicable here, the district court made adequate findings under Minn. Stat. § 518.551, subd. 5(i), (c) to deviate from the obligation suggested by that formula.  We disagree.  Most of the findings that are required by Minn. Stat. § 518.551, subd. 5(i), (c) for a nonguideline support obligation are absent from the district court’s order.  In addition, whether to deviate from a presumptively correct support obligation is discretionary with the district court.  Stewart v. Stewart, 373 N.W.2d 856, 857 (Minn. App. 1985).  Here, after declining to treat the dissolution judgment as awarding joint physical custody, the district court ruled that there was “no legal basis” for using the Hortis/Valento formula.  Thus, the district court did not exercise any discretion regarding whether to deviate from the presumptively correct Hortis/Valento support obligation.  It appears that the district court believed it was required to impose a non-Hortis/Valento obligation.  Accordingly, we reject mother’s argument that the child support award should be affirmed as a deviation from the presumptively correct obligation.  See In re Welfare of M.F., 473 N.W.2d 367, 370 (Minn. App. 1991) (remanding for district court to exercise discretion on discretionary issue it erroneously addressed as a matter of law). 


            Mother also argues that, because “a straightforward application of the Hortis/Valento formula” would produce an obligation sufficiently similar to that imposed by the district court, the support obligation imposed by the district court should be affirmed.  The Hortis/Valento formula requires each parent to pay support for the period of time that children are in the other parent’s physical custody.  Schlichting, 632 N.W.2d at 792.  Here, the amount of time the children spend with each parent remains in dispute.  The district court did not address that dispute, and this court does not resolve disputed fact issues on appeal.  See Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (stating appellate courts “[cannot] determine issues of fact on appeal”).  Thus, we cannot determine whether the support obligation imposed by the district court is similar to the obligation that would have been imposed if the district court had used the Hortis/Valento formula.  Also, mother’s argument assumes that the limit on the amount of monthly net income subject to the guidelines does not apply to joint physical custody cases.  This assumption is inconsistent with the propositions that the Hortis/Valento formula is an application of the guidelines, Schlichting, 632 N.W.2d at 792, and that the current limit on the amount of monthly net income subject to the guidelines is $6,751.  See Minn. Stat. § 518.551, subd. 5(b), (k) (2002); Cost of Living Adjustment to Child Support Guideline, March 18, 2002, C9-85-1134.

            Because the physical custody award is joint, the presumptively correct child support obligation is calculated under the Hortis/Valento formula.  The obligation imposed here does not reflect that calculated amount.  Accordingly, we remand to the district court with instructions to set support according to the Hortis/Valento formula or make the findings necessary to allow a deviation from the obligation suggested by that formula.  Whether to reopen the record on remand remains within the district court’s discretion.  We express no opinion regarding resolution of the remanded issues.[3] 

            Reversed and remanded.

[1] Nolte notes:


Although it could be argued that some earlier caselaw indicates that discerning whether a physical-custody award is sole or joint requires an examination of the amount of time the parties spend with their child, [Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993)] and its progeny have superseded such cases.


Nolte, 648 N.W.2d at 730 n.1. 

[2] For this reason, we need not address whether the dissolution judgment’s statement that father’s child support obligation may be “reviewed” when maintenance terminates creates a right to address support de novo upon the termination of maintenance.  If the judgment did create that right, however, whether it used the Hortis/Valento formula to set support originally would not impact whether that formula could be used on “review.”  Cf. Davis v. Davis, 631 N.W.2d 822, 827 (Minn. App. 2001) (citation omitted) (stating that where support originally reserved, subsequent setting of support treated as initial support order rather than modification of existing support obligation). 

[3] Mother alleges that using the Hortis/Valento formula to set child support would violate her right to equal protection, because it would result in similarly situated children being treated differently based on the label used to describe their custodial status.  This question is not properly before us, because it is raised for the first time on appeal and because mother failed to file a notice of review.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate courts generally address only issues presented to and considered by the district court); Pine River State Bank v. Mettille, 333 N.W.2d 622, 632 (Minn. 1983) (refusing to review issue raised by respondent in absence of notice of review).  We decline, therefore, to address the equal-protection issue.  Because this issue is not properly before us, it is not part of the remand.  See Halverson v. Vill. of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982) (noting that, on remand, district court must “execute the mandate [of a reviewing court] strictly according to its terms” and lacks power to “alter, amend, or modify [that] mandate”).