This opinion will be unpublished and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
C9-96-321

In Re the Marriage of:
Karen Marie Johnston,
n/k/a Karen Marie Gentilini, petitioner,
Respondent,

vs.

Gregory Edward Johnston,
Appellant.

Filed July 23, 1996
Reversed and remanded
Huspeni, Judge

Hennepin County District Court
File No. 170525

Ronald Resnik, 6200 Shingle Creek Parkway, Suite 460, Brooklyn Center, MN 55430 (for Respondent)

Anthony R. Rossini, Rossini & Rossini, P.A., 5353 Gamble Dr., Suite 150, Minneapolis, MN 55416 (for Appellant)

Gregory E. Johnston, 5353 Gamble Dr., Suite 125, Minneapolis, MN 55416 (Appellant)

Considered and decided by Klaphake, Presiding Judge, Huspeni, Judge, and Schultz, Judge.*

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

HUSPENI, Judge

Appellant Gregory Johnston challenges the district court order modifying his child support obligation. He argues the district court erred by (1) not applying the Hortis/Valento cross-award formula, (2) failing to make adequate findings to support an upward departure from the guidelines, (3) not addressing the allocation of child care costs, and (4) failing to make a specific finding on respondent Karen Gentilini's income. Respondent asks for attorney fees on appeal. Because the findings are so insufficient as to preclude meaningful review of the district court's decisions, we reverse and remand; we deny respondent's request for attorney fees.

FACTS

When the parties' marriage was dissolved in 1992 pursuant to their stipulation, legal and physical custody were granted to the parties jointly, [1] and appellant was ordered to pay $1,100 per month in child support. In August 1995, appellant moved to amend the judgment to modify the physical custody schedule, to reduce his child support obligation, and to establish the parties' child care cost contributions. In September 1995, the custody schedule was modified so that each party has custody on a 50-50 basis. [2] Appellant's child support obligation was reduced by 30 percent. Upon review, the district court affirmed the 30 percent reduction in appellant's child support obligation, but recalculated the amount to be $770 rather than $737 as recommended by the family court referee.

D E C I S I O N

1. Modification of child support is within the district court's discretion and will not be reversed absent an abuse of discretion. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993).

When parents expressly share physical custody, the proper method of determining child support is to require each parent to pay the guideline amount during the time when the other parent has custody. Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985). This cross-award formula should be used "unless there are specific reasons for a departure." Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986). In applying the cross-award formula, the district court "may offset the respective child support obligations, or annualize payments, or both, within its discretion." Broas v. Broas, 472 N.W.2d 671, 673 (Minn. App. 1991) (quoting Hortis, 367 N.W.2d at 636).

Here, the district court refused to apply the cross-award formula, stating:

[The referee] properly determined that there was a lack of a cross-award of child support, per Valento, in the parties' stipulation; and that due to the disparity in the parties' income and their respective monthly expenses, if there had been a cross award without an award of spousal maintenance or other compensating award, the Court would not have approved the stipulation as being fair and equitable.

* * * *

[Respondent] is still in need of child support above the guidelines amount in order to meet the children's monthly expenses when they are in her care.

Given the circumstances, it is not proper to apply a cross-award of child support.

Appellant argues the district court erred by (1) departing from the guidelines and the cross-award formula, and (2) failing to make adequate findings to support this departure. When the appellant in Broas, where physical custody of the minor child was alternated weekly, made the same argument, the court held:

"The guidelines should be straightforwardly applied * * * by requiring [father] to pay the monthly support indicated by the guidelines during the months [mother] has custody, and requiring [mother] to pay support according to her income and the support guidelines during the months [father] has custody."

* * * *

"Absent a showing that the children's needs require a higher level of support from the parent with higher income, we believe the guidelines should be straightforwardly applied."

* * * *

The trial court erred when it departed from the child support guidelines and the [cross-award] formula * * * when the parties share joint physical custody on a 50-50 basis.

Broas, 472 N.W.2d at 673-74 (quoting Hortis, 367 N.W.2d at 635-36).

The district court can deviate from the guidelines if the court makes specific findings in accordance with Minn. Stat. ' 518.551, subd. 5(i) (Supp. 1995), which provides:

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.

The referee found that under the modified arrangement, which gave appellant and respondent each physical custody 50 percent of the time,

the one additional overnight per week does not result in a substantial decrease [in respondent's expenses] or a substantial increase [in appellant's] monthly living expenses.

The referee's observation is well taken. In addition, it may be argued that each parent's monthly expenses might well be higher when custody alternates weekly than when it alternates semi-annually. We note, however, that while Hortis (which first enunciated the principle that in joint physical custody cases each parent should pay support during the time the other parent has custody) involved semi-annual alternation, 367 N.W.2d at 634, subsequent cases involved much more frequent exchanges. See, e.g., Broas, 472 N.W.2d at 672 (custody alternated weekly); Valento, 385 N.W.2d at 861 (in each 28-day period one parent had custody 12 days, the other 16). Thus, it appears that the cross-award formula has been applied in appellate case law without regard to how frequently physical custody alternates.

Because the district court failed to apply the cross-award formula or to make findings sufficient to permit meaningful review, we remand to enable the court to make the findings required to support deviation from the cross-award formula. On remand, the district court should also allocate child care costs between the parties as mandated by Minn. Stat. ' 518.551, subd. 5(b)(2)(ii)(E) (Supp. 1995).

Finally, appellant contends the district court erred by failing to make a specific finding as to respondent's current net monthly income. The family court referee found that respondent "has earnings of approximately $3,000.00 gross per month/$2,292.00 net per month/$2,559.00 net per month including her 1994 income tax refunds." Although the parties stipulate that for purposes of appeal respondent's net monthly income may be considered to be $2,559.00, the district court did not explicitly state which figure it was using as respondent's monthly income. On remand, the district court should clearly state the amount it determines to be respondent's net monthly income.

2. Respondent requests attorney fees pursuant to Minn. Stat. ' 518.14, subd. 1 (1994). A court may award attorney fees when it finds that (1) fees are necessary for a party to assert his/her rights in an action, (2) the payor has the financial means to pay the fees, and (3) the payee lacks the means to pay the fees. Minn. Stat. ' 518.14, subd. 1. Because there has been no showing that respondent lacks the means to pay her attorney fees or that appellant has the means to pay those fees, respondent's motion for attorney fees is denied.

3. Nothing in this opinion shall be construed as an expression of how the district court should decide the remanded issues. Also, whether to reopen the record on remand shall be discretionary with the district court.

Reversed 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] Appellant was to have the children with him "alternating weekends from Friday afternoon to Monday morning; from Tuesday evening to Wednesday morning one week; and from Thursday evening to Friday morning the following week."

[2] The referee recommended and the district court affirmed that "[e]ach party shall have the children on alternating weekends from Friday a.m. to Monday a.m., from Wednesday a.m. to Friday a.m. one week, and from Monday a.m. to Wednesday a.m. the following week."