This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-800

County of Washington, Minnesota,

a body politic and corporated and

Washington County Community Services,

Appellants,

vs.

Barbara A. Kusilek,

Plaintiff,

and

David Joseph Johnson,

Respondent.

Filed January 7, 1997

Reversed and Remanded

Kalitowski, Judge

Washington County District Court

File No. F8901877

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

David Joseph Johnson, 104 N. Harriet Street, Stillwater, MN 55082 (Pro Se Respondent)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.[*]

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

KALITOWSKI, Judge

Appellants County of Washington and Washington County Community Service (together County) challenge the order of an Administrative Law Judge (ALJ) setting David J. Johnson's child support obligation below the statutory support guidelines arguing the departure was not supported by sufficient findings. We reverse and remand.

D E C I S I O N

The decision to modify a child support order lies in the broad and sound discretion of the district court, and an appellate court will not reverse the district court's decision unless it is clearly erroneous. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). The standard of review for a child support modification order is the same regardless of whether the order was issued by a district court or by an administrative law judge. Lee v. Lee, 459 N.W.2d 365, 369 (Minn. App. 1990).

The statutory support guidelines are a "rebuttable presumption" and must be used in all cases when establishing or modifying child support. Minn. Stat. § 518.551, subd. 5(i) (1996). If the court deviates from the guidelines, the court must make written findings addressing: (1) the reasons for the deviation; (2) the factors in paragraph (c); and (3) how the deviation serves the best interests of the child. Id. Paragraph (c) provides that in addition to the guidelines, the court must consider the following factors in modifying support or in determining whether to deviate from the guidelines:

(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 that meets the criteria of paragraph (b), clause (2) (ii);

(2) the financial needs and resources, physical and emotional 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 and what financial benefit the parent receives from it;

(5) the parents' debts as provided in paragraph (d); and

(6) the obligor's receipt of assistance under section 256.72 to 256.87 or 256B.01 to 256B.40.

Minn. Stat. § 518.551, subd. 5(c) (1996).

When a district court deviates from the guidelines because of the needs of subsequent children, it normally must not favor subsequent children over the obligor's first child. Bock v. Bock, 506 N.W.2d 321, 325 (Minn. App. 1993). The deviation process requires consideration of: (1) 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 total needs of all of the obligor's children; and (3) the needs of the child or children benefitting from the current support determination. Id. In considering these factors, the district court "must exercise discretion to fairly determine the current support obligation and the contribution left available for other children." Id. Under normal circumstances, the amount of support for an earlier born child should be at least equal to the contribution for a subsequent child. Id.

Here, the ALJ made findings on Johnson and Kusilek's net monthly income and Kusilek's reasonable monthly expenses. The ALJ cited Johnson's subsequent child as the reason for the downward departure from the guidelines. The ALJ found a failure to depart downward would create an extreme hardship for Johnson in that he would be unable to meet the needs of his subsequent child. The ALJ further found the departure is in the best interest of C.J.K. "because it allows the Obligor to provide support for the child [C.J.K.] while contributing to the support of the child in his care."

Upon review of the record, we conclude the ALJ's decision to deviate downwards from the guideline was not supported by the necessary statutory findings. The ALJ did not make a finding on Johnson's reasonable monthly expenses, but merely recited his claimed monthly expenses. See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (the district court cannot merely recite the parties' claimed expenses, but must determine their reasonable expenses itself). The ALJ did not make findings on the income and child support Johnson's wife receives. See Bock, 506 N.W.2d at 325 (obligor's reasonable expenses must be reduced, as appropriate, to take into consideration contributions to those costs by others who share the obligor's current household). Also, the ALJ failed to address the debts claimed on Johnson's financial statement. See Minn. Stat. § 518.551, subd. 5(d)(1) (1996) (debts owed to private creditors may not be considered in establishing or modifying child support when the right to support has been assigned to a public agency). Further, the ALJ failed to make findings on the financial benefits Johnson received by claiming C.J.K. as a dependent on his 1994 federal income tax return. See Minn. Stat. § 518.551, subd. 5(c)(4) (1996) (in determining whether to deviate from guidelines, the court shall take into consideration which parent receives the income taxation dependency exemption and what financial benefit the parent receives from it). Additionally, the ALJ did not take into account the income tax refunds Johnson received in 1995. See Koury v. Koury, 410 N.W.2d 31, 32 (Minn. App. 1987) (holding that obligor's share of an income tax return must be included in determining funds available for child support).

In cases involving public assistance payments, any deviation from the support guidelines should be accompanied by express findings supporting the deviation. Without sufficient findings of fact by the ALJ, this court cannot determine whether the ALJ abused her discretion in setting the child support. See Moylan, 384 N.W.2d at 865 (findings necessary to support judgment and provide appellate court with basis for decision). Because the ALJ made insufficient findings in her deviation determinations, we reverse and remand for such further proceedings as deemed necessary by the ALJ to consider the appropriate factors and make the necessary findings.

Reversed and remanded.

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