This opinion will be unpublished and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:


Linda Ann Johnson, petitioner,





Paul Leroy Johnson, Jr.,



Filed September 30, 2003


Hudson, Judge


Dakota County District Court

File No. F0-99-015961


John R. Kempe, McCullough, Smith & Kempe, P.A., 905 Parkway Drive, St. Paul, Minnesota 55106-1098 (for appellant)


DeAnne L. Dulas, 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, Minnesota 55121 (for respondent)


            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from the denial of his motion to modify support, appellant-father Paul Johnson argues that the district court should have (a) recognized that the custody arrangement for the parties’ children was joint physical custody and set support using the Hortis/Valento formula; (b) granted his motion for amended findings; and (c) made the support modification retroactive to the date he served his motion to modify.  Respondent-mother Linda Johnson argues that the appeal must be dismissed as premature.  We conclude that the appeal is not premature, and we affirm the district court. 


            The stipulated judgment dissolving the parties’ marriage awarded them joint physical custody of their children, stated that the children’s primary residence would be with mother, noted mother and the children might move to Tennessee, and set a support obligation for father but not mother.  After mother and the children moved to Tennessee, the oldest child moved back to live with father, and father moved the district court to adjust child support accordingly.  The district court required each parent to pay support for the child or children living with the other parent, but set support without using the Hortis/Valento formula.  Father moved for amended findings or a new trial.  The district court denied that motion from the bench, father appealed, and the district court then issued a written order denying father’s motion.  This appeal follows.



An appeal “is premature and of no effect” if taken before the “disposition” of a motion listed in Minn. R. Civ. App. P. 104.01, subd. 2.  Minn. R. Civ. App. P. 104.01, subd. 3.  A motion for amended findings is listed in Minn. R. Civ. App. P. 104.01, subd. 2.  Noting that father appealed before the district court issued its written order denying his motion for amended findings, and that father did not file a second appeal after the district court issued its written order, mother argues that this court lacks jurisdiction over the appeal.  But the district court orally denied father’s motion.  And at oral argument before this court, counsel agreed that father’s attorney served the appeal papers after the hearing at which the denial occurred.  Thus, by the time father’s appeal papers were served, his motion had been denied.  Therefore, we decline to dismiss the appeal.  Cf. State v. Schermerhorn, 379 N.W.2d 660, 662 (Minn. App. 1986) (rejecting argument that oral pretrial ruling regarding suppression of evidence was not appealable). 


Generally, child support is set according to the child support guidelines, and any deviation from the guideline amount requires findings addressing certain statutory factors.  Minn. Stat. § 518.551, subd. 5(i) (2002).  Under the Hortis/Valento formula, “the guideline child support amount is the amount indicated by the guidelines, but only for the periods of time that the other parent has actual custody of the children.”  Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001).  In cases of joint physical custody, use of the Hortis/Valento formula “is an application of the guidelines.”  Id.  Thus, “the presumptively correct, guideline child-support amount for parents with joint physical custody is the amount calculated under Minn. Stat. § 518.551, subd. 5(b), for each parent, less the amount offset by the Hortis/Valento formula [and] [a]ny deviation from that amount requires the statutory findings.”  Id. at 793.

Despite the award of joint physical custody, the parties’ stipulated judgment set father’s support obligation at the amount it would have been if mother had sole physical custody; it did not require mother to pay support to father.  Upon emancipation of the two older children, the stipulated judgment stated that father’s support obligation would decrease by 14.2% and 16.6% of the then-existing obligation, respectively.  These decreases in father’s support obligation coincide with the decreases in a support obligation that would occur if a support obligor with three children had (as father does) a net monthly income exceeding $1,000.  Thus, father stipulated to a child support formula that required him to pay the guideline amount of child support as if mother had sole physical custody until the youngest child became emancipated.  In other words, father waived the application of the Hortis/Valento formula.

            In addressing father’s motion, the district court noted that one child lived with father.  It then set support using the formula for split physical custody[1] and refused to apply the Hortis/Valento formula, stating that this case did not involve joint physical custody because one party lived in Tennessee while the other party lived in Minnesota.  Thus, the district court refused to treat the custody arrangement as one for joint physical custody based on its assumption that the amount of time a child spends with a parent dictates (or is at least relevant to) the nature of the custody award.  This assumption is incorrect.  “Joint physical custody” is statutorily defined as a situation where “the routine daily care and control and the residence of the child is structured between the parties.”  Minn. Stat. § 518.003, subd. 3(d) (2002).  It has been previously noted that “[n]othing” in this definition “precludes a 90%/10% care-sharing arrangement [from being labeled] ‘joint[.]’”  Blonigen v. Blonigen, 621 N.W.2d 276, 283 (Minn. App. 2001) (Crippen, J., dissenting).

Furthermore, recent case law has made clear that the dispositive element in determining the nature of a stipulated custody arrangement is the label put on the arrangement by the parties and adopted by the court:

The supreme court has indicated that when a district court adopts the stipulation of parents regarding physical custody, the label the parties place on their stipulated custodial arrangement is binding:


Where . . . the parties have agreed, by stipulated decree, to joint legal custody and joint physical custody . . . and the court has accepted that denomination, the parties will be bound by it.


Ayers v. Ayers, 508 N.W.2d 515, 520 (Minn. 1993).  Recently, the supreme court reaffirmed Ayers stating:


We have held that when parties have agreed to a specific denomination of physical and legal custody and that denomination has been accepted by the district court, the parties will be bound by it.  See Ayers, 508 N.W.2d at 520.  Such denominations, we have said, “will require careful drafting by the parties in the first instance [and] will provide more certainty in resolving future disputes.”  Id.


Frauenshuh v. Giese, 599 N.W.2d 153, 157 (Minn. 1999).  Even more recently, this court noted the primacy of a district court’s characterization of a stipulated physical-custody arrangement.  Blonigen v. Blonigen, 621 N.W.2d 276, 281 (Minn. App. 2001) (applying Ayers), review denied (Minn. Mar. 13, 2001).


Nolte v. Mehrens, 648 N.W.2d 727, 730 (Minn. App. 2002).  Regarding prior case law that might suggest that the amount of time a child spends with each parent could be relevant to whether physical custody was sole or joint, Nolte states:

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 and its progeny have superseded such cases.


Id., 648 N.W.2d 730 n.3.  Regarding child support, the result is that

when parents stipulate to a physical-custody arrangement and the district court adopts that arrangement, 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., 648 N.W.2d at 730.  Thus, the district court erred in refusing to treat this case as one involving joint physical custody.[2] 


Father argues that because this is a case of joint physical custody, the district court abused its discretion by not using the Hortis/Valento formula to set support.  But in the original judgment, father stipulated to a formula for support that did not involve the Hortis/Valento formula.  Thus, the question becomes whether the district court abused its discretion by not modifying this aspect of the support formula set out in the original judgment.  Generally,

the district court enjoys broad discretion in ordering modifications to child support orders.  However, the district court’s discretion must be exercised within the limits set by the legislature.  We will reverse a district court’s order regarding child support only if we are convinced that the district court abused its broad discretion by reaching a clearly erroneous conclusion that is against logic and the facts on record. 


Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002) (citation omitted); see Minn. Stat. § 518.64, subd. 2 (2002) (addressing modification of child support).  This analysis applies to modification of support obligations set as formulas, as well as support set as a specific dollar amount.  Allan v. Allan, 509 N.W.2d 593, 596 (Minn. App. 1993). 

            Here, father’s motion did not explicitly seek application of the Hortis/Valento formula.  Indeed, at the December 24, 2002, hearing on the motion, there was confusion about the precise relief father was seeking.  Regardless of how or when the Hortis/Valento aspect of this case came into focus, the crux of the reason father sought to modify support was because the parties’ oldest child now lived with him.  This fact, however, was addressed by the district court’s order requiring mother to pay support to father for the oldest child on the same basis as father was paying support to mother for the youngest two children.  Specifically, the district court set mother’s obligation for the oldest child without reference to the Hortis/Valento formula, just as father had agreed in the stipulated judgment to pay support without reference to the Hortis/Valento formula.  Exactly what substantial change in circumstances rendered father’s original waiver of the use of the Hortis/Valento formula unreasonable and unfair is neither identified by father nor clear on this record.[3]  Absent the statutorily required substantial change in circumstances rendering this aspect of the original judgment unreasonable and unfair, the district court did not abuse its discretion by refusing to alter this aspect of the judgment.  Because the change in circumstances cited by father cannot, on this record, justify the modification he seeks, we need not address the parties’ disputes regarding whether the district court made the findings necessary to set support in an amount that deviates from the presumptively correct amount suggested by the Hortis/Valento formula. 


            Father sought relief from the district court’s ruling via motions for a new trial and amended findings.  The district court denied father’s motions. 

            Proceedings to modify support under Minn. Stat. § 518.64 are not trials, but “special proceedings” within the meaning of Minn. R. Civ. App. P. 103.03(g).  Angelos v. Angelos, 367 N.W.2d 518, 520 (Minn. 1985).  New trial motions are unauthorized in the context of such motions.  Huso v. Huso, 465 N.W.2d 719, 720-21 (Minn. App. 1991).  Because father’s motion for a new trial was unauthorized, the district court did not abuse its discretion in denying that motion. 

            Motions for amended findings may be made in post-decree modification proceedings.  Hughes v. Hughley, 569 N.W.2d 534, 536 (Minn. App. 1997).  The memorandum accompanying the order denying father’s motion states that father  “failed to produce evidence that demonstrates that the Court’s Findings were made in error or that the conclusion reached by the Court was contrary to the Findings made.”  Citing Lewis v. Lewis, 572 N.W.2d 313 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998), father challenges the denial of his motion for amended findings. 

            Whether to grant a motion for amended findings is discretionary with the district court, and its decision will not be reversed absent an abuse of discretion.  See Bains v. Piper, Jaffray & Hopwood, Inc., 497 N.W.2d 263, 271 (Minn. App. 1993) (applying abuse-of-discretion standard when reviewing denial of motion for new trial or for amended findings), review denied (Minn. Apr. 20, 1993).  The crux of father’s challenge to the denial of his motion for amended findings is that the existing findings did not reflect the amount of time the children were in his care.  As father admitted at the hearing on his motion for amended findings, however, such findings are relevant to his motion to modify support only if the district court should have modified support to include application of the Hortis/Valento formula.  Because we affirm the district court’s refusal to modify the portion of the judgment which does not use the Hortis/Valento formula to set support, findings on the amount of time each child was in the care of each parent were not necessary to address father’s motion, and any error in not making those findings is harmless.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored). 


The district court made its modification of father’s support obligation effective in January 2003.  Father alleges that the modification should have been made effective as of October 2002 when he served his motion.  A modification of support “may” be made retroactive to the date the moving party made his motion, but only from the date he served notice of his motion on the other party.  Minn. Stat. § 518.64, subd. 2(d) (2002); see Bormann v. Bormann, 644 N.W.2d 478, 482-83 (Minn. App. 2002); Finch v. Marusich, 457 N.W.2d 767, 770 (Minn. App. 1990).  On this record, given the lack of precision in father’s motion papers and the lack of clarity at the December 24, 2002, hearing regarding the relief being sought, we cannot say that the district court abused its discretion by making the modification of father’s obligation effective as of January 2003. 



[1]The Hortis/Valento formula is conceptually similar to, but legally distinct from, the formula used for setting support when parents have split (as opposed to joint) physical custody.  When parents have split physical custody, each parent owes a support obligation for the child(ren) in the other parent’s care, the obligations are offset, and the parent with the larger obligation makes a net payment to the other parent.  See Sefkow v. Sefkow, 427 N.W.2d 203, 217 (Minn. 1988) (addressing child support in split custody cases). 

[2]That the label on a custody arrangement is dispositive and identifies the presumptively correct method of setting support does not mean that the district court must set support at the presumptively correct amount.  Regardless of the presumptively correct method of setting support and regardless of the presumptively correct amount of support, the district court is free, upon the making of adequate findings of fact, to deviate from the presumptively correct support amount.

[3]Indeed, at the March 2003 hearing on father’s motion for amended findings, father’s attorney and the district court noted that, because the oldest child was already age 18 and was finishing high school, the support-related ramifications of the older child living with father would be “out the window” “[i]n a few months.”  The following exchange then occurred:


[Mother’s attorney]: This is about changing child support for the younger kids.  That is what he’s really concerned about.


[Father’s attorney]: Exactly. 


This exchange shows that what father was trying to do was parlay a short-term change in circumstances (occasioned by the oldest child moving in with him) into a substantial change in circumstances allowing him to permanently avoid his stipulated waiver of the Hortis/Valento formula.  Thus, father essentially admitted that the support modification he seeks (a change with respect to the younger two children) is unrelated to the changed circumstances he cites as support for that modification (the older child moving in with him).