This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Jeanné Marie Hines,






James Joseph Hines,




Filed June 22, 2004

Affirmed in part and remanded in part
Crippen, Judge


Goodhue County District Court

File No. F7-02-1337



Lance R. Heisler, Lampe, Swanson, Morrisette & Heisler, P.A., 105 East Fifth Street, Northfield, MN 55057 (for respondent)


David L. Ludescher, Grundhoefer, Neuville & Ludescher, P.A., 515 South Water Street, Northfield, MN 55057 (for appellant)


            Considered and decided by Peterson, Presiding Judge, Anderson, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from this marriage dissolution judgment, appellant argues that the district court abused its discretion when it (1) did not award joint physical custody; (2) limited the scope of its findings on child support; (3) divided the marital estate; and (4) determined respondent was eligible for spousal maintenance.  There being no error, we affirm the court on its custody award, support order, and property award.  Because the court’s determination is unclear as to the maintenance award, we remand the case for further attention to that issue.


The 12-year marriage of appellant James Hines and respondent Jeanné Hines was dissolved by a May 2003 judgment.  During the pendency of the case, parental sharing of time with their children was determined by an agreement approved in a temporary court order.  In a subsequent trial, the parties disputed custody and support of the children, spousal maintenance, and the equitable division of their marital estate, consisting of a five-acre homestead site, a hobby farm, and an additional 35 acres of land.

            Although appellant requested joint physical custody, the district court awarded respondent sole physical custody, continued the time division set forth in its temporary order, and ordered guideline child support based on sole physical custody without deviation.  “[I]n lieu of” a monthly payment of spousal maintenance, the court awarded to respondent approximately 60% of the marital estate.  Subsequently, the district court denied appellant’s post-trial motions.


1.  Child Custody

            Appellant argues that the district court acted inconsistently by continuing a temporary parenting time division but failed to designate the arrangement as joint physical custody.  We must determine whether the court abused its discretion by making findings that are unsupported by the evidence or by improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996).  Appellant argues that the court improperly applied the law to the facts of this case.

            Applying relevant statutory factors, the district court must base its custody decision on the child’s best interests.  Minn. Stat. § 518.17, subd. 3(a)(3) (2002); see also Minn. Stat. § 518.17, subd. 1(a) (2002) (listing best-interest factors); Rogge v. Rogge, 509 N.W.2d 163, 165 (Minn. App. 1993), review denied (Minn. Jan. 28, 1994).  We have previously not seen cause to suggest that denial of joint physical custody is reversible error.  Brauer v. Brauer, 384 N.W.2d 595, 599 (Minn. App. 1986).  Joint physical custody is not preferred, is not generally in a child’s best interests, and is appropriate only in exceptional cases.  Rosenfield v. Rosenfield, 529 N.W.2d 724, 726 (Minn. App. 1995).

The district court made detailed findings to support its decision, including the determination that respondent had been the primary parent of the children throughout their lives, evident by factors that included her seven-year home-schooling activity.  The court found that respondent had “developed an extremely close bond with all of the children” and that appellant had not spent much time with the children while the parties were together.

            When joint physical custody is sought, statutory joint-custody factors must be considered.  Minn. Stat. § 518.17, subd. 2 (2002).  Although this statute requires detailed findings only when joint physical custody is chosen over a party’s objection, the district court in this case considered the statutory factors and made detailed findings on the joint-custody factors.  These included a finding that for much of the marriage the parties were not able to communicate effectively with each other, which the court said might hurt their ability to resolve disputes on major child-welfare decisions.  No matter what nomenclature the parties used during their temporary child-care arrangement, the court found joint physical custody required cooperation and involvement that has not and does not exist between the parents.  Thus, the district court found that sole physical custody was in the best interests of the children.

            Appellant relies on Claybaugh v. Claybaugh, 312 N.W.2d 447 (Minn. 1981) to support his argument that the district court should have given great weight to the parties’ temporary agreement in making its custody award.  But Claybaugh applies specifically to maintenance awards and provides only that a court may view an order as an important element in making its determination.  Id. at 449.  Moreover, a temporary custody order shall not prejudice the rights of the parties or the child in the final adjudication of the issue.  Minn. Stat. § 518.131, subd. 9 (2002). 

            Appellant’s added argument that the temporary custody arrangement constituted a statutory parenting plan is without merit.  See Minn. Stat. § 518.1705, subd. 3 (2002) (“Upon the request of both parents, a parenting plan must be created in lieu of an order for child custody.”).  Appellant concedes that the agreement does not contain a required method for dispute resolution.  See Minn. Stat. § 518.1705, subd. 2(a)(3) (2002).  The record does not show that both parents requested a parenting plan and the agreement does not meet the requirements for such a plan.  The court was not required to follow the agreement in lieu of its child custody determination. 

            Because the district court made the required findings and properly applied the law to the findings, there was no abuse of discretion in the award of sole physical custody.

2.  Child Support

            Appellant argues that the district court failed to properly consider all of the factors and make the required findings under Minn. Stat. § 518.551, subd. 5 (2002).  A child support decision is reviewed on an abuse-of-discretion standard.  Rogers v. Rogers, 622 N.W.2d 813, 822 (Minn. 2001). 

            The statutory child support guidelines establish “a rebuttable presumption and shall be used in all cases.”  Minn. Stat. § 518.551, subd. 5(i).  This presumption regards the statutory determination of an award based on a percentage of the obligor’s net income and the number of children.  Minn. Stat. § 518.551, subd. 5(b).  Absent findings overcoming the presumption, which the district court did not state, a person “designated as the sole physical custodian” is deemed not a child support obligor under guidelines law.  Minn. Stat. § 518.54, subd. 8 (2002).  Respondent is not a child support obligor and her income is not included in the calculation under subdivision 5(b). 

          Appellant argues that the time division of the children between the parents warrants a child support obligation similar to what would be awarded based on an application of the Hortis/Valento formula.  Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985).  The use of the Hortis/Valento formula is considered a deviation from the child support guidelines when there is an award of sole physical custody.  Rogers, 622 N.W.2d at 821.  The Rogers court determined the legislature’s intentions that time spent with the noncustodial parent be considered only when determining a guidelines deviation.  Id. at 820-21.

          Appellant also contends that the statutes mandate detailed findings to explain a court decision that denies deviation from a guidelines calculation.  As appellant contends, the statute demands “consideration” of six stated factors when the court decides “whether” to deviate.  Minn. Stat. § 518.551, subd. 5(c).  And another subsection declares that the court, when it does not deviate, must make findings on the obligor’s income “and any other significant evidentiary factors affecting the determination of child support.” Minn. Stat. § 518.551, subd. 5(i).  But subdivision 5(i) states that findings specific to factors stated in subdivision 5(c) are required only when the court chooses in favor of deviation.  Id.  More significantly, subdivision 5(c) confirms the central feature of the statutory guidelines, a presumption that income of the obligor will indicate the obligor’s ability to pay.  Moreover, the factors stated in Minn. Stat. § 518.551, subd. 5(c), are confined to the needs of the children and all resources that might be tapped to meet those needs, and the factors do not address needs, expenses, or contributions of the parents that might reduce their contributions.  Id.  We do not find in subdivision 5(i), in its call for findings on “other significant evidentiary factors,” a demand that upsets the guidelines by demanding that they be applied, without deviation, only after calculations that are at least as burdensome as the findings needed to justify a deviation.

            The district court made the required finding of appellant’s income.  The court then ordered him to pay guideline support of $1,014, based on a net income of $2,600 and an obligation in accordance with the number of children.  Because it is evident in the record that the court considered the cause for a deviation and made the required statutory findings, the district court did not abuse its discretion in its support order.

            While it is not determinative of the child support issue, we note appellant’s argument that the district court erred in determining respondent’s income, pointing to a claim by respondent in the record that her net income is $1,361 rather than $1,254 as the district court found; a difference of $107.  The court’s net income finding will not be disturbed if it has a reasonable basis in fact.  Rouland v. Thorson, 542 N.W.2d 681, 685 (Minn. App. 1996).  The court’s finding is reasonable because respondent’s income is comprised of three part-time jobs, at least one of which is “seasonal,” the jobs are hourly, and the demand for work varies.  We will not disturb this finding.

3.  Property Division

            Appellant argues that the district court abused its discretion when it awarded approximately 60% of the marital estate to respondent and approximately 40% to appellant.  The court has broad discretion regarding the division of property in marriage dissolutions and will be reversed only for a clear abuse of discretion.  Hein v. Hein, 366 N.W.2d 646, 649 (Minn. App. 1985).  This court is to reverse for an abuse of discretion only where the district court has made a clearly erroneous determination that is against logic and the facts on the record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

            Minn. Stat. § 518.58, subd. 1 (2002), requires the district court to make a just and equitable division of martial property.  But an equitable division of property is not necessarily an equal division of marital property.  Riley v. Riley, 369 N.W.3d 40, 43 (Minn. App. 1985), review denied (Minn. Aug. 29, 1985). 

            The statute provides that division of the marital estate shall be based on findings on numerous stated factors, including the “income of each party.”  Minn. Stat. § 518.58 (2002).  The record shows the district court considered these factors; its findings recite respondent’s work history, her subsequent and current child care activity, her job skills and desire for further schooling, her current net monthly income of $1,254, and her martial debt obligation.  The court found appellant’s net monthly income to be $2,600. 

            In making its determination, the district court noted that the parties stipulated on property values.  The court ordered that respondent receive assets worth $10,044, the homestead site valued at $220,000, plus the 35 acres valued at $70,000, less a $90,000 mortgage and appellant’s $60,000 lien on the property, for a total award of $150,044.  Appellant received assets worth $35,000 and a lien of $60,000, for a total award of $95,000, or approximately 40% of the marital estate. 

            The district court’s choice of a property division is not against logic and the facts and must be affirmed.

4.  Maintenance

            Appellant argues that the district court abused its discretion when it determined respondent was eligible for spousal maintenance and failed to make findings and conclusions on the amount of respondent’s spousal maintenance need.  Maintenance awards are not altered on appeal unless the court abused its wide discretion.  Prange v. Prange, 437 N.W.2d 69, 70 (Minn. App. 1989), review denied (Minn. May 12, 1989).  In determining the amount of maintenance and whether maintenance should be awarded, the court is to consider statutory factors, and its order normally will state amounts to be paid and the duration of payments.  Minn. Stat. § 518.552, subd. 2 (2002)In essence, a maintenance determination balances the incomes and needs of the two parties and the central determination in that balancing process is the available resources of each party.  Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). 

            The district court found that appellant’s net monthly income was $2,600 with expenses of $2,546, including child support payments of $1,055, but that respondent’s net income of $1,254 did not meet her expenses of $2,340.  But the court’s order appears to apportion the marital property so as to eliminate respondent’s need for maintenance and to award marital property “in lieu of monthly spousal maintenance.”  The court stated that “such a property division eliminated [respondent’s] need for spousal maintenance and was proper [because respondent] worked and raised the children while [appellant] went through college.”

            Although the district court’s findings show it considered the relevant maintenance factors, the court did not make evident its determination whether the marital property division temporarily or permanently displaced respondent’s rights to claim an award for maintenance payments.  Thus, we remand to the court for further attention to the language regarding an award of maintenance, if any, under Minn. Stat. § 518.552.

            Affirmed in part and remanded in part.

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