This opinion will be unpublished and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

A03-1616

 

 

In re the Marriage of:

Elizabeth Louise Neisen, f/k/a Elizabeth Louise Thompson,

f/k/a Elizabeth Louise LaRowe, petitioner,

Respondent,

 

vs.

 

Steven Mark Thompson,

Appellant.

 

 

Filed June 15, 2004

Reversed and remanded in part

Toussaint, Chief Judge

 

Ramsey County District Court

File No. F6-94-42

 

Elizabeth Louise Neisen, 27896 Cottonwood Street Northwest, Isanti, MN 55040 (pro se respondent)

 

Amy A. Anderson, Assistant Ramsey County Attorney, 50 West Kellogg Blvd., Suite 415, St. Paul, MN 55102 (statutory counsel)

 

John G. Westrick, Westrick & McDowall-Nix, PLLP, 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Randall, Judge; and Forsberg, Judge.*
 

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

 

Appellant-father Steven Thompson argues that the district court erred in holding that he was not entitled to satisfaction of his arrears in child support, refusing to consider his motion to modify the allocation of the income tax dependency exemption to include both children, and not issuing findings for this refusal.  Because (1) the district court did not address whether the parties’ extrajudicial agreement was contractually sound and otherwise fair and reasonable, and (2) there is no legal support for the district court’s determination that a party filing a motion to modify the allocation of the income tax dependency exemption must also file a motion to modify child support, we reverse and remand in part.
 

D E C I S I O N

 

I.

Satisfaction of Child Support

 

A district court has broad discretion to make determinations regarding the support of the parties’ children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  This court reviews the district court’s decisions in such matters for an abuse of discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law.  Id.; Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998).

At the district court, appellant relied on Karypis v. Karypis in support of his claim that he satisfied his child support obligation because, pursuant to an agreement between the parties, he had physical custody of the children for a longer period of time than the joint-physical-custody arrangement contemplated.  458 N.W.2d 129, 131 (Minn. App. 1990) (concluding that father had satisfied his support obligation during the time the children lived with him and did not owe mother, who had sole physical custody, unpaid child support), review denied (Minn. Sept. 14, 1990).  The district court concluded:

Karypis does not apply, and . . . Karypis was a sole physical custody case in which the support obligor took de facto custody.  The court declines to give [appellant] credit for direct support provided to the children while they were in his care because joint physical custody contemplates and expects that there will be direct support for the children while they are in his care.

 

Appellant challenges this decision, arguing that Karypis is not limited to sole physical custody cases. 

The question of whether Karypis applies to this case is irrelevant because Karypis was superceded by statute.  See 1991 Minn. Laws ch. 266, § 3 (now codified at Minn. Stat. § 518.57, subd. 3 (2002)).  Furthermore, the legislature did not limit the application of that statute to sole-physical-custody cases.  See Minn. Stat. § 518.57, subd. 3.  Rather, the proper question is whether based on the parties’ extrajudicial agreement, appellant satisfied his child support obligation. 

But given the record before this court, we cannot reach this issue.  Here, the extrajudicial agreement between the parties was not judicially approved.  While this fact does not necessarily make the agreement invalid, an extrajudicial agreement is enforceable only if it is (1) contractually sound and (2) otherwise fair and reasonable.  Kielley v. Kielley, 674 N.W.2d 770, 776-77 (Minn. App. 2004).  Because here the district court did not address the Kielley factors, we reverse and remand with instruction that the district court consider these two factors in a manner consistent with our analysis in Kielley[1], and issue proper findings. 
 

II.

Income Tax Dependency Exemptions

            Next, appellant claims that the district court erred in refusing to consider his motion to modify the allocation of the income tax dependency exemption to include both children and failing to issue findings for its decision.  The allocation of federal tax exemptions is within the discretion of the trial court and will not be overturned absent an abuse of that discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

The district court refused to modify the allocation of the tax dependency exemptions on the grounds that “there [wa]s no motion for modification of child support before the court.”  Appellant does not dispute that he did not file a motion for modification of child support at that time, but argues that modification of the allocation of the income tax dependency exemption does not require a separate filing of a motion for modification of child support.  Therefore, he asks this court to reverse and remand so that the issue can be determined on its merits.

It is well-established that modification of the allocation of the income tax dependency exemption is analogous to modifying child support and must be modified in accordance with Minn. Stat. § 518.64 (2002).  Biscoe v. Biscoe, 443 N.W.2d 221, 224 (Minn. App. 1989); Joneja v. Joneja, 422 N.W.2d 306, 310 (Minn. App. 1988).  We are mindful, however, that modification of tax dependency exemptions can require consideration of factors in addition to those involved in modifying support and, therefore, a separate motion for modification of the tax dependence exemption is required.  Compare Minn. Stat. § 518.64, subd. 2 (addressing, among other things, factors considered in modifying support) with Biscoe, 443 N.W.2d at 224-25 (noting that waiver by custodial parent is required if dependency exemption is to be taken by noncustodial parent).  However, neither the caselaw nor section 518.64 support the district court’s conclusion that a party filing a motion to modify the allocation of the income tax dependency exemption must also file a motion for modification of child support.  Thus, we reverse the court’s legal determination as to this issue.

Notwithstanding this determination, after the district court issued its August 19, 2003 order, but before filing this appeal, appellant filed a motion to modify child support and the allocation of the tax dependency exemptions to include both children.  On November 5, 2003, the district court considered appellant’s requests, issued findings, and refused to modify the allocation of the tax dependency exemptions.  Because the merits of appellant’s motion to modify the allocation of the income tax dependency exemptions were ultimately considered by the district court, and that decision is not on appeal, we reject appellant’s request that this issue be remanded.

We also reject appellant’s claim that the district court abused its discretion in failing to issue findings when refusing to consider his motion to modify the allocation of the income tax dependency exemptions.  When considering a motion to modify the allocation of income tax dependency exemption, findings are required only if the motion is granted.  See Biscoe, 443 N.W.2d at 225 (remanding the district court’s decision granting motion to modify tax exemption for failure to issue findings, and instructing that “[u]pon remand, the court should reconsider its dependency exemption modification, and if upholding the provision, should include the requisite findings”) (emphasis added).  Because the district court did not grant appellant’s motion, no findings were required.

            Reversed and remanded in part.



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

[1]In Kielley, this court listed four factors relevant in determining whether an extrajudicial agreement meets the “otherwise fair and reasonable” requirement.  The district court should consider whether the extrajudicial agreement is unfair and unreasonable to the children, parties; state, and the court.  See id. at 778-79.