This opinion will be unpublished and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

A03-352

 

In re Rachele T. Gunter,
petitioner,
Appellant,

vs.

Steven A. Gunter,
Respondent.

 

Filed January 27, 2004

Affirmed in part and remanded

Poritsky, Judge*

 

Dakota County District Court

File No. F3996882

 

 

Ronald B. Sieloff, Yankee Square Office III, Suite 214, 3460 Washington Drive, Eagan, MN  55112 (for appellant)

 

 

Tim D. Wermager, P.O. Box 6, 906 Vermillion Street, Hastings, MN  55033 (for respondent)

 

 

Considered and decided by Toussaint, Presiding Judge; Anderson, Judge; and Poritsky, Judge.


U N P U B L I S H E D   O P I N I O N

 

PORITSKY, Judge

 

On appeal in this dissolution matter, appellant-mother argues that the district court (1) abused its discretion by considering respondent-father’s untimely motion; (2) erred by not applying the endangerment standard for a substantial restriction on her parenting time; (3) abused its discretion when it reduced father’s child support payments by understating father’s net monthly income and overstating mother’s net monthly income; (4) abused its discretion in denying her motion to direct father to reimburse mother for various child-related expenses;  (5) abused its discretion by not awarding mother attorney fees; and (6) abused its discretion in ordering that all issues not addressed in its order be mediated by the parties.  We affirm in part and remand in part.

FACTS

 

The marriage of appellant-mother Rachele Gunter and respondent-father Steven Gunter was dissolved on March 15, 1999.  Pursuant to the parties’ stipulated agreement, the judgment and decree provided that the parties were granted joint legal and physical custody of their three children.  The parties’ custody arrangement contemplated that the children would spend an equal amount of time with each parent.  Father agreed to pay $285 per month in child support.  The issue of spousal maintenance was reserved “for a period of three (3) years from the date of the entry of the Judgment and Decree.”

On September 28, 2001, mother moved to establish spousal maintenance, to modify father’s child support obligation, and to adjust the parties’ parenting time schedule.  Mother was then unemployed.  On January 10, 2002, the district court increased father’s child support payments to $409 per month and ordered him to pay $250 per month in maintenance.  The district court also ordered father to pay one-half of the cost of the children’s school supplies and extracurricular activities.  The parties’ parenting time schedule was amended to provide, “[father’s] parenting time shall be every weekend from Friday afternoon until Monday morning, and two consecutive weeks during the summer.”

Father subsequently learned that mother became employed and, on December 9, 2002, he moved to amend his child support obligation and to terminate spousal maintenance.  In response, mother requested an increase in father’s child support obligation, an adjustment to the parties’ parenting time schedule, and one-half of the cost of the children’s school lunches and other activities.  Father then moved to increase his parenting time.  Both parties sought an award of attorney fees.

On March 21, 2003, the district court issued its decision: (1) increasing father’s parenting time; (2) reducing father’s ongoing child support payments to $387 per month; (3) denying mother’s request for one-half of the cost for the children’s school lunches and other activities; (4) denying mother’s request for attorney fees; and (5) ordering the parties to mediate certain issues.  Mother now appeals from that decision.  The district court also denied father’s motion to terminate maintenance, but that ruling has not been appealed.

D E C I S I O N

I.

As an initial matter, mother argues that the district court abused its discretion by considering father’s motion, contending that it was untimely.  At the February 27, 2003, hearing, however, mother argued only that modification of the parenting schedule would require a showing of endangerment.  She did not raise the timing issue.  Generally, this court will not decide issues that were not raised before the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Because mother failed to raise this argument below, we need not address it for the first time on appeal.

In any event, the court did not abuse its discretion by hearing father’s motion.  The case had come back into court in December 2002 when father moved to terminate spousal maintenance and reduce his child support obligation.  A hearing was scheduled for February 27, 2003.  Mother raised the issue of modifying the parenting-time schedule in her counter-motion served on February 17.  On February 21, five days before the hearing, father served and filed his responsive motion, moving to increase his parenting time.  In making his request for modification to the parenting schedule, father did not raise a new issue; mother had brought the issue of a change in parenting time before the court, and father was merely responding to mother’s motion.  Moreover, his papers were timely served:  Minn. R. Gen. Pract. 303.03(a)(3) provides that a party responding to a motion that raises new issues must file with the district court, and serve on opposing counsel, any memoranda of law or supporting affidavits at least five days before a hearing on the motion.

Finally on the issue of timing, we note that if a party fails to comply with the rule, “[t]he court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, . . . or may take other appropriate action.”  Minn. R. Gen. Pract. 303.03(b) (emphasis added).  The court has broad discretion in applying the rules of motion practice.  Id.  Thus, even if father’s motion was not timely served, given mother’s motion, we conclude that the court did not abuse its discretion in hearing father’s request for a parenting-time change.

On this issue, mother next argues that the district court abused its discretion in adjusting the parties’ parenting-time schedule.  The parties’ original dissolution decree contemplated equal time for both parents, but set no fixed schedule.  On January 10, 2002, the court ordered that father would care for the children “every weekend from Friday afternoon until Monday morning, and two consecutive weeks during the summer.”  On March 20, 2003, the court increased father’s parenting time to “every weekend from Friday afternoon until Monday morning, one evening per week and alternating weeks during the summer months when the children are not in school.”  Mother contends that the increase in father’s parenting time amounts to a restriction on her parenting time, and therefore the district court was required to examine father’s request under a child endangerment standard. 

“A substantial alteration of visitation rights amounting to a ‘restriction’ of visitation requires findings that the existing visitation arrangement ‘is likely to endanger the child’s health or development.’”  Anderson v. Archer, 510 N.W.2d 1, 4 (Minn. App. 1993) (quoting Lutzi v. Lutzi, 485 N.W.2d 311, 315 (Minn. App. 1992)); Minn. Stat. § 518.175, subd. 5 (2002) (court may not restrict parenting time unless it finds parenting time is likely to endanger child’s health or development).  Less substantial changes in a visitation schedule are governed by the best-interests standard.  Archer, 510 N.W.2d at 4; Minn. Stat. § 518.175, subd. 5 (the court shall modify a parenting plan whenever modification would serve the child’s best interests).  Insubstantial modifications of a parenting-time schedule are within the district court’s discretion and need not be supported by findings that such modifications are in the child’s best interests.  Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986).  Determining the proper statutory standard to apply is a question of law subject to de novo review.  Archer, 510 N.W.2d at 4. 

Modification of parenting time may not necessarily constitute a “restriction.”   Mother’s brief spends considerable time calculating the number of hours the parents spend with each child.  Parenting time, however, is not a matter of percentages.    When determining whether a reduction constitutes a restriction, we consider the reasons for the modification, as well as amount of the reduction.  Id. (although modification reduced mother’s total visitation, in light of the reasons for modification and the amount of reduction, the modification did not constitute a restriction); see Auge v. Auge, 334 N.W.2d 393, 400 (Minn. 1983) (district court shall make reasonable and necessary adjustments to visitation schedule, provided the adjustments are in child’s best interests); Lutzi, 485 N.W.2d 314-15 (altering custody arrangement from equal care to one where mother would have custody during entire school year was governed by “endangerment” standard, as alteration would restrict father’s visitation rights); Danielson v. Danielson, 393 N.W.2d 405,  (Minn. App. 1986) (modification of father’s visitation rights was not a “restriction,” where extended summer visitation, together with other opportunities for visitation provided, was reasonable and adequate to maintain the father-child relationship).

Here, in the judgment and decree, the district court found, “The parties have agreed upon a joint physical custodial arrangement which contemplates that the children will be spending essentially an equal amount of time with each parent.”  In its conclusions and order, the court said, “The routine, day to day care of the children shall be allocated equally between the parties.”  The court further ordered, “Weekend time and the children’s school vacation times shall be shared and allocated equally between the parties.”  Shortly after the dissolution, however, mother and the children moved from Hastings to Prior Lake.  Father continued to live in Hastings. In its January 2002 order, the district court noted that “[t]he parties have shared less than equal time in parenting the children.  This is due primarily to the distance between the parties after [mother’s] moves.  The parties agreed to sharing parenting time as equal as possible.”  At that time, the district court denied father’s request for weekday parenting time “due to the distances and the fact that the children have school activities and/or homework to complete during the week.”  

After the January 2002 order, father moved to Prior Lake to be closer to the children.  The February 2003 modification essentially added one evening per week and alternative weeks during the summer months to father’s parenting time.  Although the modification reduced mother’s parenting time, she still cares for the children for more than 50 percent of the time.  We observe that the modification moves the parenting-time schedule closer to the parties’ original agreement that the children would spend an equal amount of time with each parent.  We conclude that the modification is therefore insubstantial and serves the best interests of the children.  See Minn. Stat. § 518.175, subd. 5.  Because the modification to the parenting-time schedule is insubstantial, it was within the court’s discretion, and the court was not required to make best-interest findings. Funari, 388 N.W.2d at 753.

II.

Mother next argues that the district court abused its discretion in modifying father’s child support obligation.  Generally, the district court can modify an order for child support upon a showing of substantially changed circumstances.  Minn. Stat. § 518.64, subd. 2 (2002).  A district court has broad discretion in modifying child support orders and will be reversed only if it made a clearly erroneous conclusion that is contrary to logic and the factual record.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999).  We will not alter a district court’s factual finding unless it is “clearly erroneous.”  Minn. R. Civ. P. 52.01.  A finding is “clearly erroneous” if the reviewing court is “left with the definite and firm conviction that a mistake has been made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

Mother argues that the district court erred because (1) in calculating father’s net monthly income, the court failed to include father’s overtime pay, and (2) the court overstated her net monthly income by imputing income to her.


A.         Father’s net monthly income

Mother first contends that the district court miscalculated father’s net monthly income by excluding his overtime pay.  Minn. Stat. § 518.64, subd. 2(2) (2002) provides the relevant factors for the district court to consider in including overtime compensation.  On a motion for modification, the district court shall not consider a party’s compensation for employment in excess of a 40-hour workweek, provided that the party demonstrates, and the court finds, that:

(i)                the excess employment began after entry of the existing support order;

(ii)             the excess employment is voluntary and not a condition of employment;

(iii)           the excess employment is in the nature of additional, part-time employment, or overtime employment compensatable by the hour or fractions of an hour;

(iv)            the party’s compensation structure has not been changed for the purpose of affecting a support or maintenance obligation;

(v)               in the case of an obligor, current child support payments are at least equal to the guidelines amount based on income not excluded under this clause; and

(vi)            in the case of an obligor who is in arrears in child support payments to the obligee, any net income from excess employment must be used to pay the arrearages until the arrearages are paid in full.

 

Id.  The party seeking to exclude overtime wages from a calculation of child support has the burden to demonstrate that the wages qualify for the statutory exemption.  Id.  But the decision to exclude overtime compensation is ultimately within the district court’s discretion.  Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (“the [district] court may include overtime income in the income used to calculate child support”); see also Justis v. Justis, 384 N.W.2d 885, 890-91 (Minn. App. 1986), review denied (Minn. May 29, 1986).

In the original judgment and decree, the parties stipulated to $285 monthly child support payments; there was, however, no calculation of child support.  In the 2001 modification proceedings, mother argued that father regularly worked overtime hours, and that overtime compensation should be included in father’s income. Father, on the other hand, asserted that “overtime was not included in the . . . child support obligation at the time of the dissolution, and I do not believe it should be now.”  In the resulting January 2002 order, the district court did not address the statutory factors for excluding overtime.  Yet, in rejecting mother’s most recent argument for the inclusion of overtime pay, the district court stated, “In this Court’s order dated January 8, 2002, a formula was outlined to determine the child support obligation of the [Father] based upon his base salary.”  The district court further noted:

Failure to appeal the Order of the Court dated January 8, 2002 does not automatically grant the Petitioner the right to collaterally challenge the determination of the Court in a prior Order by renewing a Motion before a different Judge.  The formula established by Judge Harves’ Order dated January 8, 2002 is the “Law of the Case” and as such must be applied to the respective relief sought by the parties in this proceeding. 

 

Presumably, the “Law of the Case” refers to the district court’s prior child support calculation using father’s base pay. 

We conclude, however, that the law of the case doctrine does not apply to mother’s motion.  First, when the judgment and decree set child support, there was no discussion of base pay and no determination that father’s overtime income would be excluded under Minn. Stat. § 518.551.  Nor were these matters addressed in subsequent orders.  The law of the case doctrine ordinarily applies where an appellate court has ruled on a legal issue and has remanded the case to a district court for further proceedings.  Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994).  “The doctrine is not normally applied by a [district] court to its own prior decision.”  Id.  Second, even if there had been a discussion of overtime pay, a party can always move for modification under appropriate circumstances.  Allan v. Allan, 509 N.W.2d 593, 596-97 (Minn. App. 1993); Minn. Stat. § 518.64, subd 2 (2002).  Mother properly raised the overtime compensation issue before the district court, but neither father nor the district court addressed the statutory factors.  We therefore remand this issue to determine whether father’s overtime compensation qualifies for the statutory exclusion pursuant to section 518.64, subd. 2(c)(2).

In addition, we note that the court’s order did not contain findings indicating how it arrived at $2,929 as father’s net income.  “Net Income” is defined as the obligor’s total monthly income after deducting (i) federal income tax (ii) state income tax (iii) social security deductions (iv) reasonable pension deductions (v) union dues (vi) cost of dependent health insurance coverage (vii) cost of individual or group health/hospitalization coverage or an amount for actual medical expenses [and] (viii) a child support or maintenance order that is currently being paid.  Minn. Stat. §  518.551, subd. 5(b) (2002).  Insufficient findings preclude a meaningful review of a support modification.  See Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976) (stating particularized findings promote the use of statutory standards, explain the district court’s decision to parties, and facilitate meaningful appellate review).  On remand, the trial court is to make a determination of father’s net income as defined by Minn. Stat. § 518.551, subd. 5(b), with explicit findings as to its calculation.  Finally on remand, the district court shall make specific findings on whether there had been a substantial change in circumstances that made the prior support order unreasonable and unfair.  Allan, 509 N.W.2d at 596-97. 

B.         Mother’s net monthly income

Mother next argues the district court overstated her net income, which she attributes to the district court imputing income to her.  As in the case of father’s income, the court did not make sufficient finding to show how it determined mother’s net income.    The district court determined mother’s net monthly income was $1,034, apparently relying on father’s calculations.  Insufficient findings preclude a meaningful review of a support modification.  Rosenfeld, 311 Minn. at 82, 249 N.W.2d at 171.  Because father’s child support payments must be based on an accurate calculation of both parties’ monthly net incomes, this issue should be remanded for a determination of mother’s net income as defined by Minn. Stat. § 518.551, subd. 5(b), supported by explicit findings as to each element of the calculation.

III.

Mother also argues that the district court abused its discretion by rejecting her request for one-half the cost of the children’s school lunches and extracurricular activities.  In support of her argument, mother cites to the January 2002 order, which provides, “[a]s additional child support, father shall pay one-half of all the children’s school supplies, and fees for extracurricular activities including any summer activities, upon presentation of expense due.”  In our opinion, lunches are not school supplies or extracurricular activities; as meals, they are the type of expense to be covered by child support payments.  See Minn. Stat. §  518.54, subd. 4 (2002) (defining “child support” as an award “for the care, support and education” of the parties’ children).  Moreover, mother provided no documentation evidencing her cost for school lunches or extracurricular activities.  The district court’s decision was appropriate.

IV.

Mother next argues that, by denying her request for attorney’s fees, the district court abused its discretion because father brought his motion without first pursuing mediation.  The original judgment and decree provided that if the parties are unable to resolve an issue relating to the children’s welfare, they must obtain a mediator or parenting coach before proceeding with any court process.  But both parties filed motions concerning the children’s welfare without first pursuing mediation.  The decision to award attorney fees rests almost entirely within the discretion of the district court.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Feb. 19, 1999); Rosenberg v. Rosenberg, 379 N.W.2d 580, 587 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).  The court did not abuse its discretion. 

V. 

Finally, mother argues that the trial court erred and abused its discretion in ordering that all issues not addressed in its order be mediated by the parties.  Mother has cited no authority for her position on this issue, and, as far as we can determine, makes no argument in support of it.  The parties agree that the matter rests within the discretion of the district court.  We conclude that the court’s order was reasonable and not an abuse of discretion.

Affirmed in part and remanded in part.

 

 



*   Retired judge of the district court, serving as judge of the Minnesota  Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.