This opinion will be unpublished and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
Jeanne Marie Kleine n/k/a
Jeanne Marie Kramer, petitioner,
Donald Kenneth Kleine,
Filed May 24, 2005
Douglas County District Court
File No. FX-98-13
Ann L. Carrott, 710
Jeffrey L. Loftness, Kristine Anderson Isle, Loftness & Anderson, P.A., 327 South Marschall Road, Suite 370, Shakopee, MN 55379 (for appellant)
Christopher Karpan, Douglas County Attorney, Daniel C. Lee, Assistant County Attorney, 305 Eighth Avenue West, Alexandria, MN 56308 (respondent intervenor)
Considered and decided by Dietzen, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.
Following emancipation of the second of the parties’ three children, a child support magistrate used the Hortis/Valento formula to calculate child support for the remaining minor child. Respondent sought review of the magistrate’s order and the district court reversed, concluding that support was to be determined by applying the support guidelines, thus recognizing the split-custody and child-support arrangement that had been observed by the parties at all times after the dissolution of their marriage. Because the district court properly determined that child support was to be calculated according to support guidelines and not according to the Hortis/Valento formula, we affirm.
Appellant Donald Kleine and respondent Jeanne Kleine, n/k/a Jeanne Kramer, dissolved their marriage in September 1998. Three children were born during the marriage: M, in 1982; C, in 1985; and J, in 1992. The dissolution decree included the following description of the parties’ stipulated custody arrangement:
The parties agree that it is in the best interests of their minor children that the parties be awarded joint legal custody of their minor children. The parties further agree that it is in the best interests of their minor children that the parties be awarded joint physical custody of their minor children but that the actual physical custody and primary parenting of the children remain as stipulated by the parties in the Temporary Stipulation, that is, [respondent] be awarded actual physical custody and primary parenting of [J] and [appellant] be awarded actual physical custody and primary parenting of [M] and [C].
The parties agree that actual physical custody and primary parenting means that the party awarded actual physical custody and primary parenting of a child or children is the custodian of that child or children and shall make all day-to-day decisions regarding that child or children, including, but not limited to, the school the child or children shall attend, the child care provider, the church the child or children shall attend and the health care providers for the child or children, not withstanding the provisions of joint legal custody.
The parties were unable to stipulate as to child support and agreed to submit that issue to the district court. Child support was subsequently established by the district court based upon the statutory guidelines; neither party objected to either the amount of support each was to pay to the other nor to the formula upon which support was based. The order now before this court on appeal makes the following reference to the original support order issued in 1998:
The calculations done by the Court provided for support pursuant to the guidelines with appropriate setoffs and did not take into account the time each parent spent with the children. Although the Judgment and Decree provided for joint physical custody, the Hortis/Valento formula was not applied. . . .
It is undisputed that under the 1998 child-support order appellant was to pay guideline support to respondent for J, and respondent was to pay guideline support to appellant for M and C. Setoffs of the two obligations were anticipated in the 1998 order, but those setoffs involved calculations according to the guidelines, not according to the Hortis/Valento formula.
time M became emancipated, the motion of intervenor
Not surprisingly, the emancipation of C gave rise to the issue
now before us. When
Respondent sought review by the district court of the CSM’s order, contending that the Hortis/Valento formula had never been applied previously and was inapplicable in establishing child support for J. The district court agreed and reversed the CSM, finding that
the “joint physical custody” label . . . was only a label and was not used by the Court in establishing child support[,] . . . was not considered when the support was modified after the first child graduated from high school, and . . . was ignored by the parties when handling children’s issues as the children were growing up. . . . [T]his was a sole physical custody arrangement from the beginning and continues to be.
The district court ordered appellant to pay $658.32 per month based on his guideline obligation for J. Appellant challenges the district court’s order.
D E C I S I O N
A district court has broad discretion
to provide support for the parties’ children.
See Putz v. Putz, 645 N.W.2d 343, 347 (
We note initially that this case
raises once more the thorny issue of “labels” and the effect that custody
designations have upon resulting child-support obligations. As noted by this court in Nolte v. Mehrens, “[I]dentifying whether the parties have joint
physical custody or whether one party has sole physical custody is critical to
setting the parties’ support obligations.”
648 N.W.2d 727, 730 (
It is uncontested that from 1998 through the emancipation of C in 2003, each party was responsible for paying guideline support to the other for the child or children in that other’s care (subject, of course, to the Sefkow formula setoffs). There was no complaint, much less any formal appeal, by either party in connection with those obligations. When C became emancipated, J was the sole remaining minor child. Appellant argues in effect that even though the “split-custody” formula of Sefkow may have been tolerable when there were enough minor children in existence to make that formula a reality, now that there is but one minor child, split custody is a misnomer and both parties should share her support on the percentage basis set forth in the Hortis/Valento formula.
We recognize that application of the Hortis/Valento
formula is presumptively correct in response to a designation of “joint
physical custody” of the parties’ children.
Bender v. Bender, 671 N.W.2d 602, 608 (
The Nolte court implicitly addressed the problem that is present here in its cogent observation that
when parents stipulate to a physical-custody arrangement and the district court adopts that arrangement, the dispositive factor in determining whether the arrangement establishes sole physical custody for one parent or joint physical custody for both parents, and therefore whether it is presumptively appropriate to apply the Hortis/Valento child support formula, is the district court’s description of the physical-custody arrangement.
Nolte, 648 N.W.2d at 730.
Here, in the dissolution decree, the parties stipulated that they would share “joint physical custody” of the three children with “actual physical custody” of two children with appellant and one child with respondent. Had the parties been able to interpret and apply the custody language to the inevitable issue of child support, there is a considerable likelihood that the present litigation could have been avoided. Unfortunately, the parties could not agree about support, and the district court undertook to establish the child-support obligation of each party. Thus, while the use of the term “joint physical custody” in the original order may, indeed, have created a presumption that the Hortis/Valento formula was applicable, the district court in its original dissolution decree sufficiently rebutted that presumption by (1) defining “actual physical custody” in terms indicative of a split-custody arrangement, and (2) declining to apply Hortis/Valento and instead applying the offset guideline Sefkow formula applicable to a split-custody arrangement.
The parties accepted and complied with the 1998 support order
under which each party paid guidelines support to the other for the children in
that other’s care. It is only at
present, when there is but one remaining minor child—a child whom appellant
recognized as deserving of support from him pursuant to the guidelines while he
was also able to take advantage of and profit by the setoff he received because
respondent was paying guidelines support to him for one or two children in his
care—that appellant insists that it is the Hortis/Valento formula that must be
applied. We disagree. In 1998, the district court set child support
after determining that the custody arrangement was, in fact, one in which each
party had sole physical custody of one or two of the minor children. The parties’ compliance with that
determination throughout the years gives credibility to that determination and
establishes a history that is impossible to disregard. See
Allan v. Allan, 509 N.W.2d 593, 596 (
A point noted earlier bears repetition and expansion. It is critical, when custody specifications are set forth in orders or decrees, whether by stipulation of the parties or order of the court, that recognition and identification of each party’s support obligation also be set forth with specificity. Labels that may appear to express clearly the desires of the parties or the intentions of the court regarding custody may create, in the context of establishing child support, the emotional and financial adverse consequences for parties and children alike that are not only unacceptable, but intolerable as well.
The district court appropriately applied the offset guideline Sefkow formula to appellant’s current child-support obligation for J.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 See Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001) (addressing application of Hortis/Valento as guideline support modified by offset of percentage of time spent with each parent).
 Under Hortis/Valento, separate support obligations are set forth for each parent based on the periods of time that the other parent has physical custody of a child, and a net payment is determined by offsetting the two obligations against each other. Schlichting, 632 N.W.2d at 792.
An example of the conflation of the concepts of child support and child custody
is illustrated by appellant’s citation of Ayers v. Ayers, 508 N.W.2d 515 (