This opinion will be unpublished and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

A03-143

In re the Marriage of:

 

Terese Rose Dahl, petitioner,

Respondent,

 

vs.

 

John Edward Dahl,

Appellant.

 

Filed September 9, 2003

Affirmed in part, reversed in part, and remanded

Harten, Judge

 

Ramsey County District Court

File No. F5-95-3203

 

Mark Nygaard, Nygaard & Longe, 210 Ivy League Place, 475 North Cleveland Avenue, St. Paul, MN 55104 (for appellant)

 

Sarah Martin Arendt, Jennifer L. Neska, Foster, Hedback, Brever, Arendt & Carlson, PLLC, 201 Anthony Place, 2855 Anthony Lane South, St. Anthony, MN 55418 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant obligor argues that the district court erred in determining that the parties do not have joint physical child custody and in failing to apply the Hortis/Valento formula to his child support obligation, in finding his net monthly income, and in awarding respondent attorney fees.  Because we see no abuse of discretion in the finding of appellant’s net monthly income or in the award of attorney fees, we affirm those issues; because we see an abuse of discretion in the failure to find that the parties have either joint child physical custody or that one party has sole custody, we reverse and remand to enable a physical custody finding and an appropriate child support award.

FACTS

 

Appellant John Dahl and respondent Terese Dahl are the parents of two children, now ages 15 and 12.  The parties’ marriage was dissolved in 1996, when the children were ages 8 and 5. The dissolution judgment was based on a marital termination agreement.  It provided as a finding of fact:

XIX.  That the parties have agreed that the best interests of their children will be served if the parties are awarded joint legal custody and share physical custody in accordance with a schedule which allows [respondent] to have the children approximately sixty-five percent (65%) of the time during the year and [appellant] to have the children approximately thirty-five percent (35%) of the time during the year.

 

(Emphasis added).  The conclusions of law reiterated that “[t]he parties shall be awarded joint legal custody and shall share physical custody of their minor children.”  The conclusions of law also provided that “[appellant] shall pay to [respondent] as and for the support of the minor children the sum of Six Hundred Sixty Dollars ($660) per month”.

Appellant’s net income was $2,200 monthly: the $660 was the guidelines 30% for two children.  Respondent, a teacher, had a net monthly income of $1,462; she had no child support obligation.

During 2000 and 2001, appellant voluntarily increased his payment to $960 monthly, but in October 2001 he notified respondent that he would be returning to the $660 judgment amount.  In July 2002, respondent moved to modify child support, citing as a substantial change in circumstances appellant’s increased income.  Appellant then moved to modify the parenting schedule “to reflect the practice of the parties” and to reduce his child support obligation in light of that modification; specifically, he claimed that he had the children 50% of the time, giving him de facto joint physical custody, and that the Hortis/Valento offset should be applied.

The district court referee agreed with appellant, found that the phrase, “[t]he parties * * * shall share physical custody” meant that the parties had joint physical custody, and applied the Hortis/Valento formula in part to set appellant’s child support at $821.45, or 65% of the guideline $1,264.  However, the referee did not apply that part of the Hortis/Valento that mandates calculating both parties’ child support obligations and offsetting one party’s child support obligation against the other party’s.  The referee also granted respondent $850 in attorney fees.  Appellant moved for reconsideration, arguing that, because the parties had joint custody, the Hortis/Valento formula applied, that respondent had a child support obligation, that her obligation was $253.61, and that this amount should be offset against appellant’s obligation, reducing it from $821.45 to $567.84. 

Respondent made a responsive motion, asking that appellant’s motion be denied and that the findings be amended to state that the parties did not have joint physical custody, that the Hortis/Valento formula did not apply, and that appellant’s child support obligation of $1,264 not be reduced to allow for the amount of time the children spent with him. 

The referee agreed with respondent, retracted the previous determination that the parties had joint physical custody and set appellant’s child support obligation at $1,264.  Appellant challenges the retraction and the child support obligation from this determination, and the award of attorney fees from the previous determination.[1] 

D E C I S I O N

                       

1.         Physical Custody of Children

            Whether the parties have joint physical custody of their children is a mixed question of fact and law.  When reviewing mixed questions of law and fact, this court will correct erroneous applications of law but accord the district court discretion in its ultimate conclusions and review such conclusions under the abuse of discretion standard.  Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997). 

The district court explicitly rejected its original reading of the phrase “share physical custody” in the judgment as conferring joint physical custody, noting that “[t]he parties could have used the term ‘joint physical custody’ in their stipulation, but they did not do that” and that “[t]he intent of the parties as memorialized in their Marital Termination Agreement is important.”  Because the district court found that the parties did not have joint custody, the court also declined to apply the Hortis/Valento formula. 

Legally, only two types of physical custody are recognized: joint physical custody, when the Hortis/Valento formula establishes child support for both parents, and sole physical custody with one parent, when the guidelines establish child support for the non-custodial parent. Nolte v. Mehrens, 648 N.W.2d 727, 730-31 (Minn. App. 2002).  “[I]dentifying whether the parties have joint physical custody or whether one party has sole physical custody is critical to setting the parties’ support obligations.”  Id. at 730. 

In Nolte, “the parties stipulated to ‘primary physical custody’ by mother.”  Id.   This court remanded for an explicit determination of either joint or sole physical custody, holding that,

when a district court awards physical custody, whether based on a stipulation of the parties or not, it must also identify whether the physical-custody award is for sole or joint physical custody.

 

Id. at 731.  In light of Nolte, we remand for the district court to determine whether the parties have joint physical custody or whether one party has sole physical custody, and, in light of that determination, establish the appropriate child support pursuant to the Hortis/Valento formula or the child support guidelines.

2.         Appellant’s Net Monthly Income

            A district court’s findings on net income for purposes of child support will be affirmed on appeal, if those findings have a reasonable basis in fact and are not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).  Appellant repeatedly informed the referee that his net monthly income was $4,212.56.  On appeal, he claims that the standard income tax withholding tables show that it is actually $3,929.47 (a difference of $283.09, generating a difference in child support of $84.93).  Appellant’s submission of his net monthly income provided a reasonable basis in fact for the finding that his net monthly income was what he claimed it to be, and we affirm that finding.

3.         Attorney Fees

            An award of attorney fees under Minn. Stat. § 518.14, subd. 1, will not be disturbed absent a clear abuse of the district court’s discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. 18 Feb. 1999).  The district court awarded respondent $850 in attorney fees “based upon the disparity in earning capacity of the parties” and finding that appellant had $154.35 more than respondent with which to meet his needs and that respondent did not have the means to pay her attorney fees.  See Minn. Stat. § 518.14, subd. 1(3) (2002) (court must find that party receiving attorney fees does not have the means to pay them).  Documents in the record as to respondent’s income and expenses support her need for attorney fees and, by the time the district court awarded attorney fees, it was familiar with the parties’ financial positions.  We conclude that the award was not an abuse of discretion and affirm it.

            In summary, we affirm both the finding as to appellant’s net monthly income and the award of attorney fees to respondent.  We reverse and remand the child support award with instructions that the district court, pursuant to Nolte, identify whether the parties have joint physical custody or whether one party has sole physical custody and set child support accordingly.

            Affirmed in part, reversed in part, and remanded.

 



[1] Respondent argues that this appeal is untimely because appellant moved for reconsideration rather than to amend the 15 October 2002 order and thereby failed to stay the time for appeal.  While a motion for amendment stays the time for appeal, a motion for reconsideration does not.  See Minn. R. Civ. App. P. 104.01, subd. 3 (“notice of appeal filed before the disposition of [a motion to amend under Minn. R. Civ. P. 52.02] * * * is premature and of no effect”); Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996) (motion for reconsideration does not extend the time to appeal an underlying judgment), review denied (Minn. 23 Dec. 1996).  Respondent’s argument fails for two reasons.  First, respondent moved to amend the 15 October 2002 order, making it unappealable until the disposition of her motion.  Second, although appellant’s motion was labeled “motion for reconsideration,” it sought an order “[a]mending the child support order of October 15, 2002.”  Courts consider the substance of a motion rather than its label in determining whether it stays the time to appeal.  See, e.g., Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997) (motion labeled “for amended findings” that made no new legal or factual arguments was in fact a motion for reconsideration), review denied (Minn. 19 Feb. 1998).