This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Susan Elizabeth Flint, petitioner,
Ricky James Smith,
aka Ricky Smith,
Filed May 20, 2003
Ramsey County District Court
File No. DMF7962001
Judith L. Oakes, J. Oakes & Associates, Hamline Place, 2589C Hamline Avenue North, Roseville, MN 55113 (for respondent)
Kimberly Tourdot Walker, Joan H. Lucas, 700 Saint Paul Building, Six West Fifth Street, Saint Paul, MN 55102 (for appellant)
Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant father challenges the district court’s order granting respondent mother’s motion for amended findings and denying both his request for permission to move for reconsideration and his motion to modify child support. We conclude that (1) the district court did not abuse its discretion by granting respondent mother’s motion for amended findings, (2) the district court’s order denying permission to move for reconsideration is not an appealable order, and (3) the district court abused its discretion by denying appellant father’s motion to modify child support. We therefore affirm in part, reverse in part, and remand.
In December 1997, the 11-year marriage of appellant Ricky James Smith and respondent Susan Elizabeth Flint was dissolved. The parties have two children, now ages ten and seven. In December 2001, after a trial on the issues of child custody and support, the district court awarded the parties joint legal custody of the children and awarded Flint “primary physical custody.” The court also ordered Smith to pay $302 per month in child support. The court calculated the child-support obligation in accordance with the formula described in Valento v. Valento, 385 N.W.2d 860 (Minn. App. 1986), review denied (Minn. June 30, 1986), finding that Flint would have the children 58% of the time and Smith would have them 42% of the time.
In January 2002, Flint moved to amend the district court’s December 2001 order to require that Smith pay child support according to the statutory guidelines. Flint argued that the district court erred as a matter of law by applying Valento because, she contended, by awarding her “primary physical custody,” the court had in fact awarded her sole physical custody and, under Rogers v. Rogers, 622 N.W.2d 813 (Minn. 2001), the Valento analysis did not apply.
In February 2002, Smith requested the district court’s permission to move for reconsideration of the December 2001 child-support award because of an “intervening change in legal developments.” On April 19, 2002, before the district court had ruled on Flint’s motion to amend the December 2001 order or on Smith’s request for permission to move for reconsideration, Smith moved to modify child support because of a substantial change in his circumstances. In an affidavit filed with his motion, Smith asserted that (1) the substantial change in circumstances “resulted from the termination of [his] employment by Augsburg College”; (2) he received “salary payments through September 2001[ ] and accumulated vacation pay equal to one month’s salary”; and (3) in February 2002, he became eligible for unemployment compensation of $1,808 per month, and he had no other source of income.
On April 22, 2002, without receiving permission from the court, Smith filed his motion for reconsideration. By this time, the family-court referee who had issued the December 2001 order had been replaced, and a new referee was to decide Smith’s motion. Smith requested a finding that the original referee “intended to determine child support pursuant to” Valento and “intended” a downward deviation from the child-support guidelines because the December 2001 order contained “findings of fact which indicate deviation” from the guidelines.
Flint filed a “supplemental post-trial memorandum” on May 1, 2002, in which she responded to Smith’s motion to modify child support, arguing that Smith had failed to establish that his unemployment (1) was temporary and would lead to an increase in income or (2) represented a bona fide career change. Flint noted that the only evidence Smith offered regarding his unemployment was his statement that a change in circumstances had resulted from the termination of his employment. Flint asserted that Smith had failed to specify “if the termination was voluntary or involuntary” or “when it was effective” and that Smith “offere[d] no evidence about his efforts to find a job * * * .”
Smith filed a responsive affidavit on May 3, 2002, in which he stated that his termination had been involuntary and asserted that he had (1) “networked extensively * * * with more than 20 personal and professional contacts * * * who provide counsel, encouragement[,] and leads” in his job search; (2) “researched daily and weekly numerous sources of information about job openings”; and (3) “submitted an application for every job in the Twin Cities area consistent with [his] professional background and expertise.” Smith specified 18 positions for which he had applied, and he attached to his affidavit copies of nine letters that he had sent in response to advertisements for available positions.
On May 6, 2002, the district court held a hearing on the parties’ motions. In an August 2002 order, the court granted Flint’s motion to amend the December 2001 order, and the court ordered Smith to pay child support according to the statutory guidelines. The court found that the parties do not share joint physical custody of the children, and therefore, under Rogers, the Valentoformula is inapplicable. The court further found that Smith’s net monthly income of $6,888 exceeded the statutory child-support cap of $6,280, and the court ordered him to pay monthly child support of $1,884, calculated as 30% of $6,280.
In its August 2002 order, the court also denied Smith’s February 2002 motion for reconsideration on the ground that Smith had not received permission to move for reconsideration. And the court denied Smith’s April 2002 motion to modify child support on the grounds that Smith had made no showing that his unemployment was temporary and would ultimately lead to an increase in income and that he had in no way documented his job search. This appeal follows.
Smith argues that the district court abused its discretion by granting Flint’s motion to amend the December 2001 order to require him to pay guidelines child support. He contends that the district court did not award Flint sole physical custody of the children and that the holding in Rogers v. Rogers, 622 N.W.2d 813 (Minn. 2001), does not, therefore, apply. Smith argues that his child-support obligation should be calculated using the formula set forth in Valento v. Valento, 385 N.W.2d 860 (Minn. App. 1986), review denied (Minn. June 30, 1986), and Hortis v. Hortis, 367 N.W.2d 633 (Minn. App. 1985), either because he and Flint share joint physical custody or because the district court intended a downward deviation from the child-support guidelines and the December 2001 order includes findings to support such a downward deviation.
The decision on a motion for amended findings is within the discretion of the district court, and the decision will not be reversed absent an abuse of that discretion. See Bains v. Piper, Jaffray & Hopwood, Inc., 497 N.W.2d 263, 271 (Minn. App. 1993), review denied (Minn. Apr. 20, 1993). Smith urges de novo review of the district court’s decision not to apply the Hortis-Valento formula when it granted Flint’s motion, citing Schlichting v. Paulus, 632 N.W.2d 790 (Minn. App. 2001). But in Schlichting, the issue reviewed de novo was not whether the district court erred by failing to apply the Hortis-Valento formula. Rather, the issue was whether failure to apply the Hortis-Valento formula is a deviation from the child-support guidelines. Id. at 792. Accordingly, we review the district court’s grant of Flint’s motion for amended findings under an abuse-of-discretion standard.
In Rogers, the supreme court held that the Hortis-Valento formula is inapplicable if parents do not share joint physical custody unless the district court makes findings on the factors set forth in Minn. Stat. § 518.551, subds. 5(c), 5(i) (2002) that support a downward deviation from the statutory guidelines. 622 N.W.2d at 821. “Courts may choose, as some do, to designate joint physical custodians as primary and secondary joint custodians.” Lutzi v. Lutzi, 485 N.W.2d 311, 314 (Minn. App. 1992). But for purposes of calculating child support, a district court “must * * * identify whether the physical-custody award is for sole or joint physical custody.” Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn. App. 2002).
The district court does not specify in its December 2001 order whether Smith and Flint were awarded joint physical custody or Flint was awarded sole physical custody. The court’s August 2002 order similarly does not provide that Flint has sole custody of the parties’ children, but in that order the court determined that the parties “do not share joint physical custody” of the children. Even if Smith provides a significant amount of physical care for the children, the Hortis-Valento formula does not apply, absent findings supporting a downward deviation from the child-support guidelines, if the physical-custody arrangement is not labeled “joint.” See id. at 730-31.
Smith argues that the December 2001 order includes findings to support a downward deviation. But the record shows that the court made only scant findings regarding child support. The court noted the parties’ incomes and the percentage of time that each parent would have custody, and the court then applied the Hortis-Valento formula. Smith cites nothing in the December 2001 order to support his assertion that the court intended the child-support award to be a downward deviation from the child-support guidelines.
Because Smith and Flint do not share joint physical custody, Rogers applies. The district court did not, therefore, abuse its discretion by granting Flint’s motion to amend the December 2001 order to require Smith to pay guidelines child support.
Smith argues that the district court erred by denying him permission to move for reconsideration. “Motions to reconsider are prohibited except by express permission of the court * * * .” Minn. R. Gen. Pract. 115.11. An order denying permission to move for reconsideration under Minn. R. Gen. Pract. 115.11 is not an appealable order. Baker v. Amtrak Nat’l R.R. Passenger Corp., 588 N.W.2d 749, 755 (Minn. App. 1999). “[A]ny claimed errors for which reconsideration was sought can be directly reviewed in the appeal from the judgment or order.” Id. at 756. The district court’s denial of Smith’s request for permission is not appealable. In any event, Smith raises on appeal the issue of how Rogers affects his child-support obligation, which is the same issue he sought to raise when he requested permission to move for reconsideration.
Finally, Smith argues that the district court abused its discretion by denying his motion to modify child support. He contends that the court’s findings on the nature of his unemployment and his job-search efforts are erroneous because the court ignored the information in his May 3 affidavit in response to Flint’s May 1 memorandum.
The decision to modify child support “lies in the broad and sound discretion of the trial court, and an appellate court will reverse for an abuse of that discretion only where it finds a ‘clearly erroneous conclusion that is against logic and the facts on record.’” Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quotingRutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).
When it denied Smith’s motion to modify, the district court found that Smith had failed to specify whether his termination was voluntary and had offered no evidence about his job-search efforts. But Smith’s May 3 affidavit states that his termination was involuntary, and the affidavit provides substantial information regarding his job-search efforts.
Flint argues that Smith’s May 3 affidavit was untimely and therefore not before the court when it denied Smith’s motion to modify. Rule 303.03 of the Rules of General Practice provides that, in family-law matters,
[n]o motion shall be heard unless the initial moving party * * * files [any relevant affidavits and exhibits] with the court administrator at least 14 days prior to the hearing [on the motion].
Minn. R. Gen. Pract. 303.03(a)(1). The district court has discretion to ignore late-filed affidavits. Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987).
Here, Smith filed his responsive affidavit on May 3, 2002, which was fewer than 14 days before the May 6 hearing on his motion to modify. But the affidavit responded to Flint’s posttrial memorandum, which was filed on May 1, also fewer than 14 days before the May 6 hearing. And the district court’s language denying Smith’s motion to modify repeats almost verbatim the assertions that Flint made in her memorandum. The court therefore apparently considered Flint’s memorandum in connection with Smith’s motion but disregarded Smith’s responsive affidavit, despite the untimeliness of both the memorandum and the responsive affidavit. Further, Flint submitted a letter to the district court in which she responded to Smith’s responsive affidavit, noting that the court had granted her leave to respond to Smith’s untimely responsive affidavit. The responsive affidavit was therefore part of the record before the district court when it denied Smith’s motion to modify.
The district court abused its discretion by considering Flint’s untimely posttrial memorandum while simultaneously disregarding the information in Smith’s affidavit in response to that memorandum. Because the court’s findings regarding the nature of Smith’s termination and his job-search efforts are contrary to the evidence presented in the affidavit, the court’s findings are clearly erroneous. We therefore reverse the denial of Smith’s motion to modify child support. We remand determination of that motion to the district court, which may, in its discretion, reopen the record for additional submissions by the parties.
Affirmed in part, reversed in part, and remanded.