This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
William Thomas Gillet, petitioner
Jane Ellen Gillet,
Filed May 31, 2005
Affirmed in part, reversed in part, and remanded
Dakota County District Court
File No. F7-99-2589
Judith M. Rush,
Ronald B. Sieloff, Sieloff and
Associates, P.A., Yankee Square Office III,
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from postjudgment orders imposing a child-support obligation, William Gillet challenges the district court’s determination that Jane Gillet is a joint physical custodian of their two children and also challenges the application of the Hortis/Valento formula. We conclude that the district court did not abuse its discretion in determining that the physical custody is joint, but it abused its discretion in computing William Gillet’s support obligation and in making that obligation retroactive. We therefore affirm in part, reverse in part, and remand.
F A C T S
William and Jane Gillet’s marriage was dissolved by a stipulated judgment in July 1999. The judgment provided that the Gillets would have joint legal custody of their two children and would “continue to co-parent their minor children, with [William Gillet] being granted primary physical custody.” The judgment reserved the issue of child support until the children were old enough that Jane Gillet would not need to care for them during the day. At that point Jane Gillet’s child-support obligation would be determined by statute and would be retroactive to the time daycare ended.
The judgment established a parenting plan, premised on the recognition that “the children need each of the parents as active parents in [their] lives.” The parenting plan gave the parents “equal rights and responsibilities including sharing the right to make major decisions determining each child’s upbringing, including education, health care and religious training.”
In 2000 William Gillet moved for a specific “access” schedule and Jane Gillet moved for “reasonable visitation.” Neither motion sought a modification of custody. On May 3, 2000, the district court issued an order setting a “visitation” schedule. Later in May, the district court sent each parent a letter, indicating that Jane Gillet was “exercising visitation” while she cared for the children during the week and could do so in her home. The court also stated that it viewed Jane Gillet’s time with the children as “parenting” rather than daycare.
In August 2001, in response to a request for clarification of the May 3 order, the district court issued another order, stating that Jane Gillet had been granted “reasonable visitation/parenting time” Monday through Friday from 7 a.m. to 4 p.m. and that she was not obligated to relinquish that time if William Gillet was off work.
Gillets’ youngest child started attending school full time in September
2002. Since then, Jane Gillet has been
caring for the children Monday through Friday for approximately forty-five
minutes after school until William Gillet gets home. In February 2003, in response to William
Gillet’s application for nonpublic assistance,
In June 2003 the child-support magistrate (CSM) issued an order requiring Jane Gillet to pay William Gillet child support. The CSM determined Jane Gillet’s obligation under the guidelines.
In September 2003 the district court vacated the CSM’s order and remanded for a hearing to determine the nature of the physical custody provided in the judgment. Relying on Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn. App. 2002), the court concluded that a determination of child support could not be made without a determination on the nature of the physical custody.
On February 11, 2004, the district court issued an order finding that the judgment provided the parents joint physical custody and that the children spent fifty percent of the time with Jane Gillet during the winter and fifty-nine percent of the time during the summer.
On March 1 the CSM filed an order signed February 24, requiring William Gillet to pay Jane Gillet child support based on the Hortis/Valento formula. (The parties refer to this order interchangeably as the March 1 order and the February 24 order.)
On May 26 the district court denied William Gillet’s motion for a new trial or amended findings. The court concluded that the provisions of the judgment were consistent with the statutory definition of joint physical custody.
William Gillet appeals from the February 11, March 1, and May 26 orders. He contends that (1) the express language of the stipulated judgment requires Jane Gillet to pay child support after she no longer provides childcare for the children; (2) the district court’s determination that the parties intended to share joint physical custody is contrary to the plain language of the judgment; (3) the determination of the allocation of time the children spend with each parent is not supported by the record; and (4) the order imposing a child-support obligation on William Gillet is unjust because he is the primary physical custodian and bears the vast majority of the children’s expenses.
D E C I S I O N
As a preliminary matter, Jane Gillet argues that the CSM’s March 1 order may not be challenged in this proceeding because the time for appeal of that order expired on April 30, 2004, and was not tolled by the filing of a motion for amended findings or an evidentiary hearing. We disagree.
The CSM’s March 1 order implemented the district court’s February 11, 2004 order finding that the parties had joint physical custody and remanding to the CSM for a determination of the Gillets’ respective support obligations under the Hortis/Valento formula. Contrary to Jane Gillet’s argument, William Gillet’s timely motion for a new trial or amended findings of the February 11 order tolled the time for appeal of the March 1 order until the district court denied the motion on May 26. See Minn. R. Civ. App. P. 104.01, subd. 2 (stating that “if any party serves and files a proper and timely motion [to amend or for a new trial], the time for appeal of the order or judgment that is the subject of such motion runs from the service by any party of notice of filing of the order disposing of the last such motion outstanding”).
Because William Gillet filed this appeal on July 27, 2004, within sixty days after the notice of filing of the district court’s May 26 order denying his motion for a new trial or amended findings of the February 11 order, the appeal of the March 1 order is timely.
William Gillet argues that the district court erred by refusing to enforce the child-support obligation as stated in the judgment. According to William Gillet, the clear and unambiguous language of the stipulated judgment limits the child-support obligation to Jane Gillet and, therefore, he cannot be held responsible for a payment under the Hortis/Valento formula.
to constraints imposed by nonbargainable interests of children, a stipulated
dissolution judgment is generally treated as a binding contract. Johnson
v. Van Zee, 370 N.W.2d 471, 473 (
a stipulated agreement is ambiguous is a legal question in the first
instance. Blattner, 322 N.W.2d at 321; Halverson
v. Halverson, 381 N.W.2d 69, 71 (
Paragraph seven of the judgment addresses the issue of child support:
The issues of child support and day care contribution shall be reserved until such time as [Jane Gillet] no longer provides full-time day care for both of the parties’ minor children. [Jane Gillet’s] child support obligation and day care contribution shall be determined according to Minnesota Statute and shall retroactively apply to the first day in which [Jane Gillet] no longer provides full-time day care for both of the parties’ minor children.
The express language of the first sentence of paragraph seven reserves the issue of child support until after Jane Gillet is no longer required to provide daycare for the Gillets’ minor children. On its face, the first sentence reserves the issue of child support generally and does not impose an exclusive child-support obligation on Jane Gillet.
second sentence of paragraph seven singles out Jane Gillet’s child-support
obligation and provides that it will be retroactive and that it will be determined
William Gillet contends that because the second sentence of paragraph seven singles out Jane Gillet’s obligation, it should be read as making Jane Gillet the sole obligor. But the specification of procedures that apply to Jane Gillet’s child support does not establish that she will be the sole obligor. The specific procedures embody the apparent purpose of making her obligation retroactive to the time when her childcare services would no longer be required. William Gillet therefore reads more into the second sentence of paragraph seven than its plain language reasonably allows.
When drafting the stipulated agreement, William Gillet may individually have intended that Jane Gillet would initially provide daycare for the children in lieu of child support and would begin paying child support, exclusively, once her daycare services were no longer needed. A provision to that effect might have been reasonable in light of the fact that William Gillet voluntarily assumed the majority of the children’s expenses. But the stipulated agreement does not unambiguously reflect that intent. On its face, paragraph seven reserves the issue of child support generally and establishes how Jane Gillet’s obligation is to be calculated; paragraph seven cannot reasonably be read to impose a sole child-support obligation on Jane Gillet.
Because the parties did not stipulate that Jane Gillet would be the sole obligor, the district court acted within its discretion in concluding that before the Gillets’ child-support obligations could be established, it was necessary to ascertain the nature of the physical custody provided in the judgment. See Nolte v. Mehrens, 648 N.W.2d 727, 731 (Minn. App. 2002) (remanding for determination of specific nature of physical custody under traditional labels, when parties stipulated that mother would have primary physical custody but district court did not specify whether physical custody would be sole or joint).
William Gillet next argues that even if the district court correctly concluded that the judgment did not impose a sole child-support obligation on Jane Gillet, the court abused its discretion by finding that the judgment provided for joint physical custody. William Gillet claims that the court’s finding is inconsistent with the plain language of the judgment, which designates him as the children’s primary physical custodian and provides that the children will reside with him. We do not agree.
The district court implicitly determined that the stipulated judgment’s custody provision was ambiguous and construed it in light of other provisions in the judgment and extrinsic evidence of the Gillets’ intent. The court did not abuse its discretion by finding that the judgment provided joint physical custody.
First, as the district court noted, the plain and ordinary meaning of the terms used in the judgment implies joint physical custody. Paragraph two of the stipulated judgment provides that “[t]he parties shall continue to co-parent their minor children, with [William Gillet] being granted primary physical custody.” The use of the word “primary”—meaning “principal” or “[b]eing or standing first in a list”—in connection with the physical-custody award implies that there is “secondary” physical custody, and that both parents therefore share physical custody even though one parent is the principal custodian. See The American Heritage Dictionary of the English Language, 1438 (3d ed. 1992) (defining “primary”). The implication of the clear and unambiguous language of paragraph two is that, although the children would reside primarily with William Gillet, both parents would continue to be involved in the routine physical care and control of the children.
Second, even if the term “primary physical custody” is ambiguous, the district court’s description of the Gillets’ physical-custody arrangement suggests that they intended to share physical custody. See Nolte, 648 N.W.2d at 730 (stating that “the dispositive factor in determining whether [a physical-custody] arrangement establishes sole or joint physical custody . . . is the district court’s description of the physical-custody arrangement”). The parenting-plan agreement, set forth in paragraph three of the stipulated judgment, is consistent with the statutory definition of joint physical custody. Joint physical custody “means that the routine daily care and control and the residence of the child is structured between the parties.” Minn. Stat. § 518.003, subd. 3(d) (2004). The parenting plan provided that “the routine daily care and control and residence of the children [would] be structured as agreed upon between the parties.” The parenting plan thus tracks the statutory definition of joint physical custody almost verbatim.
Third, the parenting plan actually structured the care and control of the children between the Gillets and suggests that they intended to share physical custody. The parenting plan designated an “on-duty parent,” who would make decisions about the children’s day-to-day care and control, would parent the children while on duty, and would be solely responsible for the children during that time. The plan specified that the Gillets would “provide parenting during the time they [were] scheduled to care for [the] children.” (Emphasis added.) It also stated that each parent “shall have equal rights and responsibilities[,] including sharing the right to make major decisions [regarding] each child’s upbringing, including education, health care and religious training.” Under the plan, each parent would also continue to have equal access to all medical, educational and other important records of the children.
the record as a whole suggests that the Gillets intended to have joint physical
custody. The district court found that
Jane Gillet had consistently maintained that William Gillet and his attorney told
her that the primary-physical-custody designation was included in the judgment
only to provide the children with a mailing address. The court also found that although William
Gillet’s counsel submitted an affidavit stating that she intended the term
“primary physical custody” to mean sole physical custody, at a hearing in April
2000 she had advised the court that the stipulated judgment was intended to
provide for joint physical custody.
Finally, the court found that the stipulated judgment was drafted by
William Gillet’s counsel and that Jane Gillet was unrepresented at the time. This finding alone supports the district
court’s construing any ambiguities in the stipulated judgment against William
Gillet. See Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (
William Gillet argues that the district court’s May 2000 and August 2001 orders, which refer to the time Jane Gillet was scheduled to spend with the children as “visitation,” indicate that the stipulated judgment granted William Gillet sole physical custody and Jane Gillet reasonable visitation. The use of the term “visitation” is undeniably consistent with a sole-physical-custody arrangement. But the issue addressed in these orders was scheduling, not the nature of the physical custody. The orders are not therefore determinative of the nature of the physical custody. The district court employed the term “visitation” interchangeably with custodial or parenting time.
Given the plain and ordinary meaning of the term “primary,” the district court’s description of the Gillets’ physical-custody arrangement, and the extrinsic evidence, the district court did not clearly err by finding that the judgment provided for joint physical custody.
William Gillet argues that even if the district court did not err by finding that the judgment provided for joint physical custody, the district court abused its discretion in allocating the time the children spend with each parent. He claims that the court’s finding that the children spend fifty percent of the time with Jane Gillet during the winter and fifty-nine percent of the time during the summer is inconsistent with the evidence.
The district court based its time allocation on the dissolution judgment and on its subsequent orders. The judgment allowed Jane Gillet time with the children Monday through Friday from 7 a.m. until 4 p.m., and the district court’s May 2000 order allowed her one weekday overnight and every other weekend. Jane Gillet does not dispute that when the children are at school, she sees the children only for forty-five minutes to an hour after school. For that reason, William Gillet argues that the district court clearly erred by crediting Jane Gillet, for purposes of the Hortis/Valento formula, for time during which the children are at school.
the judgment did not designate Jane Gillet as the sole obligor and the district
court reasonably found that the Gillets had joint physical custody of the
children, the time Jane Gillet was allocated with the children Monday through
Friday, including the school time, is custodial, and it was within the court’s
discretion to credit her for that time in applying the Hortis/Valento formula. Under Hortis/Valento, child support is
not based on the percentage of time children are in the physical care of the
other parent but on the percentage of time a parent has actual custody of a
child. See Bender v. Bender, 671 N.W.2d 602, 608 (
Gillet argues that a rigid adherence to the guidelines in this case results in
the unjust imposition of a child-support obligation on a primary physical
custodian who is also responsible for the majority of the children’s expenses,
including food, clothing, private-school tuition, and extracurricular
activities. See Tell v. Tell, 383 N.W.2d 678, 683 (
We conclude that the district court erred in calculating William Gillet’s obligation under the Hortis/Valento formula because it multiplied William Gillet’s monthly expenses ($3,542.25), rather than his net monthly income ($3,180), to arrive at his annualized monthly child-support obligation. See Hortis v. Hortis, 367 N.W.2d 633, 635 (Minn. App. 1985) (stating that child-support obligation in joint-physical-custody cases must be calculated based on guideline amounts for periods in which each parent did not have custody).
The district court also erred by making William Gillet’s child-support obligation retroactive. The judgment expressly provided that Jane Gillet’s child-support obligation would be retroactive to the time when she no longer provided daycare for the children. But the judgment made no such provision for William Gillet.
We therefore remand for recalculation of child support. When recomputing William Gillet’s obligation, the district court should also consider any inequities that result from the imposition of a child-support obligation on a primary custodian who incurs monthly fixed expenses in maintaining a home for the children and is allegedly responsible for the majority of the children’s fixed expenses.
Affirmed in part, reversed in part, and remanded.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.