This opinion will be unpublished and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

C0-96-871

State of Ohio, ex rel. Ruth A. Rall,

Respondent,

vs.

James Douglas Benko,

Appellant.

Filed November 19, 1996

Vacated and Remanded

Parker, Judge

Washington County District Court

File No. F796569

Richard M. Arney, Washington County Attorney, Deborah V. Kraus, Assistant County Attorney, 14900 61st Street North, Stillwater, MN 55082 (for respondent)

Ellen Dresselhuis, Dresselhuis Law Office, P.A., 2738 Winnetka Avenue South, New Hope, MN 55427-2850 (for appellant)

Considered and decided by Parker, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge[*].

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

PARKER, Judge

Appellant James Benko challenges an order awarding monthly child support and support arrearages to respondent Ruth Rall for the parties' daughter. Rall also appeals the 50/50 division of unreimbursed medical and dental expenses set out in the order. We vacate and remand.

FACTS

A daughter was born to Rall and Benko on November 9, 1982. Rall and Benko were never married. Prior to acknowledging the paternity of his daughter, Benko married another woman and started a family. Benko and his wife have three children.

In August 1994, Rall, who resides in Ohio, brought an action to establish her daughter's paternity and for child support, support arrearages, and medical expenses.[1] After blood tests in December 1995, Benko acknowledged that he was the father, and a judgment of paternity was entered by the Washington County District Court.

On February 23, 1996, a hearing was held to determine the support obligation. The administrative law judge (ALJ) found that Benko's hourly rate of pay was $18.45, with a net monthly income of $2,608.18. The ALJ noted that Benko also receives $473.60 per month in deferred compensation from his employer, Northwest Airlines, but that this income would not be available to Benko until ten years after deposit. The ALJ also found that Benko's wife was diagnosed with lupus and does not work a full-time, permanent job because of the illness. The ALJ noted, however, that Benko's wife works part-time as a waitress and cares for their three children. The ALJ also noted that Benko expects to incur future expenses related to visitation with his daughter. Although Benko receives free travel through his employment, he is required to pay a service charge on his tickets.

Without including any specific calculations or itemized explanations, the ALJ determined Benko's reasonable monthly expenses to be $2,320. Pursuant to Minn. Stat. § 518.551, subd. 5 (1994), the ALJ determined that Benko's support obligation was $652 per month. The ALJ determined that Benko could provide medical and dental insurance for his daughter through his employer at no additional cost. Without making any detailed findings, the ALJ concluded that Benko had the ability to pay back child support in the amount of $13,296 for the period from January 1, 1994, through December 31, 1995.

Upon review of Rall's financial information, the ALJ determined that Rall's gross monthly income was $880 per month from her $5.50 per hour job. The ALJ noted that Rall also has a son with muscular dystrophy and emotional problems and that Rall received $251 per month in social security benefits for the son's disability and $231 per month for the son's father's disability. The ALJ found that Rall had no educational or child care expenses for the daughter. Without noting items with any specificity, the ALJ found that the daughter had special needs, required glasses, and had expenses associated with her high school drill team.

On review of the financial circumstances of the parties and the factors set out in Minn. Stat. § 518.551, subd. 5, the ALJ concluded that the monthly child support should be $554. Again, without including any financial calculations, the ALJ noted that the downward deviation was warranted because of Benko's three subsequent children and his wife's illness. The ALJ concluded that the deviation in support was not automatic, but resulted from her consideration of the best interests of the parties' minor daughter while balancing the financial needs of Benko's current family. The ALJ also noted that the parties agreed to be responsible for one half the "reasonable and necessary uninsured medical and dental expenses" of their daughter.

D E C I S I O N

"On appeal from a judgment where there has been no motion for new trial, the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law." Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989) (citation omitted). The same standard of review applies for appeals from the child support decisions of an ALJ. Lee v. Lee, 459 N.W.2d 365, 368 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990).

1. Benko argues that the ALJ's findings are insufficient and do not support the amount of child support awarded. He contends that the ALJ failed to make specific and detailed findings to support the amount of the child support award. Benko claims that if he is required to make the $554 per month support payments, his three subsequent children will be unfairly prejudiced. Benko acknowledges that Minnesota law precludes subsequent children from being "factored in" when determining a child support award for the first child under the guidelines. See Bock v. Bock, 506 N.W.2d 321, 324-25 (Minn. App. 1993). However, he contends that requiring a $554 per month payment for his daughter would constitute an award of $2,216 per month if applied to all four children. He argues that the guideline amount for four children totals $1,107 per month or $254 per child. He contends that he wants to provide support for his daughter, but his subsequent children should not be deprived in the process.

Benko also argues that the ALJ's decision to award child support arrearages of $13,296 would be detrimental to his ability to support his subsequent children. He contends that the amount of the arrearage award adds $110 per month to the already excessive $554 per month child support award. Benko argues that had the ALJ properly considered all of his financial circumstances, she would not have concluded that he had the ability to pay the amount of child support awarded.

A court must make express findings on the factors considered in establishing a support award. Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn. 1986).

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 parents. If a smaller award is considered, the determination must be premised on factors identified by statute for a guidelines deviation.

Bock, 506 N.W.2d at 325 (citing Minn. Stat. § 518.551, subd. 5(b), (h) (1992)). When determining whether to deviate from the guidelines, the trial court must take the following factors into consideration:

(1) all earnings, income, and resources of the parents, including real and personal property, but excluding income from excess employment of the obligor or obligee * * *;

(2) the financial needs and resources, physical and emotion condition, and educational needs of the child or children to be supported;

(3) the standard of living the child 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 * * *;

(5) the parents' debts * * *; and

(6) the obligor's receipt of assistance * * *.

Minn. Stat. § 518.551, subd. (5)(c) (1994). If the court decides to deviate from the guidelines, the court must not favor subsequent children over the first child. Bock, 506 N.W.2d at 325 (citing Hayes v. Hayes, 473 N.W.2d 364, 366 (Minn. App. 1991); D'Heilly v. Gunderson, 428 N.W.2d 133, 135-36 (Minn. App. 1988)). However, when deciding to deviate, the trial court must consider contributions to all children of the obligor:

(1) the trial court has to find the obligor's total ability to contribute to dependent children, taking into account the obligor's income and reasonable expenses exclusive of child care; (2) the court should then find the total needs of all of the obligor's children, and if these needs are less than the obligor's ability to pay, the needs may become the obligor's maximum child care contribution; (3) the court should make specific findings on the needs of the child or children benefiting from the current support determination; and (4) the court must exercise discretion to fairly determine the current support obligation and the contribution left available for other children, keeping in mind the general standard that the obligation now determined normally should be in an amount at least equal to the contribution for a subsequent child.

Bock, 506 N.W.2d at 325. When determining what amount is just, "a court must consider the earnings, needs and resources of the obligor, obligee and child." McNeal v. Swain, 477 N.W.2d 531, 534 (Minn. App. 1991) (citing Rieck v. Lambert, 396 N.W.2d 269, 271 (Minn. App. 1986)). A court must make particularized findings when formulating a past support award; the current and past income of the obligor along with the past needs of the child must be considered. Id.

We conclude that the child support and arrearage awards are unsupported by the evidence. The ALJ notes only that the statutory guidelines and caselaw requirements have been applied in determining the support award, without making express and particularized findings as to the "earnings, needs and resources available to the obligor, obligee and the child." The child support and arrearage award calculations require more than summary conclusions that all relevant factors were considered, and deviation from the guidelines requires explication sufficient to provide for appellate review.

We also note that information on the financial status and resources of all parties is incomplete. It will be necessary to reopen the trial court record so that information may be furnished as to (1) Benko's tax returns for 1993-1995; (2) Benko's wife's tax or income information (to the extent that Benko is entitled to a downward deviation from a guideline award order); and (3) the specific needs of the daughter, the subsequent children, and his wife. See Minn. Stat. § 518.551, subd. 5(c)(1) (requiring consideration of all earnings, income and resources of the parents).

Additionally, we note that due to Rall's earlier pro se appearance, the budget she submitted did not comport with the complete itemized budget required for the resolution of family law matters. We believe, therefore, that the record should be reopened to allow Rall to present a complete, itemized household budget. We conclude that the child support and arrearage awards cannot stand because they appear to lack evidentiary support. We vacate the order and remand for appropriate findings in accord with Minn. Stat. § 518.551, subd. 5f(c)(1)-(6), and as explained in Bock.

2. Rall also argues that the ALJ erred in determining that the parties should be equally responsible for unreimbursed medical and dental expenses. She contends that she did not agree to split the unreimbursed medical and dental expenses. Rall therefore argues that under Minn. Stat. § 518.171, subd. 1(d) (1994), the ALJ must make a finding that the obligee has the ability to contribute to these unreimbursed expenses and order assumption of these expenses, based on "the proportionate share of their total net income." Because the ALJ failed to make findings as to her total net income, she argues, the case should be remanded for this determination.

Unless otherwise agreed by the parties and approved by the court, if the court finds that the obligee is not receiving public assistance for the child and has the financial ability to contribute to the cost of medical and dental expenses for the child, including the cost of insurance, the court shall order the obligee and obligor to each assume a portion of these expenses based on their proportionate share of their total net income * * *.

Minn. Stat. § 518.171, subd.1(d).

The ALJ noted, "the parties agreed the Obligor shall add the minor child to his dependent medical and dental insurance and be responsible for one-half the reasonable and necessary uninsured medical and dental expenses of the minor child" (emphasis added). However, we are not directed to anything in the record to support the conclusion that there was any such agreement between the parties. Furthermore, Rall denies making any agreement with regard to the unreimbursed medical and dental expenses. We conclude, therefore, that this finding is unsupported by the evidence. We vacate this order and remand for further findings consistent with Minn. Stat. § 518.171, subd. 1(d), on specific evidence as to the existence of such an agreement.

Vacated and remanded.

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

[ ]1Rall does not receive public assistance and this case does not involve reimbursement of public assistance.