This opinion will be unpublished and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

A03-1360

 

In re the Marriage of:

 Julie Lynn Harms, petitioner,

Respondent,

 

vs.

 

James Earl Harms,

Appellant.

 

Filed May 11, 2004

Affirmed

Forsberg, Judge*

Concurring in part, dissenting in part, Randall, Judge

 

Carlton County District Court

File No. F7-00-1384

 

 

Dennis J. Korman, 6-11th Street, Cloquet, MN 55720 (for respondent)

 

Jack E. Setterlund, 825 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)

 

            Considered and decided by Toussaint, Presiding Judge; Randall, Judge; and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

            In this dissolution appeal, appellant James Harms (father) argues that the district court (a) should have awarded the parties joint physical custody of their children; (b) overstated his net monthly income for child-support purposes by including in it bonuses that are insufficiently reliable to be deemed income; and (c) selected the wrong valuation date for the parties’ home, which was awarded to respondent Julie Harms (mother).  We affirm.

FACTS

            The judgment dissolving the parties’ marriage (a) awarded mother sole physical custody despite father’s request for, and the guardian ad litem’s recommendation of, joint physical custody; (b) set father’s child-support obligation based on a calculation of father’s net monthly income that included his bonuses; and (c) valued the home awarded to mother as of a date before the initially scheduled prehearing conference.  After the denial of father’s requests for posttrial relief and the partial granting of mother’s posttrial motions, father appeals.

D E C I S I O N

I.

            Father challenges the district court’s refusal to award the parties joint physical custody.  Joint physical custody is not preferred, is not generally in a child’s best interests, and is appropriate “only” in exceptional cases.  Rosenfeld v. Rosenfeld, 529 N.W.2d 724, 726 (Minn. App. 1995); Wopata v. Wopata, 498 N.W.2d 478, 483 (Minn. App. 1993).  It “conflicts” with this state of the law “to suggest that denial of divided custody is reversible error.”  Brauer v. Brauer, 384 N.W.2d 595, 599 (Minn. App. 1986). 

            Custody awards are based on a child’s “best interests.”  Minn. Stat. § 518.17, subd. 3(a)(3) (2002); see Minn. Stat. § 518 .17, subd. 1(a) (2002) (listing best-interests factors).  When deciding whether to award joint physical custody, a district court must consider certain statutory factors that focus on the parents’ ability to cooperate in making parenting decisions.  Bateman v. Bateman, 382 N.W.2d 240, 249 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986); see Minn. Stat. § 518.17, subd. 2 (2002) (listing joint-custody factors).  On appeal, review of custody decisions is limited to “whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law” and de novo review of the record “is inappropriate.”  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985). 

Father alleges that the district court used mother’s proposed findings “as the basis” for its best-interests decision.  Even verbatim adoption of proposed findings is not necessarily reversible error, though it does raise the question of whether the district court independently evaluated the parties’ testimony and evidence.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  Here, the district court did not adopt the proposed findings verbatim. 

            Father challenges the use of certain best-interests findings as a basis for awarding mother sole physical custody.  We cannot rebalance the best-interest factors to arrive at a custody decision different from that made by the district court.  Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).  To the extent father challenges the evidentiary support for the findings that mother is the primary parent and has a more intimate relationship with the children, we affirm those findings as not clearly erroneous.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not “discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court’s findings,” and that its “duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings”); Vangsness, 607 N.W.2d at 474-75 & n.1 (applying Wilson).  To the extent father alleges that the finding, which states that it is in the children’s best interests to be in mother’s sole physical custody while having significant parenting time with him, must be defective because he was not awarded significant parenting time, we note that if he wants additional parenting time, he can seek it.  Minn. Stat. § 518.175, subd. 5 (2002). 

            Father argues that because he sought joint physical custody, the district court was “required” to make findings on the statutory joint-custody factors and that it failed to do so.  While the district court “shall consider” the joint-custody factors if joint custody is sought, it has to make the “detailed findings” referred to in the statute if joint custody is awarded over a party’s objection.  Minn. Stat. § 518.17, subd. 2.  Here, joint physical custody was sought but not awarded.  Thus, the district court was not required to make detailed findings on the joint-custody factors.  Moreover, review of the best-interests findings shows that they adequately address three of the four joint-custody factors; and review of the record supports the district court’s implicit determination that the fourth joint-custody factor, the parties’ methods for resolving child-related disputes, does not weigh in favor of awarding joint physical custody here.  See Peterson v. Peterson, 393 N.W.2d 503, 505 (Minn. App. 1986) (stating district court “need not” make findings on each joint-custody factor “if the findings as a whole reflect that the trial court has taken the relevant statutory factors into consideration”).

            Father challenges the district court’s refusal to adopt the guardian ad litem’s recommendation of joint physical custody.[1]  A district court is not required to adopt a recommended custody award and a custody award contrary to an expert’s recommendation can be affirmed if the district court explains why it rejected the recommendation or makes detailed findings on the best-interest factors.  Rutanen v. Olson, 475 N.W.2d 100, 104 (Minn. App. 1991).  Here, the district court made findings on each best-interest factor.  Additionally, the guardian ad litem’s report could be read to suggest that her recommendation was based on a disagreement with the state’s policy disfavoring joint physical custody.  Under these circumstances, we will not alter the district court’s refusal to rely on that report. 


II.

            In determining a support obligor’s net monthly income for support purposes, a district court is to include bonuses that are sufficiently dependable that it is equitable to base a support obligation on the assumption that the obligor will continue to receive those funds.  See, e.g., Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn. App. 1996) (reversing exclusion of bonuses from income); Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986) (affirming exclusion of bonuses from income).  Father argues that because he received a bonus in only three of the prior ten years, his bonuses are not dependable and should not have been included in the calculation of his income for support purposes. 

            Whether a bonus is sufficiently dependable to be included as income for support purposes is a fact question reviewed under a “clearly erroneous” standard of review.  See id.  While the district court did not explicitly address the dependability of father’s bonuses, it did include them in his income.  The trial record shows that while father received three bonuses in ten years, those bonuses were received in the three most recent years and that whether the bonuses were expected to continue was not clear.  These bonus-related facts lie between those of Desrosier and Haasken.  Therefore, whether, on this record, father’s bonuses are sufficiently dependable to be included in the calculation of his income is debatable and hence not clearly erroneous.  Cf. Vangsness, 607 N.W.2d at 474 (noting appellate court views the evidence “in the light most favorable to the trial court’s findings”).  We affirm the inclusion of father’s bonuses in the calculation of his income for support purposes.[2] 

            Father also argues that the district court should have set his support obligation at a fixed amount based on his non-bonus income and directed him to pay an additional percentage of any bonuses, as happened in Novak v. Novak, 406 N.W.2d 64, 68 (Minn. App. 1987), review denied (Minn. July 22, 1987).  But setting obligations as a base amount plus a percentage of irregular income is disfavored.  See Keil v. Keil, 390 N.W.2d 36, 38 (Minn. App. 1986) (support); McCulloch v. McCulloch, 435 N.W.2d 564, 567 (Minn. App. 1989) (maintenance).  And here, the district court rejected this idea, stating it was “not viewed by the Court as credible given that [father] was ordered in the temporary order to do just that and did not comply.”  We affirm the district court’s refusal to set support in the disfavored form of a base-plus-a-percent formula.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (requiring deference to credibility determinations). 

III.

The presumptively appropriate date for valuing marital property is the initially scheduled prehearing conference, but this date can be altered if the parties agree or if the district court finds another date “fair and equitable.”  Minn. Stat. § 518.58, subd. 1 (2002).  A district court’s exercise of its authority to alter a valuation date is discretionary.  Grigsby v. Grigsby, 648 N.W.2d 716, 720 (Minn. App. 2002).  Here, the appraiser valued the parties’ house at $167,000 as of January 12, 2001, and at $187,500 as of September 24, 2002, and the district court adopted wife’s position that she should be awarded the house at its January 2001 value.  Noting the difference in the two valuations, father invokes Minn. Stat. § 518.58, subd. 1, and challenges the use of the initial valuation date.  But here it was the change in value combined with the fact that mother made all of the payments during the proceeding that prompted the use of the initial valuation date.  The district court did not abuse its discretion by using the initial valuation date.

Affirmed.


RANDALL, Judge (concurring in part and dissenting in part).

            I concur with the reasoning and the result of the majority on the issues of custody and home valuation. 

I dissent on the majority’s conclusion that the district court properly set appellant’s child support to include the monetary figure of a prior bonus, where the record was devoid of any proof that the bonuses will continue, and if it does continue, in what amount.

Appellant’s argument was the simplest and the fairest.  He had received bonuses in his three most recent years, but those had been the only years out of the past ten.  Appellant offered evidence from his employer, which was not refuted, that there might not be future bonuses.  Thus, do it fairly as appellant’s attorney suggests.  Set the appropriate guideline amounts on what appellant earns and require him to pay the guideline support on the net of any bonus he might receive.  The argument that appellant had not voluntarily disclosed a prior bonus, and, therefore, cannot complain about the child support order is a makeshift argument.  Appellant’s claimed nondisclosure is not a reason for the courts to be arbitrary and order appellant to pay child support on income that he does not have.

A district court easily has the power to have an order served on appellant and his employer making an annual disclosure on bonuses, or the lack thereof, mandatory and subject to a penalty if not done.  An employer would have no stake in disobeying a court order like that.  Should the appellant attempt to hide it, just like failing to comply with a discovery order, there are sanctions.  But when you fail to comply with a discovery order, a sanction should not be “being ordered to disclose what you do not possess or being ordered to pay a percentage of something you do not have.”

Here we take appellant’s last bonus of $5,600 and assess him guideline support out of that amount for the rest of his child support paying years whether he gets that future bonus or not!  The majority suggests the solution of appellant coming into court for an appropriate motion to modify support.  I ask, why do courts insist on waiting until after the horse runs away to close the barn door?  Appellant pays child support from January through December based on the expectations there will be a bonus.  Then there is no bonus.  It now takes weeks or months, and hundreds to a few thousand dollars in legal fees to move through the court system a motion to modify support.  Motions by obligors to reduce support are not favorite children of the system.  On appeal, we have seen case after case where we affirmed a district court’s denial of a motion to lower child support even though our collective feeling was that we might not have done it that way had we been the district court.  Why go through all of that expense and delay?  Skip all those court hearings and expense.  Order the employer to disclose when it declares a bonus and order a copy sent to the appropriate social service agency[3], and order that guideline child support attach to the “net bonus.”  The appropriate deductions are available to obligors on bonuses as well as regular pay.  Minn. Stat. § 518.551, subd. 5(b) (2002).  Respondent argues that social service agencies do not like to monitor “percentage of bonus” child support and the one involved in this case apparently has refused to do so and will only monitor “regular” child support” payments.  I am not sure why the “work ethic” of a social service agency, if that is the case, runs the court system.

I dissent on this issue and would remand to the district court to write a straightforward and specific order to be served on appellant and his employer mandating a yearly accounting of all salary and bonuses, and then calculate appellant’s child support on his net monthly W-2 income only, and then order child support on the net to be received from future bonuses, if any.

 



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

 

[1] Father argues that the district court “said nothing” about the guardian ad litem’s “strong and unequivocal recommendation for joint physical custody.”  In light of the district court’s order amending its original ruling to reject that recommendation and the memorandum accompanying that order explaining both that the children’s best interests required awarding custody to mother and that the guardian ad litem’s report “does not follow the law” regarding joint physical custody, we reject father’s arguments on these points. 

[2] This ruling does not preclude an appropriately supported motion to modifysupport. 

[3]  “The court may also order the obligor to pay child support in the form of a percentage share of the obligor’s net bonuses, commissions, or other forms of compensation, in addition to, or if the obligor receives no base pay, in lieu of, an order for a specific dollar amount.”  Minn. Stat. § 518.551, subd. 5(a) (2002).