This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-95-2672

Kathleen Marie Dell,
petitioner,
Respondent,

vs.

Timothy Lawrence Gaughan,
Appellant.

Filed August 6, 1996
Reversed in part and modified in part

Randall, Judge

Dakota County District Court
File No. F7-94-14139

Paul Hark, Hark & McGarry Law Office, 8500 201th Street West, Suite 104, Lakeville, MN 55044 (for respondent)

Timothy S. Choal, 8 East Fourth Street, Suite 700, St. Paul, MN 55101 (for appellant)

Considered and decided by Parker, Presiding Judge, Randall, Judge, and Schumacher, Judge.

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

RANDALL, Judge

Appellant challenges the trial court's modification of his child support obligation. We reverse in part and modify in part.

FACTS

Appellant Timothy Gaughan and respondent Kathleen Dell have one minor child, B.L.G. Appellant also has two children from a prior relationship; he has custody of one child and pays child support for the other child. In July 1994, a trial court issued an order adjudicating custody, child support, and visitation of B.L.G. The order incorporated the parties' stipulation regarding child support and provided that

both parties have very limited financial resources. That as and for child support [Gaughan] agrees to provide one-half ( 1/2) of the cost of food, clothing and diaper needs of the child.

At the time of the stipulation and 1994 order, respondent was employed as an accountant at Treasure Island Casino, earning an average net income of $1,350 per month. At the same time, appellant was also employed as an accountant at Treasure Island Casino, earning an average net income of $1,519.24 per month, which represented an amount net of appellant's child support obligation for his other child.

In September 1994, pursuant to the parties' stipulation and the July 1994 order, respondent and the child moved to Ohio. Following the move, respondent was unemployed for about two months and received Aid for Dependent Children (AFDC) benefits and food stamps in Ohio. During that time, respondent filed a motion in the trial court to set appellant's child support obligation pursuant to the statutory guideline amounts. In October 1994, appellant filed a motion for a more detailed visitation schedule.

On February 24, 1995, following a hearing, the trial court issued an order modifying appellant's child support obligation, ordering appellant to pay $380 per month in child support and also requiring him to pay $53.10 per month for child care costs. Appellant appealed the order to this court. This court remanded the case to the trial court for further findings of fact justifying the modification. Dell v. Gaughan, No. C6-95-525 (Minn. App. Sept. 12, 1995).

On remand, and after a hearing, the trial court issued an order modifying appellant's child support and ordering appellant to pay 25 percent of his net monthly income in child support, commencing December 15, 1995. Further, the court ordered appellant to pay "his proportionate share of child care costs . . . to be based upon his income when he is employed." This appeal followed.

D E C I S I O N

The district court has discretion to modify a child support order, and its decision will be upheld unless the court reached a "clearly erroneous conclusion that is against logic and the facts on record." Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). "This discretion, however, must be exercised within the limits set out by the legislature." Id. The district court must make express findings on the factors supporting a modification. Id. at 865.

In general, modification of a child support order is permitted only upon a showing of substantially changed circumstances of a party or child, any of which makes the terms of the existing order unreasonable or unfair. Minn. Stat. ' 518.64, subd. 2 (1994). The trial court must look to the parties' current circumstances when determining whether there has been a substantial change in circumstances justifying modification. See County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993)(current net income must be determined when setting child support); Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989) (most recent figures should be used to calculate current net income for child support purposes).

The trial court found that respondent's temporary decrease in income, receipt of AFDC, and child care expenses constituted a substantial change in circumstances warranting child support modification. The trial court found that respondent began working as a C.P.A. on November, 16, 1994, earning a net income of approximately $1,696 per month. At the time of the original order, she was earning an average net income of $1350 per month. On remand, the trial court also found that prior to the remand hearing, appellant was involuntarily terminated from his employment due to reorganization. The record indicates that appellant currently has a net monthly income of about $1,147, whereas, at the time of the original order, he was earning approximately a net monthly income of $1,519.24. The trial court also found that respondent incurred child care costs in the amount of $200 per month; however, the record indicates that respondent was paying approximately $300 per month in child care expenses at the time of the July 1994 support order. Thus, child care costs are not new.

The trial court modified appellant's support obligation, ordering appellant to pay 25 percent of his net monthly income in child support and to pay "his proportionate share of child care costs . . . to be based upon his income when he is employed." We note that ordering appellant to pay 25 percent of his net income represents the statutory guideline amount for an obligor with a net monthly income between $1001-$5000 and one child. Minn. Stat. 518.551, subd. 5(b) (1994). We conclude that yet another remand would be an inappropriate use of judicial resources and of the parties' obviously limited discretionary income for further attorney fees and court costs. Thus, we reinstate the July 1994 support order with the modification that appellant's child support shall be capped at 25 percent of his statutory net income. See Minn. Stat. ' 518.551, subd. 5(b) (providing calculation for net monthly income). Put another way, if respondent claims that 50 percent of the cost of food, clothing, and diaper needs is an amount exceeding 25 percent of appellant's net, the lesser of 25 percent or the actual cost shall be the maximum. See Minn. R. Civ. App. P. 103.04 (appellate court may reverse, affirm, or modify, or "take any other action as the interest of justice may require").

Reversed in part and modified in part.