This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of:
Holly Lynn Benda ReMine, petitioner,


Gary Craig ReMine,


County of Olmsted, intervenor,


Filed January 9, 2007


Wright, Judge


Olmsted County District Court

File No. F7-01-2722


Gail D. Baker, Baker Law Offices, 1530 Greenview Drive Southwest, Suite 210, Rochester, MN  55902 (for appellant)


Gary C. ReMine, 101 East Center Street, #4, Rochester, MN  55904 (pro se respondent)


Christina Stevens, Special Assistant County Attorney, P.O. Box 549, Rochester, MN  55903 (for intervenor)


            Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N




In this child-support-modification dispute in which respondent-father’s child-support obligation was set below the guidelines amount, appellant-mother argues that the child-support magistrate (CSM) clearly erred by understating respondent-father’s net income, understating appellant-mother’s expenses, and ordering appellant-mother  to provide the children’s medical and dental insurance.  We affirm.



The marriage of appellant-mother Holly Busby[1] and respondent-father Gary ReMine dissolved on October 25, 2001.  At the time of the dissolution, the parties had twin sons born in June 1994.  The district court awarded the parties joint legal custody of the children and awarded Busby physical custody.  ReMine’s original monthly child‑support obligation was set at $620.  On October 19, 2005, Busby moved to modify ReMine’s monthly child-support obligation, which at that time was $669 as a result of cost-of-living adjustments. 

            When the modification motion was filed, Busby earned a monthly net income of $3,010, and ReMine earned a monthly net income of $3,228.  ReMine had experienced an increase in his monthly net income from the date of the dissolution that was partly attributable to the elimination of his child-support obligation for a prior-born child who became emancipated. 

            Because of the condition of ReMine’s rental housing, Busby did not permit the children to have overnight visits.  ReMine expressed his desire to do so and thereby increase his visitation.  But he indicated that he had been unable to find suitable housing while satisfying his child-support obligations for the children at issue here and for his prior-born child.

            The CSM concluded that the monthly expenses for the children at issue here is $1,485.60.  Based on her determination that ReMine’s net monthly income had increased substantially since the original child-support determination, the CSM modified ReMine’s monthly obligation from $669 to $750, a deviation from the monthly guidelines amount of $968.  Because Busby already carried family medical and dental insurance through her employment for her spouse and prior-born child and this insurance also could cover the children at no additional cost, the CSM ordered Busby to cover the children under her medical and dental insurance and ordered Busby and ReMine to share equally any uninsured medical and dental expenses.  The CSM concluded that deviation from the guidelines was in the best interests of the children because it allows ReMine to provide increased child support for them while enabling him to meet his expenses and improve his housing situation.  This appeal followed. 



A party can appeal a CSM’s decision directly to this court without first moving for district court review.  Minn. R. Gen. Pract. 378.01.  Because Busby did not seek district court review, the scope of our review of the CSM’s decision is limited to whether the evidence supports the findings of fact and whether those findings of fact support the conclusions of law and judgment.  Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001).[2]  We nevertheless apply the same standard of review as applied on appeal from the district court’s child-support determination.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  A district court’s factual findings will not be disturbed absent clear error.  Minn. R. Civ. P. 52.01.  A finding is “clearly erroneous” if, on review, we are “left with the definite and firm conviction that a mistake has been made.” Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (quotation omitted).  When reviewing the findings for clear error, we consider the record in the light most favorable to the findings and defer to the fact-finder’s credibility determinations.  Id.  A finding is not clearly erroneous simply because there is also evidence in the record to support a finding other than that made by the CSM or the district court. 474.

            A child-support obligation may be modified on a showing of a substantial increase in the income of a party that makes the original obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a)(1) (2004); Erickson v. Erickson, 385 N.W.2d 301, 303 (Minn. 1986).  The child-support guidelines are presumptively applicable in every child‑support case.  Minn. Stat. § 518.551, subd. 5(i) (2004).  “If the court deviates from the guidelines, the court 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 paragraph (c) and how the deviation serves the best interest of the child.”  Id.  In addition to the child-support guidelines, the court shall consider:

            (1) all earnings, income, and resources of the parents, including real and personal property . . . ;

            (2) the financial needs and resources, physical and emotional condition, and educational needs of the . . . children;

            (3) the standard of living the children would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households;

            (4) which parent receives the income taxation dependency exemption and what financial benefit the parent receives from it;

            (5) the parents’ debts [reasonably incurred for support of the child]; and

            (6) the obligor’s receipt of public assistance under the AFDC program . . . .


Id., subd. 5(c) (2004).

            Under the child-support guidelines, the obligor’s monthly net income is multiplied by the specified percentage to calculate the child-support obligation.  Id., subd. 5(b) (2004).  An obligor’s monthly net income is determined by deducting the following from the obligor’s monthly gross income:

(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.

Id. The net-income determination should be current.  Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989).  The decision to accept or reject evidence of an obligor’s monthly net income rests within the district court’s sound discretion.  See Nelson v. Nelson, 291 Minn. 496, 497, 189 N.W.2d 413, 415 (1971) (evidentiary weight and witness credibility are province of fact-finder).             

The CSM determined that modification was appropriate because ReMine’s net income increased substantially when his other child-support obligation ceased.  Based on its determination that ReMine’s monthly net income was $3,228, the CSM determined that ReMine’s presumptive monthly child-support obligation was $968,[3] but ordered a monthly child-support obligation of $750.  Busby argues that the CSM erred by understating ReMine’s net income and ability to pay, understating Busby’s expenses, and requiring Busby to provide medical and dental insurance for the children. 


            Busby asserts that the CSM’s determination of ReMine’s monthly net income was clearly erroneous because the CSM did not consider that (1) ReMine provided his 2003, rather than 2004, tax returns; (2) ReMine currently works as a full-time county attorney and has two part-time jobs—teaching at a vocational and technical college and working at a department store; and (3) ReMine’s 2003 tax refund is a component of his monthly net-income determination.     

The CSM determined ReMine’s monthly net income to be $3,228.  Our review of the record establishes that this finding is not clearly erroneous.  Although ReMine submitted his 2003, rather than 2004, federal and state tax returns as evidence, the CSM had additional evidence of ReMine’s current income, including his December 2005 pay stub from Dodge County and a modified financial statement dated January 2006. 

Wage reports in the record demonstrate that ReMine’s income from his department‑store position equaled $892 for the first quarter of 2005 and $459.95 for the second quarter.  There was no evidence of 2005 income from the teaching position, and ReMine stated that he no longer held the teaching or sales positions.  This evidence supports the CSM’s monthly net-income determination.      

Busby also argues that ReMine’s 2003 tax refunds should be added to his current monthly net-income calculation.  This argument is unavailing.  The CSM properly calculated the monthly net income for 2006 by using the financial evidence in the record and the deductions prescribed under Minn. Stat. § 518.551, subd. 5(b). 



            Busby also asserts that, by deviating from the child-support guidelines, the CSM did not give appropriate weight to the factors under Minn. Stat. § 518.551, subd. 5(c).  Busby contends that ReMine understated his financial resources by failing to disclose the value of his car and pension, which the CSM should have considered before deviating from the guidelines.  Busby also argues that the CSM gave undue weight to ReMine’s needs.  But the determinations of evidentiary weight and witness credibility are the exclusive province of the CSM, Vangsness, 607 N.W.2d at 472, and we cannot assume that the CSM erred in this evaluation, Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999).  Moreover, the record reflects that the CSM, weighing the factors set forth in Minn. Stat. § 518.551, subd. 5(c), made determinations in favor of both ReMine and Busby.  For Busby, the CSM allowed expenses of $177 per month for music lessons and other activities based solely on Busby’s testimony.  And despite expressing concerns about allocating Busby’s entire mortgage payment among the adults and children in the household, the CSM allowed these expenses.  

The CSM concluded that a downward deviation from the guidelines would be in the best interests of the children because it allows ReMine to provide increased child support while still meeting his monthly expenses and because it may allow ReMine to obtain housing acceptable to Busby to permit overnight visitation with the children. 

The CSM also determined that, at this child-support level, ReMine nevertheless was paying half of the children’s expenses while in Busby’s care.  Busby has not identified any of the children’s needs that are unmet as a result of the deviation.  Indeed, as the CSM observed, the deviation allows “the parties, who have similar incomes, to each be responsible for approximately 50 percent of the children’s expenses.”  The CSM’s exercise of discretion was sound.


Finally, Busby’s challenge to the CSM’s medical and dental insurance determination also is without merit.  The CSM ordered Busby to continue medical and dental insurance coverage for the children and ordered Busby and ReMine to divide equally any uninsured medical and dental expenses.  Through her employment, Busby carries family medical and dental insurance, which covers her spouse and a prior-born child.  The children who are the subject of this child-support dispute are covered at no additional cost.  

            Finding no error in the CSM’s decision to modify ReMine’s monthly child‑support obligation from $669 to $750 per month, we affirm. 


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Since the dissolution, appellant-mother has remarried and changed her last name from ReMine to Busby.

[2] The parties do not argue, and we do not address, what impact, if any, the Minnesota Supreme Court’s discussion of the scope of review in Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 644 N.W.2d 303 (Minn. 2003), might have in this case.

[3] When the obligor’s monthly net income is $1001 to $6,975 and two children require support, the obligor’s guidelines child-support obligation is 30 percent of the monthly net income.   Minn. Stat. § 518.551, subd. 5(b), (k) (2004); Cost of Living Adjustment to Child Support Guidelines, No. C9-85-1134 (Minn. Mar. 11, 2004) (order).