This opinion will be unpublished and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
C0-96-336

In Re the Marriage of:
Harold K. Henagin, petitioner,
Appellant,

vs.

Mary Beth Henagin, nka Mary Beth Embree,
Respondent.

Filed July 23, 1996
Vacated and Remanded
Parker, Judge

Morrison County District Court
File No. V188809

Kevin L. Holden, Murphy & Holden, P.A., 30 North Seventh Avenue, St. Cloud, MN 56302 (for appellant)

E. Gordon Spengler, Burns Law Offices, P.A., 111 North Ninth Avenue, St. Cloud, MN 56302 (for respondent)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schultz, Judge.*

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

PARKER, Judge

Appellant Harold Henagin argues that although there has been a substantial increase in his earnings, the trial court erred by increasing his child support obligation because when all circumstances are considered, his former obligation was not unreasonable and unfair. He also argues that the trial court erred in failing to give adequate consideration to the two children of his current marriage. We vacate the trial court's order and remand.

D E C I S I O N

1. The decision to modify child support lies within the trial court's broad discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).

It is conceded by both parties that under Minn. Stat. ' 518.64, subd. 2(a) (1994), appellant's substantial increase in earnings has resulted in a rebuttable presumption that the initial support order is unreasonable and unfair, thus warranting modification. Appellant argues, however, that he has rebutted this presumption because he established that the previous amount of child support is still fair, in light of all relevant circumstances. [1]

In determining whether the statutory presumption has been rebutted, the court must evaluate and make findings regarding the custodial parent's circumstances, the obligor's circumstances, and those of the children.

Johnson v. Johnson, 533 N.W.2d 859, 865 (Minn. App. 1995) (citing Bock v. Bock, 506 N.W.2d 321, 324 (Minn. App. 1993)).

2. Henagin first argues that the trial court erred in establishing his net monthly income at $2,262.49 because his former wife, Mary Beth Embree, stipulated that Henagin's net monthly income was $2,064.92. The trial judge, however, based his figure on "petitioner's joint 1994 individual income tax return, petitioner's 1994 W-2 wage and tax statement and a letter from petitioner's employer, * * * minus statutory deductions." Embree's stipulation was made when she was not represented by counsel, and it appears that she had no concrete knowledge of Henagin's actual income:

THE COURT: And what's your opinion as to what his income is now?

MS. EMBREE: I would say it's close to $35,000.

* * *

THE COURT: * * * And, Mr. Larson, what's your position as to what your client's income is?

MR. LARSON: * * * [H]is net income per month after statutory deductions would be $2,064.91.

Henagin cites no authority to indicate that Embree's stipulation to the figure given by Henagin's attorney was binding on the trial court. To the contrary, a parent may not stipulate to the child's detriment where child support is concerned:

Child support relates to the nonbargainable interests of the children and is less subject to restraint by stipulation than other dissolution matters.

Swanson v. Swanson, 372 N.W.2d 420, 423 (Minn.App. 1985).

The basic right of minor children to support by the parents may not be affected by any agreement between the parents or third persons. Courts will not be bound by an agreement between parents affecting the rights of minor children with respect to support, but will be controlled by the welfare of the child as the paramount consideration.

Tammen v. Tammen, 289 Minn. 28, 182 N.W.2d 840, 842 (1970) (citing Kiesow v. Kiesow, 270 Minn. 374, 133 N.W.2d 652 (1965)).

Accordingly, we conclude that the trial court did not abuse discretion by relying on Henagin's tax return in calculating his monthly income.

3. Henagin next argues that the trial court erred in finding Embree's present net monthly income to be $1,791.44. The trial judge apparently adopted this figure from a custodial parent's affidavit executed by Embree. Henagin points out that Embree admitted at trial that her gross income was $42,000. But that figure included money she had earned from her business that was in excess of her full-time job at Champion International. See Minn. Stat. ' 518.551, subd. 5(c)(1) (except in circumstances not present here, court shall not consider income from excess employment). On the record before us, we conclude that the trial judge's determination was supported by evidence, was reasonably and sufficiently accurate, and was not an abuse of discretion.

Finally, we note that children are allowed to benefit from the incomes of both parents. Lujan v. Lujan, 400 N.W.2d 443, 445 (Minn. App. 1987). Thus, the fact that Embree also makes a good income is not itself a sufficient reason to deny modification.

4. Under Bock, the trial judge was required to consider the circumstances of both parties and the children at issue. Bock, 506 N.W.2d at 324. The record indicates that the trial judge complied with this requirement in concluding that Henagin's current obligation was no longer appropriate.

In reviewing a grant or denial of a motion to modify a support decree, our review is limited to looking at whether the trial court abused its discretion in the sense that its order was arbitrary or unreasonable or without evidentiary support.

Compart v. Compart, 417 N.W.2d 658, 661 (Minn.App. 1988) (citing Smith v. Smith, 282 Minn. 190, 193, 163 N.W.2d 852, 856 (1968)). In light of the figures provided by the trial court regarding the parties' incomes and expenses, we find Henagin's argument that he has rebutted the presumption to be somewhat persuasive. It is not the function of this court, however, to second-guess the trial court's findings by weighing evidence. Because there is also evidence in the record to support a finding that the presumption has not been rebutted, we must affirm the trial court on this issue.

5. Henagin next argues that the trial court's decision leaves him $650 per month short in meeting his current family's needs. Although we express no opinion as to the precise amount of the alleged deficit, we hold that the trial court's factual findings regarding the income and expenses of the parties compel the conclusion that under the trial court's order, Henagin will indeed incur a substantial deficit. The significant shortfall revealed by the trial court's own figures suggests that enforcing such an order, if it is possible, would not only be unfair but also unduly expensive to the parties.

6. Henagin argues that the trial court was required to "consider [his] subsequent children to a greater extent than $172.50." Consideration of subsequently born children by the trial court in determining support is lawful. Bock, 506 N.W.2d at 325. However, this court has repeatedly held:

If the statutory guidelines are applied to determine an obligation, the calculation must be made without regard for needs of children of a later union of the parent. If a smaller award is considered, the determination must be premised on factors identified by statute for a guidelines deviation.

Id. (citing Minn. Stat. ' 518.551, subd. 5(b)(h)). Thus, under current case law, factoring Henagin's subsequent children into the guidelines calculation constituted a deviation from the guidelines:

Lawrence also contends that the trial court and Court of Appeals erred in setting the child support award because both courts, in determining the appropriate amounts of support under the guidelines, failed to consider that Lawrence now has two additional children by his later marriage to support. We affirm the Court of Appeals on this issue. Children by a subsequent marriage, while relevant to a trial court's decision, are not to be factored into the child support guideline tables in Minn. Stat. ' 518.551, subd. 5 (1984).

Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986).

To arrive at Henagin's monthly income, the trial judge deducted $172.50 due to Henagin's subsequent children. We conclude that such a deduction is not only unauthorized by Minn. Stat. ' 518.551, subd. 5, but also directly violates the holding of Erickson. In Bock, this court stated:

We have heretofore refrained from concluding that the guidelines could play no part whatsoever in these deviation calculations. * * * But all conceivable uses of the guidelines involve the process of factoring prohibited by Erickson, and they distort the guidelines scheme enacted by the legislature.

Bock, 506 N.W.2d at 325 (citations omitted). Thus, the trial judge erred by deducting the $172.50 from Henagin's income due to his subsequent children and then applying the guideline calculations.

Minn. Stat. ' 518.551, subd. 5(i), provides in relevant part:

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.

Although there was a de facto deviation from the guidelines in this case, the court did not comply with the above requirements. In light of the trial court's findings regarding Henagin's monthly income and his monthly expenses, however, we conclude that the record compels deviation. The current order appears to be both unfair and unenforceable on its face. We agree with Henagin that the trial court has given insufficient consideration to the expenses of his later-born children, as well as his current wife, each of whom he is legally obligated to support. We conclude that the application of Morrison County's so-called "two-child credit" is arbitrary and an abuse of discretion in the sense that it involves a failure to exercise discretion. See In re Welfare of M.F., 473 N.W.2d 367, 370 (Minn. App. 1991) (where district court ruled on a discretionary issue as a matter of law, this court remanded for an exercise of discretion). We find no justification for the rule in case law or in logic. To the contrary, under Minn. Stat. 518.551, subd. 5(i), a trial court is required to deviate according to the facts and circumstances of each case.

7. We vacate the trial court's order and remand the case for specific findings regarding the amount of support required facially by the guidelines and the governing reasons for deviation from the guidelines. The findings should support a fair and enforceable order that gives adequate consideration to Henagin's later-born children. If deemed necessary, the trial court may reopen the record for additional evidence. We instruct the trial court to pay close attention to both Minn. Stat. ' 518.551, subd. 5, and Bock, a case in which this court outlined "permissible approaches in considering the burden of an obligor for the support of later-born children." Bock, 506 N.W.2d at 324.

Order vacated and remanded.


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] Although the court's prior order for support set his obligation at $125 per month, for purposes of this appeal, Henagin has conceded that his prior support obligation would be $175 per month, the amount he was paying at the time Embree sought modification.