This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

James Knight Hosley, petitioner,



Maureen Ann Hosley,


Filed March 18, 1997

Affirmed in Part, Reversed in Part, and Remanded

Schumacher, Judge

Ramsey County District Court

File No. DMF294104

James D. Capra, 638 Minnesota Building, 46 Fourth Street, St. Paul, MN 55101-1112 (for Appellant)

John H. Daniels, Jr., Willeke & Daniels, 201 Ridgewood Avenue, Minneapolis, MN 55403-3508 (for Respondent)

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



Appellant James Knight Hosley (father) argues that the district court abused its discretion by continuing to reserve child support. By notice of review, respondent Maureen Ann Hosley (mother) challenges the denial of her motion for modification of child custody and the court's visitation schedule. We affirm in part, reverse in part, and remand.


In February 1994, the parties terminated their eight-year marriage. The resulting judgment awarded father sole physical custody of the parties' two children, reserved the issue of child support, and awarded mother "the right to very reasonable and liberal visitation with the parties' minor children." Sometime after the dissolution, father and the two children moved to Mora, approximately 80 miles from mother's residence.

In February 1996, father sought an order from the district court awarding child support and establishing a permanent visitation schedule. Mother moved the court for modification of child custody or, in the alternative, a permanent visitation schedule. Although the district court calculated mother's monthly guideline child support obligation at $190, the court continued to reserve child support, finding mother's present financial resources inadequate for her own needs and father's present financial resources adequate for both his needs and the children's needs. In addition, the district court denied mother's motion for modification of child custody and established a permanent visitation schedule. The district court denied the parties' cross-motions for amended findings. Both father and mother appeal.


1. Father challenges the district court's calculation of mother's net monthly income. We will affirm the district court's determination of net income for the purpose of calculating child support "if it has a reasonable basis in fact." Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). Here, the district court calculated mother's gross monthly income at $1,228 and net monthly income at $793. In determining net income, the district court deducted without comment mother's monthly IRA contribution of $167. For child support purposes, the obligor can deduct "reasonable pension" contributions from total monthly income. Minn. Stat. § 518.551, subd. 5(b) (1996). An IRA and a pension are not identical. On the facts of this case, which include the fact that the support obligor's employer does not provide a pension plan, an IRA contribution is the functional equivalent of a pension deduction. Thus, without a specific finding on the reasonableness of the amount of mother's IRA contribution, we cannot review whether the district court's determination of net income has a reasonable basis in fact. Strauch, 401 N.W.2d at 448; see also Mueller v. Mueller, 419 N.W.2d 845, 847 (Minn. App. 1988) (remanding for findings on whether father's IRA contribution was reasonable in light of parties' and children's respective needs). We remand for findings on the reasonableness of the amount of mother's IRA contribution.

Father argues that the district court abused its discretion by failing to consider mother's boat, purchased for $3,500, as a potential source of funds for child support. See Minn. Stat. § 518.551, subd. 5(c)(1) (1996) (court shall consider parties' personal property in determining whether to deviate from guidelines). "[C]hild support payments take precedence over personal investments or luxury purchases." Bakke v. Bakke, 351 N.W.2d 387, 388 (Minn. App. 1984) (referring to monthly expenses for boat and snowmobile licenses and entertainment); see also Kuronen v. Kuronen, 499 N.W.2d 51, 54 (Minn. App. 1993) (recognizing that parent's obligation to support child takes precedence over every consideration outside of the absolute necessities of self-sustenance), review denied (Minn. June 22, 1993). We remand for findings on whether mother's boat is a potential source of child support.

Because we remand for specific findings, we will not address father's remaining arguments concerning the reservation of child support. The district court's findings on remand may compel an award of child support. We note, however, that the district court found that both mother and father had several hundred dollars more in monthly expenses than income. Even if mother decreased the size of her IRA contribution and sold her boat, a reservation of child support may still be appropriate. See Becker County Human Servs. v. Peppel, 493 N.W.2d 573, 577 (Minn. App. 1992) (guidelines deviation required because parent's expenses were essential and, even without support obligation, parent had running deficit of $133 per month).

2. By notice of review, mother asserts that she was entitled to an evidentiary hearing on her motion for modification of child custody. The district court may deny such a motion without a hearing "unless the accompanying affidavits set forth sufficient justification, if the facts alleged therein are true, for the modification." Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981). To determine whether the district court erred, we must review the movant's affidavits to see if she made out a prima facie case for modification of custody. Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992). The movant must show fact allegations establishing on a preliminary basis (1) that a change has occurred in the circumstances of the child or custodian, (2) that a modification of custody is necessary to serve the best interests of the child, (3) that the child's present environment endangers his or her physical or emotional health or impairs the child's emotional development, and (4) that the harm likely to be caused by the change of environment is outweighed by the advantage of change to the child. Minn. Stat. § 518.18(d) (1996).

A careful review of mother's affidavits reveal that her uncorroborated allegations of father's abuse are based primarily on incidents occurring during the marriage. The district court can modify child custody only upon the basis of facts that have arisen since the prior order or that were unknown to the court at the time of the prior order. Id. Moreover, mother failed to show facts that, if true, would establish that the children's present environment posed a significant degree of danger to their health or development. See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) ("legislature likely intended to demand a showing of a significant degree of danger"). We conclude that the district court did not err in finding that mother failed to make out a prima facie case for modification of custody. See Axford v. Axford, 402 N.W.2d 143, 145 (Minn. App. 1987) (affirming district court's refusal to hold evidentiary hearing where affidavit was "devoid of allegations supported by any specific, credible evidence").

3. Mother challenges the amount of visitation granted by the district court.

The trial court has broad discretion to determine what is in the best interests of the child in the area of visitation and its determination will not be overturned absent an abuse of discretion.

Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). As part of the marital termination agreement, the parties agreed that mother would be awarded the right to "very reasonable and liberal visitation" with the minor children. The district court adopted this language in the judgment. Mother claims that the parties intended that she receive a significant quantity of visitation, practically daily contact with the children.

Both parties requested a permanent visitation schedule. The district court denied mother's request to divide the winter and spring school holidays and award a total of six weeks visitation during the summer break. By noting that the children would not see mother during the work day, the district court properly focused on the best interests of the children, rather than the best interests of the parent. The purpose of visitation is to maintain the parent-child relationship. Danielson v. Danielson, 393 N.W.2d 405, 407 (Minn. App. 1986). The regular and consistent visitation ordered by the court, along with two weeks of uninterrupted visitation during mother's vacation time, is reasonable and adequate to maintain that relationship. See id. (four weeks of summer visitation with a child living in another state was reasonable and adequate visitation). We conclude that the district court did not abuse its discretion in its visitation schedule.

Affirmed in part, reversed in part, and remanded.