This opinion will be unpublished and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
In re the Matter of:
Craig Adam Cohen,
Lora Elizabeth Vokaty,
Filed January 31, 2006
Ramsey County District Court
File No. F9-04-50047
John M. Jerabek, Jade Johnson, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402 (for appellant)
Elizabeth J. Richards, Pierce
Richards Law Office,
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant-father challenges the award of child support and attorney fees to respondent-mother. Because the district court’s findings regarding the parties’ incomes are clearly erroneous, we reverse and remand.
Appellant-father Craig Cohen and respondent-mother Lora Vokaty have one minor child born out of wedlock. In January 2004, Cohen filed a complaint requesting child support from Vokaty and sole legal and physical custody of the child. The parties stipulated to temporary parenting time, temporary monthly child support for Vokaty, and miscellaneous expenses to be paid by Cohen. In October 2004, Cohen moved for a determination of permanent custody, parenting time, and permanent child support using the Hortis/Valento formula. At the hearing on Cohen’s motion, the parties stipulated to joint legal and physical custody, with the child spending nine of every 14 days with Cohen and the remaining five days with Vokaty. The district court issued an order reflecting the parties’ stipulation, applied the Hortis/Valento formula, and ordered Cohen to pay $871.86 per month in child support and $3,680 for Vokaty’s attorney fees. This appeal followed.
Cohen contends that the
district court erred in its calculation of the parties’ incomes and therefore
in its determination of Cohen’s child-support obligation. A district court’s finding of net income will be
affirmed on appeal if the finding has a reasonable basis in fact and is not
clearly erroneous. State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (
Cohen first challenges the calculation of his income. The district court found that Cohen’s net monthly wage income was $2,757. But the district court also found that Cohen received regular gift income of $2,000 per month and unlimited use of a credit card from his father. Cohen argues that the district court erred by including as income money he received from his father. “[I]f a gift is regularly received from a dependable source, it may properly be used to determine the amount of a child support obligation.” Barnier v. Wells, 476 N.W.2d 795, 797 (Minn. App. 1991.) The record supports the district court’s finding that Cohen receives regular gift income from his father. Cohen’s father stated in an affidavit that (1) he has “provided approximately $2,000 per month for [Cohen’s] expenses”; (2) he allowed Cohen to use his credit card in 2004 to pay “extraordinary expenses”; and (3) he paid Cohen’s attorney fees in this case and for a private custody evaluation.
district court also found that Cohen has “regular income from family
businesses/trusts” and that these “financial resources” support an “assumption
of the statutory maximum [income] of $6,975 a month.” Cohen argues that the district court did not
make an “explicit finding that [he] actually received any income from his
trust, or that the trust could be accessed.”
An assumption is not a finding of the amount that Cohen receives from
family businesses and the trust, and the
absence of a finding makes effective appellate review difficult and unnecessarily
complicates future modification motions.
See Minn. Stat. § 518.64,
subd. 2(a) (2004) (providing the bases on which support orders may be modified);
Maschoff v. Leiding, 696 N.W.2d 834,
The district court made a finding that Cohen “has substantial financial resources,” including a trust of which he is the beneficiary and interests in two businesses. The district court also found that the value of one of the businesses was between $815,000 and $1.4 million. But the district court did not make a finding of the actual amount of income Cohen received from these resources. While the record supports the finding that Cohen received nonwage income between 2000 and 2002, the district court clearly erred by making an assumption rather than making a finding regarding the amount of income Cohen receives from “family businesses/trusts,” and on remand the district court must make such a finding.
Cohen next challenges the district
court’s determination that Vokaty had no monthly income for child-support
purposes. He first disputes the district court’s finding that Vokaty’s
“educational loans and grants are all consumed for tuition and books” and
argues that she received $1,149 per semester in excess of her tuition and
books. Student-loan money in excess of
educational expenses is considered income to the recipient for child-support
purposes. Gilbertson v. Graff, 477 N.W.2d 771, 774 (
Cohen also challenges the district court’s finding that Vokaty’s monthly social-security benefits are not income. “Income” includes “disability payments.” Minn. Stat. § 518.54, subd. 6 (2004). But benefits received under Title IV-A of the Social Security Act, which provides assistance to needy families with children, are not income. See Minn. Stat. § 518.54, subd. 6; 42 U.S.C. § 601(a)(1) (2000). In the proceedings before the district court, Vokaty described the social-security payments that she receives as “social security disability.” In her brief on appeal, she describes the payments as “social security income” and a “social security grant.” Because the record does not show whether Vokaty receives social-security disability benefits or benefits under Title IV-A of the Social Security Act, the district court’s finding that the benefits are not income is not supported by the record. On remand, the district court must determine the nature of the social-security benefits that Vokaty receives, thereby determining whether they are income.
Cohen next argues that the
district court erred in its application of the Hortis/Valento formula by using an incorrect parenting-time ratio. “Application of the Hortis/Valento formula to
cases of joint physical custody is an application of the guidelines.” Schlichting
v. Paulus, 632 N.W.2d 790,792
The district court ruled
that “[a]pplication of the Hortis-Valento formula has a 50% reduction due to
the time the minor child is in [Cohen’s] care.”
But under the district court’s custody order, the child actually spends
nine of every 14 days, or 64% of the child’s time, with Cohen, meaning that
Cohen’s presumptively correct support obligation is 36% of the normal monthly
guideline amount and that his presumptively correct net support payment is,
therefore, 36% offset by Vokaty’s support obligation. See
Maschoff, 696 N.W.2d at 837 (describing application of Hortis/Valento formula).
When, as here, a district court orders support that is a deviation from the
guidelines, it “shall make written findings giving the amount of support
calculated under the guidelines, the reasons for the deviation, and shall
specifically address the criteria in [Minn. Stat. § 518.551, subd. 5(c)]
and how the deviation serves the best interest of the child.”
Cohen argues that the district court erred by awarding need-based attorney fees
to Vokaty. An award of attorney fees
rests within the discretion of the district court and will not be reversed
absent a clear abuse of that discretion.
Jensen v. Jensen, 409 N.W.2d
60, 63 (
first contends that Vokaty’s attorney failed to include “a specific bill with
her attorney fee affidavit.” When an
attorney seeks fees of $1,000 or more, an application must be made by motion
and accompanied by an affidavit from the attorney describing each item of work
performed, the time spent on each item of work, and the hourly rate for the
work performed. Minn. R. Gen. Pract.
119.01-.02. “This rule is not intended
to limit the court’s discretion, but is intended to encourage streamlined
handling of fee applications.” Gully v. Gully, 599 N.W.2d 814, 826 (
also argues that he does not have the means to pay the attorney fees and that
Vokaty should be responsible for her own attorney fees. The district court shall award attorney fees
when (1) the fees are necessary for the good-faith assertion of the requesting
party’s rights and will not contribute to unnecessary delay and expense; (2) the
party from whom fees are sought has the means to pay them; and (3) the
requesting party does not have the means to pay them.
The district court may, in its sole discretion, reopen the record on remand.
Reversed and remanded.