This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In re the Paternity of B.M.H.


Erin Shobe,

n/k/a Erin E. Leach, petitioner,





Matthew Hobbs,



Filed September 6, 2005


Hudson, Judge


Hennepin County District Court

File No. MF 279007


Michael D. Dittberner, Clugg, Linder, Dittberner & Remington, Ltd., 3205 West 76th Street, Edina, Minnesota 55435-5244 (for respondent)


Matthew R. Hobbs, 4114 Pennsylvania Avenue, Eagan, Minnesota 55123 (pro se appellant)


            Considered and decided by Dietzen, Presiding Judge; Stoneburner, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant argues that the district court abused its discretion by denying appellant’s motion to modify his child-support obligation.  Because the district court’s findings are supported by the record and appellant failed to satisfy the statutory criteria for modification, we affirm.


Appellant-father Matthew Hobbs and respondent-mother Erin Leach are the parents of 7-year-old B.H.  The parties were never married.  Father was adjudicated B.H.’s parent by judgment in September 1998 in Monroe County, Wisconsin

In March 2001, following mediation, the parties reached a stipulation regarding parenting time and financial support.  The stipulation states that the parties would share joint legal custody and have “shared parenting time,” without labeling the parents’ custody arrangement as either joint physical custody or sole physical custody with parenting time.  With respect to child support, the stipulation provides that “Father will pay to the Mother the amount of $450 per month including contribution to day care.  The agreed upon support is substantially in accord with guidelines.”  The stipulation does not indicate how the parties calculated the amount of $450 or what percentage of the amount represents father’s contribution to day-care expenses.  The Monroe County Circuit Court adopted the stipulation as the final order of the court in April 2001.  Both parties now reside in Minnesota.  Mother registered the order in Hennepin County in August 2002. 

In September 2003, father moved to modify child support, requesting: (1) a finding that the nature of the “shared” parenting time was consistent with joint physical custody; (2) a modification of child support under the Hortis/Valento formula for joint physical custody; and (3) a modification of child support based on father’s substantial student-loan debt and expenses.  In response, mother filed a motion in October requesting an increase in father’s child-support obligation. 

The child-support magistrate held a hearing on father’s motion on October 31, 2003.  The magistrate found that father’s motion was based in large part on his claim that “shared” parenting time in Wisconsin was the equivalent of joint physical custody.  Because the magistrate had no jurisdiction to make such a determination, the magistrate referred the matter to the district court. 

The parties continued to file additional documentation regarding father’s motion.  Father filed a responsive affidavit on December 4, 2003.  Mother filed an affidavit in response to father’s responsive affidavit.  Both parties also submitted letters directly to the court.

Following a hearing, the referee denied both parties’ motions by order dated March 10, 2004.  Because the referee neither authorized nor requested the parties to submit additional correspondence to the court, the referee refused to consider any filings after mother’s responsive affidavit in October 2003.  Father sought review of the referee’s order. 

In a July 7, 2004 order, the district court denied father’s notice of review and affirmed the referee’s order.  The district court concluded that the arrangement of shared parenting time under Wisconsin law is not the same as joint physical custody and characterized the parties’ custody arrangement as “Sole Physical Custody with liberal visitation.”  Because the district court did not find a joint-physical-custody arrangement, the court determined that a reduction in child support based on the Hortis/Valento formula would be inappropriate.  Moreover, the district court concluded that father had not met his burden of showing a substantial change in circumstances because his gross income had increased since the Wisconsin judgment established his support obligation.  With respect to the reduction of day-care expenses, the district court determined that there was an insufficient basis to reduce child support because the portion of father’s child support representing day-care expenses was not specified in the Wisconsin judgment.  This appeal follows.



            Father first challenges the referee’s decision to exclude his December 4, 2003 affidavit, arguing that the referee abused its discretion in refusing to admit the filing because (a) mother’s October 27 filing was untimely filed and did not contain a notice of time to respond and (b) father submitted his December 4 filing in response to new issues raised by mother’s October 27 pleading. 

A party responding to a motion must file with the district court, and serve on opposing counsel, a memorandum of law or supporting affidavit at least five days before a hearing on the motion.  Minn. R. Gen. Pract. 303.03(a)(3).  New issues raised in a motion by a responding party must be served on opposing counsel and filed with the court administrator at least ten days prior to the hearing. Minn. R. Gen. Pract. 303.03(a)(2).  If a party fails to comply with the rule, then "[t]he court, in its discretion, may refuse to permit oral argument by the party not filing the required documents, may consider the matter unopposed, . . . or may take other appropriate action." Minn. R. Gen. Pract. 303.03(b). 

            Here, the district court did not consider father’s December 4 filing because it did not solicit additional filings from the parties following the hearing on October 31, 2001.  The district court did not abuse its discretion.  Mother’s October 27 brief did not conform to the rules, but sanctions are discretionary with the district court, and father did not argue that the district court abused its discretion in considering mother’s brief.  To the extent that father’s excluded affidavit addressed mother’s response to his motion for modification, father’s affidavit was not filed within five days before the October 31 hearing and was therefore untimely.  To the extent that the excluded affidavit addressed mother’s motion to modify child support, the district court improperly denied father the opportunity to respond to a motion it considered on the merits.  Father has not been prejudiced, however, because the district court denied that motion, and father therefore prevailed.


            Father next challenges the district court’s finding of his net income.  A district court’s determination of an obligor’s income for child-support purposes is a finding of fact that will not be set aside if it has a reasonable basis in fact and is not clearly erroneous.  Minn. R. Civ. P. 52.01; State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999); see also Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating “[t]hat the record might support findings other than those made by the [district] court does not show that the court’s findings are defective”).  The district court found that father’s net income was $1,753 per month.  The district court’s calculation is based on a pay stub from a pay period ending August 30, 2003, that father attached to his affidavit supporting his motion to modify child support, which showed a net year-to-date income of $15,372.62. 

Father argues that the district court’s net-income finding is erroneous because the year-to-date totals reflected in father’s pay stubs are inflated by the inclusion of employee benefits—such as food and uniform allotments and “buddy passes”—that do not translate into a tangible source of income.  We disagree.  Because these in-kind disbursements to father contribute to payment of or reduce his living expenses, they can be considered when determining his income and ability to pay support.  Cf. Minn. Stat. § 518.551, subd. 5(b)(1) (2004) (noting “net income” for support purposes includes “in-kind payments received by the obligor in the course of employment” if those payments “reduce the obligor’s living expenses”); Minn. Stat. § 518.551, subd. 5(c)(1) (2004) (requiring district court to consider “all earnings, income and resources of the parents” when setting support).  Moreover, there is no evidence in the record to suggest that these employee benefits constituted a sufficiently significant portion of father’s income to render the district court’s finding clearly erroneous.  See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error).

            Father also argues that the district court’s method of calculating net income using figures from father’s pay stub contradicts the legislative intent of the guidelines because the withholding amounts do not accurately reflect his actual tax liability.  The guidelines state that standard deductions apply and recommend the use of tax tables when calculating income-tax liability for purposes of net income.  Minn. Stat. § 518.551, subd. 5(b) (2004). 

The record supports the district court’s finding on this issue.  While section 518.551, subdivision 5(b), recommends the use of tax tables, there is no requirement that they be used.  The section does require, however, a deduction for tax liability.  We do not recommend the use of withholding amounts in determining the deduction for tax liability, as withholding amounts may be subject to manipulation.  But, here, father did not provide to the magistrate his W-4 form or federal/state tax tables as evidence of his level of withholding.  Considering the limited evidence available to the district court, its net income finding is not clearly erroneous. 


            Father next challenges the district court’s characterization of the parties’ custody arrangement as sole physical custody with liberal parenting time.  A district court has broad discretion to provide for the custody of the parties’ children.  Durkin v. Hinich, 442 N.W.2d 148, 151 (Minn. 1989).  Appellate review of custody determinations is limited to determining whether the district court abused its discretion by making findings unsupported by the evidence or improperly applying the law.  Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). 

            The crux of this dispute is whether the Wisconsin judgment granting the parties “shared parenting time” in the form of shared physical placement of B.H. is the equivalent of a grant by a Minnesota court of joint physical custody.  Absent ambiguity in the judgment, it is not proper for a court to interpret a stipulated judgment.  Starr v. Starr, 312 Minn. 561, 562–63, 251 N.W.2d 341, 342 (1977).  Whether a judgment is ambiguous is a legal question reviewed de novo.  See Halverson v. Halverson, 381 N.W.2d 69, 71–72 (Minn. App. 1986) (holding that district court did not err in interpreting terms of ambiguous judgment). 

            Father first argues that the Wisconsin judgment unambiguously articulates a custody arrangement tantamount to joint physical custody in Minnesota.  In Wisconsin, physical placement is defined as “the condition under which a party has the right to have a child physically placed with that party and has the right and responsibility to make, during that placement, routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody.”  Wis. Stat. § 767.001(5) (2003–04).  Isolating the “right and responsibility” language of the Wisconsin statute, father contends that the Wisconsin judgment must have contemplated a joint-physical-custody arrangement because there is nothing in Minnesota law imposing the same fundamental duties on a noncustodial parent exercising parenting time. 

            Father’s argument fails to demonstrate that “shared physical placement” in Wisconsin is the unambiguous equivalent of joint physical custody in Minnesota.  The rights of a child’s physical caretaker under Wis. Stat. § 767.001(5) are explicitly subordinate to the rights of the child’s legal custodian.  In Wisconsin, a legal custodian has “the right and responsibility to make major decisions concerning the child, except with respect to specified decisions as set forth by the court or the parties in the final judgment or order.”  Wis. Stat. § 767.001(2)(a) (2003–04).  Thus, a legal custodian’s rights in Wisconsin are flexible and dependent on the judgment or order of that particular case.  In Minnesota, the scope of a legal custodian’s rights is largely dependent on the relevant statutes.  See Minn. Stat. § 518.003, subd. 3(a) (2004) (defining legal custody to mean “the right to determine the child’s upbringing, including education, health care, and religious training,” without qualification).  Accordingly, we conclude that the rights of a child’s physical custodian under a Wisconsin judgment are dependent on the terms of that judgment and not on the relevant statutes, as in Minnesota.  Father’s argument therefore fails because it is dependent on a faulty comparison between two incompatible statutory schemes.  The Wisconsin judgment is ambiguous with respect to the custody arrangement.

            What an ambiguous judgment provision means is a factual question.  Emerick ex rel. Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996).  Here, the district court determined that the Wisconsin judgment granted mother sole physical custody and granted father liberal parenting time.  This interpretation is supported by the record.  The Wisconsin judgment’s stipulated schedule of weekly time that B.H. is to spend with father is tantamount to a parenting-time schedule in Minnesota.  Although father spends considerable time with B.H. under his parenting-time schedule, the amount of actual time spent with the child is not a factor when determining whether a physical-custody award is sole or joint.  Nolte v. Mehrens, 648 N.W.2d 727, 730 n.3 (Minn. App. 2002).  Accordingly, the district court did not abuse its discretion by interpreting the ambiguous Wisconsin judgment or by characterizing the parties’ custody arrangement as sole physical custody with parenting time. 

            Father also argues that interpreting the Wisconsin judgment as establishing a sole-custody-with-parenting-time arrangement violates father’s “fundamental right to raise one’s child,” father’s right to equal protection, and father’s right to property.  There is no evidence in the record that these issues were presented to the district court.  Accordingly, the issues are deemed waived, and this court need not consider them.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting that an appellate court will not consider matters that were not argued and considered in the district court).   


            Father next challenges the district court’s determination that he failed to satisfy his burden of demonstrating substantially changed circumstances necessary to modify his child-support obligation.  Whether to modify support is discretionary with the district court.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  An abuse of discretion exists if the district court resolves the matter in a manner “that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

            Generally, a stipulation fixing the respective rights and obligations of the parties represents their voluntary acquiescence in an equitable settlement, and the district court should “carefully and only reluctantly” alter its terms.  See Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981) (discussing stipulated spousal maintenance).  But the existence of a stipulation does not “bar . . . later consideration of whether a change in circumstances warrants a modification.”  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  Where child support is concerned, Minnesota caselaw indicates that “[a]lthough a stipulation is one factor to be considered in modification motions, child support ‘relates to nonbargainable interests of children and is less subject to restraint by stipulation than are other dissolution matters.’”  Martin v. Martin, 401 N.W.2d 107, 110 (Minn. App. 1987) (quoting Maxson v. Derence, 384 N.W.2d 583, 585 (Minn. App. 1986)).

Minnesota statutes provide that a district court may modify a child-support order if two conditions are met: (1) the moving party shows a substantial change in circumstances; and (2) that this change makes the existing award unreasonable and unfair.  O’Donnell v. O’Donnell, 678 N.W.2d 471, 475 (Minn. App. 2004).  A change of circumstances includes: (1) a substantial increase or decrease in a party’s earnings or need; and (2) a substantial increase or decrease in existing work-related or education-related child-care expenses.  Minn. Stat. § 518.64, subd. 2(a) (2004).  Minnesota statutes presume that there has been a substantial change in circumstances and rebuttably presume that an existing support order is unreasonable if “the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.”  Id., subd. 2(b)(1) (2004). 

Father first argues that the district court erred by failing to make sufficient findings on the statutory factors.  “While the record may support a trial court’s decision, it is nevertheless inadequate if that record fails to reveal that the trial court actually considered the appropriate factors.”  Moylan, 384 N.W.2d at 865.  The district court made findings with respect to father’s net income and calculated father’s child-support obligation under the guidelines.  The district court adopted the referee’s finding that father “has not met the criteria in Minn. Stat. § 518.551, Subd. 5(d), required for having his personal debts taken into account in determining his net income” because father’s standard of living had increased along with his cost of living, and father had not alleged that the increase in his cost of living was due to unforeseen or involuntary causes.  Accordingly, the district court did not make a calculation of father’s current expenses.  Father did not allege any other change in circumstances (i.e., increased needs of the child, receipt of public assistance, extraordinary medical expenses) that would necessitate additional findings.  It is clear from the findings that the district court considered the appropriate statutory factors. 

Father next argues that the elimination of B.H.’s day-care expenses constitutes a substantial change in circumstances sufficient to support modification.  We disagree.  The Wisconsin judgment required a combined child-support and child-care obligation of $450 per month.  In Minnesota, the calculation of a guideline child-support obligation is based solely on father’s net income and the number of children; a contribution for child care is not included under the guidelines in Minn. Stat. § 518.551, subd. 5(c).  In Minnesota, father’s child-support obligation under the guidelines would be $438 ($1,753 x .25) without any contribution for child-care costs—$12 less than his combined obligation in WisconsinSee Minn. Stat. § 518.551, subd. 5(b).  It was within the district court’s discretion to deem the $12 difference insubstantial and deny father’s motion to modify. 

Finally, father argues that the district court erred by mechanically applying the guidelines to father’s net income without considering the amount of parenting time father has with B.H.  According to father, his parenting time exceeds the amount of time contemplated in a traditional sole-custodial arrangement, and, therefore, consideration should be given to the amount of parenting time “when establishing a support obligation.”  Father misconstrues the nature of his motion—a motion to modify an already-existing support obligation.  Unless father demonstrates a substantial change in circumstances that renders the current support obligation unreasonable and unfair, father’s parenting-time schedule is not relevant to the district court’s decision whether to modify support. 


Father argues that the district court erred by “using as its basis to deny modification a current support amount that invalidly deviated from the guidelines, and therefore, cannot be determined to be either reasonable or fair in the first instance.”  Father’s argument is meritless.  The Wisconsin judgment followed a stipulation in which both parties agreed that the $450 per month support obligation was reasonable, even though the stipulated amount deviated from the guidelines.  See Claybaugh, 312 N.W.2d at 449 (noting that a trial court reviewing the original stipulation/judgment should “view it as an important element because it represents the parties’ voluntary acquiescence in an equitable settlement”). 


Father next contends the district court abused its discretion by not applying the Hortis/Valento child-support formula.  Use of the Hortis/Valento formula when one parent has sole physical custody is a deviation from the child-support guidelines and must be supported by findings on the statutory factors enumerated in Minn. Stat. § 518.551, subds. 5(c), (i) (2004).  Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001).  When parents have joint physical custody, however, the Hortis/Valento formula is the presumptively appropriate method for setting support.  Schlichting v. Paulus, 632 N.W.2d 790, 792–93 (Minn. App. 2001).  Here, following a finding by the district court that mother had sole physical custody of B.H., the district court did not apply the Hortis/Valento formula.  Because the Hortis/Valento formula is not part of the guidelines in a case of sole physical custody, the district court did not abuse its discretion by not applying the formula.  See id. at 793 (“[T]he [Hortis/Valento] formula treats each parent as a child-support ‘obligor’ and the legislature’s 1998 amendment to the definition of ‘obligor’ presumptively excluded a parent with sole physical custody.”).


            Finally, father argues that the district court (1) abused its discretion by refusing to consider father’s student-loan debts when calculating his net income and (2) erred by assuming jurisdiction over the Wisconsin judgment under the Uniform Interstate Family Support Act (UIFSA), Minn. Stat. §§ 518C.101–.902 (2004).  With respect to his student loan debt, father concedes in his brief that he did not present this information to the referee in the proper form.  Accordingly, the issue is deemed waived, and this court need not consider it here.  See Thiele v. Stich, 425 N.W.2d at 582 (noting that an appellate court will not consider matters that were not argued and considered in the district court).  And, under the UIFSA, a Minnesota court can assume jurisdiction to modify a foreign (Wisconsin) order if both parents are residents of Minnesota and the child does not live in the foreign jurisdiction.  Minn. Stat. § 518C.613(a) (2004).  Here, both parties and B.H. now reside in Minnesota.  Accordingly, the district court did not err by assuming jurisdiction.