This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-95-2618

In re the Marriage of:

Lori Ann Rohricht, petitioner,

Respondent,

vs.

Michael Edward Rohricht,

Appellant.

Filed May 28, 1996

Affirmed

Davies, Judge

Dakota County District Court

File No. F0912027

Judith L. Oakes, J. Oakes & Associates, Galtier Plaza, Suite 780, 175 E. Fifth St., Box 15, St. Paul, MN 55101 (for Respondent)

Robert A. Nicklaus, Bruce R. Rubbelke, Nicklaus Law Firm, P.O. Box 116, Chaska, MN 55318 (for Appellant)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Stone, Judge.*

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

Appellant father challenges district court's denial of an evidentiary hearing on child custody and also argues for a further reduction or elimination of spousal maintenance and a further reduction of child support. We affirm.

FACTS

Appellant Michael Edward Rohricht (father) and respondent Lori Ann Rohricht (mother) dissolved their marriage in July 1992. Mother was awarded custody of the parties four children: M.R., now age 17; J.R., now age 15; K.R., now age 13; and S.R., now age 10.

Father brought a motion for a custody modification in 1993, which was denied. In early 1994, mother voluntarily allowed J.R. to live with father. M.R. and S.R. subsequently joined him, but in 1995, M.R. and J.R. moved back with mother, where they remain. S.R. still lives with father.

In July 1995, father brought motions for custody of all four children, the elimination or reduction of spousal maintenance, and a reduction of child support. The district court refused to conduct an evidentiary hearing on the custody issue and, except for approving the parties' stipulation that father would gain custody of S.R., denied father's custody motion. The trial court reduced spousal maintenance from $623 per month [1] to $450 per month and support payments from $1,560 to $1,277.

Father appeals, arguing for an evidentiary hearing on custody, a greater reduction or elimination of maintenance, and a greater reduction in child support.

D E C I S I O N

I. Evidentiary Hearing on Custody

Review of the denial of an evidentiary hearing on custody is de novo. Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991). Pursuant to Minn. Stat. ' 518.185 (1994), a party seeking modification of custody must submit affidavits supporting the motion. When considering whether to grant an evidentiary hearing, the facts alleged in those affidavits are to be taken as true, meaning there can be no disputed facts at this stage of the proceedings. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). In an "endangerment" case under Minn. Stat. ' 518.18(d)(iii) (1994), such as here, the supporting affidavits must make a prima facie showing that

(1) a change has occurred in the circumstances of the child or [the custodial parent]; (2) that a modification of custody is necessary to serve the best interests of the child; (3) that the child's present environment endangers his physical or emotional health or emotional development; and (4) that the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child.

Itasca County Social Servs. ex rel. Hall v. David, 379 N.W.2d 700, 703 (Minn. App. 1986) (emphasis added). There must be a "significant degree" of endangerment before a modification is proper. Ross, 477 N.W.2d at 756. Evidentiary hearings are "strongly encouraged" where there are allegations of "present endangerment." Id. (emphasis added).

Father's affidavit, taken as true, fails to establish a prima facie case of endangerment. Although there are very serious allegations contained in the affidavit with respect to M.R. and J.R., including trouble with the law, possession of substantial amounts of weaponry, and school performance troubles, these allegations relate to periods in 1994 when M.R. and J.R. lived with their father--before they moved back to their mother's residence more than a year ago. There are no allegations in the district court record indicating endangerment arising from mother's custody, as is implicitly required by both Minn. Stat. ' 518.18(d)(iii) and case law. As to K.R., the allegations of endangerment are stale and do not reflect the "significant degree" of physical or emotional endangerment required. We therefore hold that an evidentiary hearing was not required and that the district court properly denied father's motion for a custody modification.

II. Refusal to Eliminate or Further Reduce Maintenance

The standard of review of a spousal maintenance modification is whether the district court abused its "wide discretion." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The district court may modify a maintenance award upon a showing of substantially increased or decreased earnings or need of a party that makes the prior award unreasonable and unfair. Minn. Stat. ' 518.64, subd. 2 (Supp. 1995).

The district court made findings as to both parties' income and its order impliedly accounted for mother's new employment. The court reduced her maintenance award by stating:

The Court feels that [mother] has exaggerated her living expenses [by claiming more expenses] than her present income from all sources. The Court finds at this time reasonable spousal maintenance, keeping in mind the disposable income of the parties hereto, is $450.00 per month.

We hold that the court's attempt to equalize their income was proper, although not supported by findings as detailed as we prefer. See DonCarlos v. DonCarlos, 535 N.W.2d 819, 821 (Minn. App. 1995), review denied (Minn. Oct. 18, 1995) (district court must make specific findings supporting modification decision).

III. Refusal to Further Reduce Child Support

A. Sufficiency of Findings

The standard of review of a child support modification is whether the trial court abused its discretion. Dabill v. Dabill, 514 N.W.2d 590, 597 (Minn. App. 1994).

Minn. Stat. ' 518.551, subd. 5(i) (Supp. 1995), provides that the guidelines are "a rebuttable presumption and shall be used in all cases when * * * modifying child support." When applying the guidelines, the trial court must make written findings of the obligor's income and "any other significant evidentiary factors affecting" the decision. Minn. Stat. ' 518.551, subd. 5(i).

The trial court here made express findings as to both parties' income and noted its belief that mother exaggerated her expenses. It concluded that the change of S.R.'s custody to father has caused a "change of circumstances which makes the original Decree unfair * * *." We note no other "significant evidentiary factors" and hold that the trial court's findings are sufficient to support the modification in accordance with the guidelines.

B. Calculation of Guidelines Amount

Father also argues that the trial court incorrectly determined his support obligation under the guidelines. This is a legal question, which we review de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

Father argues that because he has now been given custody of S.R., S.R.'s status is analogous to an emancipated child, which, under Reynolds v. Reynolds, 498 N.W.2d 266, 273 (Minn. App. 1993), requires proration of the support obligation (i.e., a reduction in father's support by 25 percent or one-fourth of the total number of children). Father's analogy to emancipation is inappropriate; with emancipation, neither parent has any support obligation for the child.

In a joint physical custody situation, where the child spends some time with both parents, the court must calculate each parent's guidelines support obligation for their noncustodial period and offset the two amounts to determine the balance owed. Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985). The same concept applies here, where custody is permanently shifted from one parent to the other. The trial court properly calculated father's support obligation by calculating mother's obligation for S.R. (using mother's new income level) and subtracting it from father's guidelines level for the other three children. See Sefkow v. Sefkow, 427 N.W.2d 216-17 (Minn. 1988) (ordering support obligation of one parent offset against support obligation of other parent where parties had split custody).

IV. Attorney Fees

Mother moves for an award of appellate attorney fees, arguing that father has unreasonably prolonged this litigation. Minn. Stat. ' 518.14, subd. 1 (1994), permits such an award in the discretion of this court. See also Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989) (attorney fees awarded to ex-wife in custody case where ex-husband's basis for appeal was "specious" and "unfounded"), review denied (Minn. June 21, 1989).

Father's allegations of endangerment in this appeal unreasonably prolonged the litigation. Father failed to present any evidence of present endangerment, a clear requirement in the relevant statute and case law. We therefore award mother $1,000 in attorney fees.


Footnotes

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

[1] It is not clear from this record when or why father's maintenance obligation was previously reduced from the $1,000 per month set at the time of the decree to $623 per month.