This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
In re the Marriage of:
Eric Thomas Amundson, petitioner,
Rachel Louise Amundson,
Affirmed in part, reversed in part, and remanded
Chisago County District Court
File No. 13-F5-00-001363
John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN† 55101 (for appellant)
Barbara J. May,
††††††††††† Considered and decided by Klaphake, Presiding Judge; Kalitowski, Judge; and Wright, Judge.
U N P U B L I S H E D† O P I N I O N
Appellant-father challenges the district courtís decision denying appellantís request for sole physical custody of the partiesí children and setting appellantís child-support obligation at the guidelines amount.† Appellant argues that the district court erred when it (1) determined that the partiesí extrajudicial agreement was breached and abandoned; (2) did not require the parties to participate in dispute resolution; (3) overstated appellantís income; and (4) denied appellantís motion to modify custody without an evidentiary hearing.† Because the district court erred in its calculation of appellantís monthly net income for child-support purposes and failed to make express findings regarding health-insurance coverage for the children as required by Minn. Stat. ß 518.171, subd. 1(a) (2004), we reverse and remand on these issues.† As to the other issues raised in this appeal, we affirm.
The district court entered a judgment and decree dissolving the marriage of appellant-father Eric Amundson and respondent-mother Rachel Amundson on December 4, 2000.† In the judgment and decree, the district court granted the parties joint legal custody of their two children.† Mother was granted sole physical custody of the children and ordered to pay for the childrenís health insurance.† The district court ordered father to pay monthly child support of $500.† In August 2001, father began to pay for health-insurance coverage of the children through his employment.
††††††††††† The parties entered into a written extrajudicial agreement on April 8, 2002, which modified the partiesí court-ordered obligations.† The agreement modified motherís sole physical custody of the children to joint physical custody and established a weekly rotating schedule in which ďeach party will have the children three days one week and four days the next.Ē† Under the agreement, father would cease paying child support on May 31, 2002.† The parties were not represented by counsel when they entered the agreement, and the extrajudicial agreement was never affirmed by the district court.†
††††††††††† The children lived with father on a full-time basis from July 2002 to April 2003.† But in April 2003, the children began to live with mother full-time.† The parties informally agreed that father would not pay child support from April 2003 to January 2004 to compensate father for expenses he incurred while the children lived with him full-time.†
††††††††††† On October 21, 2005, mother moved to modify the December 2000 judgment and decree, seeking an increase in fatherís monthly child-support obligation to the guidelines amount, an award of both dependency tax exemptions, an order requiring father to pay one-half of the childrenís medical and dental expenses, and a judgment against father for $1,380 in unpaid child support. †In response, father moved to dismiss motherís motion, award father sole physical custody of the children, and order the parties to participate in mediation.
After a hearing on the motions, the district court issued an order dated January 18, 2006, in which it set fatherís monthly child-support obligation at $864.57, ordered father to pay $1,380 in arrearages, granted mother the right to claim both children as exemptions for tax purposes, and reaffirmed the judgment and decreeís provision granting mother sole physical custody of the children.† This appeal followed.
D E C I S I O N
The district court has broad
discretion in deciding whether to modify child support, Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002), and child custody, Silbaugh v. Silbaugh, 543 N.W.2d 639,
641 (Minn. 1996).† We review a decision
on these matters to determine whether the district court abused its discretion
by making factual findings unsupported by the evidence or by misapplying the
v. Pikula, 374 N.W.2d 705, 710 (
††††††††††† Father contends that the district court abused its
discretion when it determined that the April 2002 extrajudicial agreement, which
modified motherís sole physical custody to joint physical custody with the
children spending four nights a week with each parent every other week and
terminated fatherís child-support obligation, was breached and abandoned.† Minnesota courts have approved extrajudicial
modification of an existing judgment and decree through stipulated agreement.† See
Kielley v. Kielley, 674 N.W.2d 770, 774-75 (Minn. App. 2004) (recognizing
Minnesota Supreme Courtís endorsement of stipulated arguments); see also Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997) (stating policy
favoring use of stipulations in dissolution proceedings).† But these stipulations are given considerably
less weight when the agreement involves children.† Kielley,
674 N.W.2d at 776; see Frauenshuh v.
Giese, 599 N.W.2d 153, 158-59 (
††††††††††† The enforceability of an extrajudicial agreement depends on
whether the agreement is both contractually sound and otherwise fair and
reasonable.† Kielley, 674 N.W.2d at 777-78.†
To be contractually sound, the extrajudicial agreement must be supported
††††††††††† Consideration is ďĎa benefit accruing to a party or a
detriment suffered by another party.íĒ† Id. (quoting C & D Invs. v. Beaudoin, 364 N.W.2d 850, 853 (Minn. App. 1985),
review denied (Minn. June 14, 1985)).† The amount of consideration is not relevant
to a determination of an agreementís enforceability.†
The district court concluded that the extrajudicial agreement was supported by consideration.† The agreement provided that father would cease child-support payments in exchange for changing motherís sole physical custody to joint physical custody with father.† These mutual, concurrent promises suffice as consideration.
Also, to be enforceable, an extrajudicial
agreement must not be unfair or unreasonable to (1) the children by causing an
adverse impact on them; (2) one of the parties as a result of overreaching, a
lack of disclosure, or lack of opportunity to consult with counsel; (3) the
state by causing one or both parties to seek public assistance; and (4) the
district court by unnecessarily complicating future court proceedings.† Kielley,
674 N.W.2dat 778-79.† In determining the enforceability of an
extrajudicial agreement, the district court may accept or reject the terms of
the agreement in whole or in part.†
The district court concluded
that, because father breached and abandoned the extrajudicial agreement, it was
unnecessary to address whether the agreement was fair and reasonable.† A breach occurs when one party fails to
perform without legal justification a substantial part of the agreement or contract.
of Reidel by Mirick v. Life Care Ret. Cmtys., Inc., 505 N.W.2d 78, 81 (
††††††††††† Father initially complied with the terms of the extrajudicial agreement.† He ceased his child-support payments on May 31, 2002.† But the children moved in with father on a full-time basis in July 2002, which was contrary to the extrajudicial agreement.† In April 2003, following an altercation between father and the partiesí older child, the children began to live with mother full-time.† The parties informally agreed that father would not be required to pay child support from April 2003 to January 2004 to compensate father for expenses incurred while the children lived with him full-time.†
Father argues that the childrenís return to residing with mother is not inconsistent with the joint physical custody set forth in the extrajudicial agreement.† When viewed in its entirety, however, the record supports the district courtís finding that the extrajudicial agreement was breached or abandoned.† Contrary to the terms of the extrajudicial agreement, father resumed paying child support and acknowledges that he and mother never shared a 50/50 parenting-time schedule as set forth in the agreement.† Father estimates that he exercised parenting time 40 percent of the time in 2004 and every other weekend in 2005.†
More than three and one-half years have passed since either party has complied with the terms of the extrajudicial agreement.† With the exception of nine months beginning in July 2002 and ending in April 2003, the custody arrangement has been consistent with that of the December 2000 judgment and decree.† Because the actions of the parties establish clear and convincing evidence of the partiesí intention to abandon their rights under the extrajudicial agreement, the district court did not err by concluding that the extrajudicial agreement was breached and abandoned and, therefore, unenforceable.
††††††††††† Father argues that the district court erred by failing to require the parties to submit to dispute resolution as required by the judgment and decree, which provides in pertinent part:
The parties are granted joint legal custody of the said minor children of the parties.† In the event the parties are unable to agree and cooperate to resolve major decisions regarding their childrenís lives, they shall attempt to resolve such disputes by seeking the services of a mutually agreeable neutral third party.
ď[J]oint legal custody means that both parents have equal rights and responsibilities including the right to participate in major decisions determining the childís upbringing, including education, health care, and religious training.Ē† Minn. Stat. ß 518.003, subd. 3(a) (2000).†
Because the joint legal-custody provision in the judgment and decree mirrors the operative statutory definition of joint legal custody in effect at that time, and because the dispute-resolution provision is in the paragraph addressing joint legal custody, it is evident that this language is applicable to questions of joint legal custody.† At issue here are issues of child support and physical custody.† As such, the judgment and decreeís dispute resolution requirement for disputes regarding joint legal custody is inapplicable.
††††††††††† Father next contends that the district court erred by setting
fatherís monthly child-support obligation at $864.57.† A child-support
order may be modified on a showing of substantially increased or decreased earnings
of a party that make the original order unreasonable and unfair.† Minn. Stat. ß 518.64, subd. 2(a)(1) (2004); Erickson v. Erickson, 385 N.W.2d 301,
(i) Federal Income Tax
(ii) State Income Tax
(iii) Social Security Deductions
(iv) Reasonable Pension Deductions
(v) Union Dues
(vi) Cost of Dependent Health Insurance Coverage
(vii) Cost of Individual or Group Health/Hospitalization Coverage or an Amount for Actual Medical Expenses [and]
(viii) A Child Support or Maintenance Order that is Currently Being Paid.
††††††††††† Father argues that his child-support obligation is based on clearly erroneous factual findings.† We agree.† A review of the record establishes that the district courtís calculation of fatherís monthly net income contained mathematical errors and treated the childrenís dependency tax exemptions inconsistently.† The district court also did not make express findings as to the childrenís health insurance, and it relied on erroneous calculations to determine the amount of fatherís arrearages.
The district court concluded that fatherís monthly net income has increased substantially since the judgment and decree.† The district court calculated an increase from $1,650 to $2,881.91, and set fatherís monthly child-support obligation at $864.57 based on the child-support guidelines.†In doing so, the district court adopted motherís calculation of fatherís monthly net income of $2,881.91 and net year-to-date income at $30,495.09, both of which mother derived from fatherís November 2005 pay stub.† Fatherís pay stub indicated a year-to-date gross income of $39,598.93 and deductions of $727.67 for federal income tax withholdings, $446.44 for state income tax withholdings, $2,850.51 for social security, $366.60 for union dues, $1,457.28 for health insurance, and $2,252.74 for retirement contributions. †Subtracting these deductions from fatherís gross income equals $31,497.69, not $30,495.09.† Because the district courtís determination of fatherís monthly net income was based on a miscalculation, the district courtís determination of fatherís monthly child-support obligation is clearly erroneous.
court also treated the childrenís dependency tax exemptions in an inconsistent
manner.† The district court awarded both dependency tax exemptions
to mother, as the custodial parent.† See State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 472 (
We are unable to reconcile the district courtís findings with the evidence relating to fatherís monthly net income.† Because fatherís child-support obligation must be based on an accurate calculation of his monthly net income, we remand for a determination of fatherís monthly net income as defined by Minn. Stat. ß 518.551, subd. 5(b), supported by findings as to each element of the calculation.†
In her motion and supporting
affidavit, mother sought an order requiring father to continue to maintain
health insurance for the children and to pay one-half of the childrenís
medical, dental, visual, and orthodontia expenses.† Father argues that, because the district
court did not make express findings regarding the childrenís health insurance,
mother should provide health-insurance coverage for the children as required
under the judgment and decree. †Every
child-support order must ďexpressly assign or reserve the responsibilityĒ for
maintaining health insurance for minor children.† Minn. Stat. ß 518.171, subd. 1(a)(1)
(2004).† The district court must order
the party with the better dependent health-insurance coverage available on a
group basis or through an employer or union to name the minor children as
Father has been providing the childrenís health insurance through his employer since August 2001, and he has provided the district court with his employerís group insurance information.† Although the district court deducted health insurance in its calculation of fatherís monthly net income, it did not expressly find that father should continue to provide the childrenís health insurance or otherwise revise motherís obligation to do so under the judgment and decree.† Nor did the district court find that father has better dependent health-insurance coverage than mother as required by Minn. Stat. ß 518.171, subd. 1(a)(2).† We, therefore, remand this issue to the district court with instructions to make findings addressing the responsibility for the childrenís health-insurance coverage as required by Minn. Stat. ß 518.171, subd. 1(a), and to account for this determination in the recalculation of fatherís monthly net income for child-support purposes.†
Father also argues that the
district court erroneously relied on misstated and miscalculated information to
find that father owes mother $1,380 in unpaid child support.† An arrearage is money overdue and
arrearages must be based on his monthly net income.† Minn. Stat. ß 518.551,
subd. 1 (Supp. 2005).† Fatherís
net income is his total monthly income after
deducting, among other expenses, the childrenís health-insurance costs. †
††††††††††† Father also argues that the district
court abused its discretion by denying his motion to modify custody without an
evidentiary hearing.† When we review a
district courtís decision to deny a custody-modification motion without an
evidentiary hearing, we apply an abuse-of-discretion standard.† In re
Weber, 653 N.W.2d 804, 809 (
††††††††††† A party seeking custody modification
must submit an affidavit in support of the motion. †
Father argues that the extrajudicial agreement changed the custody arrangement and the children were integrated into his home.† While it is undisputed that the children lived with father from July 2002 to April 2003, his motion and supporting affidavit fail to address the fact that the children moved back in with mother on a full-time basis beginning in April 2003 and have continued to live with her since that time. †Thus, the district court correctly characterizes the childrenís time with father as no more ďthan a temporary change in the pattern of caretaking.Ē† Even if the children were integrated into fatherís home from July 2002 to April 2003, when fatherís modification motion was filed, the children were reintegrated into motherís home, having resumed living with her more than two-and-one-half years ago.† Cf. Peterson v. Peterson, 365 N.W.2d 315, 318 (Minn. App. 1985) (finding, after an evidentiary hearing, that no integration occurred where child lived with noncustodial father less than two years and living arrangement abruptly ended five months before fatherís modification motion), review denied (Minn. June 14, 1985).† Thus, the district courtís exercise of discretion on this issue was sound.††††
In summary, we affirm the district courtís conclusions that the extrajudicial agreement was breached and abandoned, that the parties were not required to mediate issues of physical custody and child support, and that father was not entitled to an evidentiary hearing on his motion to modify physical custody.† But because the district court clearly erred in its calculation of fatherís monthly net income for purposes of child support and failed to make express findings regarding the responsibility for the childrenís health-insurance coverage as required by Minn. Stat. ß 518.171, subd. 1(a), we reverse and remand for further consideration of these matters.
Affirmed in part, reversed in part, and remanded.
 In her supporting affidavit, mother also sought an order requiring father to continue to provide health-insurance coverage for the children.
 When the obligorís monthly net income is between $1,001 and $6,975 and two children require support, the obligorís guidelines child-support obligation is 30 percent of the monthly net income.†† Minn. Stat. ß 518.551, subd. 5(b), (k) (2004); Cost of Living Adjustment to Child Support Guidelines, No. C9-85-1134 (Minn. Mar. 11, 2004) (order).
 Father also argues that the district court erred because it used federal and state income‑tax‑deduction amounts from fatherís 2005 pay stubs provided in motherís affidavit, rather than the tax tables.† Minn. Stat. ß 518.551, subd. 5(b), recommends, but does not require, using standard deductions and the tax tables to determine federal and state income-tax deductions when calculating monthly net income for child-support purposes.† The district courtís rationale for deviating from the statutorily recommended tax tables to calculate fatherís monthly tax deductions is not included in the order.† On remand, the district court may choose to reconsider its method for calculating fatherís tax deductions, but it is not required to do so.†