This opinion will be unpublished and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

C2-03-52

 

In the Matter of:
Gary Lee Nystrom, petitioner,
Appellant,

vs.

Sonja Jo Nystrom,
Respondent.

 

Filed August 5, 2003

Affirmed in part and remanded in part

Peterson, Judge

 

Stearns County District Court

F1961970

 

Brian M. Olsen, Brian M. Olsen Law Office, P.O. Box 988, Cokato, MN  55321 (for appellant)

 

Douglas E. Schmidt, Suite 200 Fazendin Building, 1421 Wayzata Boulevard, Wayzata, MN  55391 (for respondent)

 

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this child support dispute, appellant-father Gary Lee Nystrom argues that the district court abused its discretion when it did not (1) conduct an evidentiary hearing to determine credits against his child support obligation for periods when the parties’ two youngest children lived with him; and (2) order respondent-mother Sonja Jo Schmidt to reimburse him for medical expenses that he paid on behalf of the children and correct a clerical error in an order directing him to reimburse mother for medical expenses that she paid on behalf of the children.  We affirm in part and remand in part.

FACTS

            The parties’ 14-year marriage was dissolved in January 1997 pursuant to a stipulation.  The parties were granted joint legal and “shared” physical custody of their three minor children with the children’s primary residence with mother during the school year and, if one or more of the children chose to spend the summer with father, with father during the summer months.  Father’s monthly child support obligation was established at $1,375 with a provision for a pro rata reduction if the children resided with father during the summer.  The decree ordered father to maintain health insurance for the children and required the parties to equally share out-of-pocket medical expenses of the children.

            Pursuant to a stipulation, the decree was amended in July 1998 to change the primary residence of the parties’ middle child, who wished to live with father, and to reduce father’s monthly child support.  The amended decree states, “The parties shall retain joint legal and joint physical custody of their three minor children.” 

            In September 2001, father moved to modify custody of the youngest child and to modify his child support obligation.  In December 2001, the district court granted father’s motion for temporary physical custody, ordered a custody evaluation, and suspended father’s child support obligation retroactive to the date father’s motion was served on mother.  The court also awarded mother $2,404.63 in out-of-pocket medical expenses she paid on behalf of the children.  Following the custody evaluation, and pursuant to a stipulation, the youngest daughter returned to live with mother during the school year.

In 2002, father filed a motion seeking (1) modification of the December 2001 award of $2,404.63 in out-of-pocket medical expenses to mother; (2) reimbursement from mother for one-half of $2,631.36 in out-of-pocket medical expenses father paid on behalf of the children; and (3) credit against his child support and spousal-maintenance obligations for periods when father provided a home for the children.

In a November 7, 2002, order, the district court denied father’s request for a credit against his child support obligation and his request to modify the December 2001 award to mother for out-of-pocket medical expenses.  The court did not address father’s request for reimbursement from mother for one-half of the out-of-pocket medical expenses that he paid.  The court also established a child support obligation for father, which father does not challenge on appeal.

D E C I S I O N

Although father acknowledges in his brief that this matter was submitted to the district court on affidavits[1] and that his affidavit regarding the periods when he had primary care of the parties’ two youngest daughters was not contradicted by mother’s affidavit, he, nevertheless, argues that the district court abused its discretion by not conducting an evidentiary hearing to determine the credits against his child support for the periods when he had physical care of the daughters.  Father contends that if the periods were contradicted, an evidentiary hearing could have been used to determine the periods when he had physical care of the daughters and the parties’ incomes during those periods.

Father offers no explanation why it was an abuse of discretion for the district court to not conduct an evidentiary hearing to determine uncontested fact issues about when he had physical care of the daughters.  And, unless the fact that father had physical care of the daughters during certain periods warranted a change in his child support obligation for those periods, there was no reason to determine the parties’ incomes during those periods.

Father appears to argue that the district court needed to determine the parties’ incomes during the periods when he had physical care of the daughters in order to apply the Hortis-Valento formula[2] to those periods and to modify his child support obligation retroactively to reflect the Hortis-Valento formula. 

Because application of the Hortis-Valento formula is an application of the child support guidelines, using that formula is presumptively appropriate in all joint physical custody cases, and setting support in an amount that deviates from the amount suggested by that formula requires the statutory findings necessary to support a deviation from the child support guidelines.  Schlichting v. Paulus, 632 N.W.2d 790, 792-93 (Minn. App. 2001).  Here, the parties stipulated to an amended judgment, which states, “The parties shall retain joint legal and joint physical custody of their three minor children,” but the amended judgment did not use the Hortis-Valento formula to set support.   

However, the proper remedy for challenging the failure to apply the Hortis-Valento formula to the parties’ joint-physical-custody arrangement was to appeal from the amended judgment.  When father did not appeal, that judgment became final.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating “[e]ven though the decision of the [district] court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired”).  Expiration of the time for appeal precludes a party from seeking to modify a judgment because of alleged judicial error.  Erickson v. Erickson, 506 N.W.2d 679, 680 (Minn. App. 1993).

As the district court noted, father cited no authority to support his request for the district court to review the parties’ stipulated judgment retroactively.  Because father cited no authority that permits retroactive application of the Hortis-Valento formula to modify a child support obligation established in a judgment previously rendered final, the fact that father had physical care of the daughters during the period the judgment was final did not warrant a change in his child support obligation for that period.  Hence, the district court did not abuse its discretion by not conducting an evidentiary hearing to determine the parties’ incomes during those periods.

Citing Minn. Stat. § 518.57, subd. 3 (2002), father appears to argue that the district court erred when it failed to grant him retroactive credit against his child support obligation after he provided a home for the children on an intermittent basis during 2000-2001.  Minn. Stat. § 518.57, subd. 3, states:

The court may conclude that an obligor has satisfied a child support obligation by providing a home, care, and support for the child while the child is living with the obligor, if the court finds that the child was integrated into the family of the obligor with the consent of the obligee and child support payments were not assigned to the public agency under section 256.741.

 

But father did not present this issue to the district court.[3]  Reviewing courts “must generally consider only those issues that the record shows were presented and considered by the trial court.”  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quotation and citation omitted).  Therefore, we will not consider this issue.

Father argues that the district court abused its discretion when it (1) did not order mother to reimburse him for medical expenses that he paid on behalf of the children; and (2) did not correct a clerical error in a judgment that directed him to reimburse mother for medical expenses that she paid on behalf of the children.

The district court denied father’s request for correction of what father described as a clerical error in the December 2001 $2,404.63 judgment in favor of mother for 100% of the out-of-pocket medical expenses that she paid on behalf of the children.  The district court explained in its memorandum that the 100% was not a clerical error and that, based on equity, mother was awarded 100% of the expenses, rather than the 50% required by the dissolution judgment.

A [district] court does not lose authority to do equity in family law unless there is a pure question of law.  A district court has equitable jurisdiction in dissolution actions, and relief may be awarded as the facts in each particular case and the ends of justice may require.

 

Karypis v. Karypis, 458 N.W.2d 129, 131 (Minn. App. 1990) (quotation and citation omitted), review denied (Minn. Sept. 14, 1990).  The district court explained its reason for awarding 100% of the expenses as follows:

In October 2001, the Court was informed by [mother’s] attorney that [father] had caused his union benefits to lapse.  As a result, the children were not covered by medical insurance, and [father] failed to notify [mother] of this fact until after the COBRA period had lapsed.  [Mother] now works two jobs so that there is medical coverage for the minor child.  There is no evidence before the Court that [father] attempted to pay his portion of those bills prior to the issuance of the October Order, or since that time.  A number of those bills were incurred in 1997.

 

Based on this explanation, we conclude that the district court did not abuse its discretion by declining to treat the 100% award as a clerical error.

The court did not address father’s separate request that mother reimburse him for half of the $2,631.36 in out-of-pocket medical expenses that he has paid.  Therefore, we remand to the district court for consideration of father’s argument that he is entitled to reimbursement.

Affirmed in part and remanded in part.



[1]The November 7, 2002, order states that a hearing on father’s motion was held on August 9, 2002, no record of the hearing was made, and “[p]ursuant to an agreement, both parties submitted written arguments.”

[2] Under the Hortis-Valento formula, each parent’s support obligation is set in the amount indicated by the guidelines for the periods that the other parent has custody of the children, and the obligations are then offset, resulting in a net payment for the parent with the larger obligation.  Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. Jun. 30, 1986).

[3] Father presented this argument in a letter to the district court after the court issued its order.  Father states that he cited section 518.57 in a November 26, 2001, letter to respondent’s counsel.  But that letter cites Minn. Stat. §256.87, not section 518.57.  Father argued that section 518.57 supported retroactive modification of his support obligation at a November 2001 hearing on a different motion, but that motion is not before us.  Furthermore, the district court declined to consider the argument at that time because father had not made the argument in his motion and supporting memorandum.