This opinion will be unpublished and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:

Larry Richard Wallace, petitioner,



Kayleen Ann Wallace,


Filed September 23, 1997

Affirmed in part, reversed in part, and remanded

Randall, Judge

Concurring specially, Lansing, Judge

Roseau County District Court

File No. F896181

Larry R. Wallace, 4 Bergeron Court, Salol, MN 56756 (pro se respondent)

Shirley Dvorak, Moosbrugger, Dvorak & Carter, P.L.L.P., 219 South Third Street, P.O. Box 5159, Grand Forks, ND 58206-5159 (for appellant)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Harten, Judge.



Kayleen Ann Wallace appeals from a judgment and decree of dissolution, contending the trial court abused its discretion by: (1) awarding sole physical custody of the parties' son to respondent Larry Richard Wallace; and (2) setting the amount of child support. We affirm in part, reverse in part, and remand.


Appellant and respondent were married in May 1994. Appellant has two children from prior relationships, who were ages 6 and 13 at the time of the dissolution decree. During their marriage, the parties had one child, H.A.W., born on October 30, 1995. Respondent had an affair that he admitted to appellant in October 1993, during the couple's engagement. They separated from January 1994 until mid-February 1994. Following their marriage, appellant suspected respondent of numerous other affairs. There is no evidence in the record to support her suspicions.

Both parties are employed. Appellant has dependent health and dental insurance available through her employer. Respondent has medical insurance for himself available through his employer. Beginning in December 1994, appellant went on medical leave due to stress and suspicions that somebody "was drugging her coffee." Thomas Peterson, M.D., a consulting psychiatrist for the Mental Health Division of the Northwest Medical Center, attributed her psychological problems to the Depo-Provera injections she was receiving at that time.

Respondent moved out in January 1995. He testified that he separated from appellant because she kept accusing him of engaging in affairs. Shortly after respondent moved out, in February 1995, appellant discovered that she was pregnant. Appellant visited respondent at his trailer to inform him of the pregnancy. He did not move back in with her until April 1995. The couple sought counseling from their pastor.

During the birth of one of appellant's other children, appellant's bowel was cut and she underwent major surgery. She testified that during her pregnancy with H.A.W., she was concerned for her health and about the parties' marital problems.

A few days after H.A.W. was born, appellant and respondent went on a 10-day hunting trip. They left H.A.W. with Reba Herr (Herr), respondent's sister. After appellant returned to work, Herr cared for H.A.W. during the week, and the parties cared for him on weekends and vacations. The parties dispute the reason for this arrangement. Appellant claimed it was to protect H.A.W. from the cold, and respondent claimed it was because appellant needed her sleep at night. Respondent testified that he went along with the arrangement to save his marriage. Respondent stopped by to visit H.A.W. sometimes during the week, but appellant did not.

The parties separated in March 1996. Appellant had custody of H.A.W. from the time of the parties' separation until April 1996, when temporary custody was awarded to respondent.


I. Custody

When reviewing child custody determinations, the scope of appellate review is limited to whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). The trial court has the best opportunity to observe the witnesses and assess their credibility. See Minn. R. Civ. P. 52.01 (due regard shall be given to opportunity of trial court to judge credibility of witnesses). The focal point of any custody determination is the child's best interests in view of statutory factors set forth in Minn. Stat. § 518.17, subd. 1 (1996). See Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993) (discussing 1992 version of statute), review denied (Minn. Oct. 28, 1993). Although the trial court must consider all of the statutory factors, the trial court does not commit reversible error by failing to make a specific finding with respect to each factor. Nazar, 505 N.W.2d at 633 (stating that the court need not make a specific finding as to each factor).

Appellant contends the district court abused its discretion by finding the best interests of H.A.W. are served by awarding sole physical custody to respondent, subject to appellant's reasonable visitation.[1] We disagree. The trial court considered in detail the statutory factors listed under Minn. Stat. § 518.17, subd. 1, made specific findings with respect to pertinent factors, and adopted the recommendation of the guardian ad litem. Most of the findings indicate that the trial court's decision was a close call and both parties could effectively parent the child.

16. When the child has been in the custody of the [appellant] she has been the primary caretaker for the child. When the child has been in the custody of both parties the [appellant] has provided the majority of the day to day care, but the [respondent] has also provided a substantial amount of care during those times.

Several findings support the trial court's decision in favor of respondent: (1) the behavior of appellant has been unstable in that she has accused her husband of affairs without any factual basis; (2) when the child was in the care of respondent's sister, respondent would visit the child regularly and appellant had little contact with the child; and, most importantly, (3) the guardian ad litem, who spent more than 45 hours interviewing the parties and their references, recommended that respondent be awarded sole physical custody, noting that appellant would frequently call to degrade respondent and his care of the child and to sway the recommendation of the guardian ad litem. The trial court's findings are supported by the record.

In light of the trial court's findings, taken as a whole, and the Guardian Ad Litem's recommendation that sole physical custody be awarded to respondent, we cannot conclude that the trial court's best interests finding was clearly erroneous.

II. Child Support

The trial court has broad discretion with respect to the support of children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A trial court abuses its discretion by coming to a conclusion that is against logic and the facts in the record. Freking v. Freking, 479 N.W.2d 736, 740 (Minn. App. 1992).

Ordinarily, child support is calculated according to statutory child support guidelines. See Minn. Stat. § 518.551 (1996) (setting forth guidelines for child support). Under the guidelines, the court shall determine a specific dollar amount by multiplying the obligor's net income by the appropriate percentage. Minn. Stat. § 518.551, subd. 5(b). In setting child support, the trial court shall, in part, take into consideration the earnings, income, and resources of the parents and the needs of the children to be supported. Minn. Stat. § 518.551, subd. 5(c). The only statutory findings required by the trial court are the amount of the obligor's income used as the basis for the guidelines calculation and "any other significant evidentiary factors." Minn. Stat. § 518.551, subd. 5(i).

Appellant contends that the trial court erred by setting child support without considering the reasonable needs of appellant's children from a previous marriage. We agree. Where the best interests of two older children may be jeopardized to serve the interests of one child, it may not be just to enforce a rigid and mechanical application of the guidelines.

The trial court made the following findings with respect to the earnings, income, and resources of the parties: (1) respondent has a net monthly income of $1,221.11; (2) appellant has a net monthly income of $1,173.43; (4) appellant receives child support payments of approximately $400 per month for the two children of her prior marriage; and (5) appellant receives an annual employment bonus, amount unspecified. With respect to reasonable monthly expenses, the trial court found that respondent and Hunter have need of $1,578.11 and appellant and her two older children have need of $1,593.00. Thus, in the absence of any child support award, respondent's reasonable monthly expenses for himself and H.A.W. exceed his monthly income by $357 and appellant's income approximately balances her needs and the needs of her two older children.

The trial court properly made findings as to the earnings, income, and resources of the parents and the needs of the children to be supported. The trial court's findings, however, indicate that the reasonable needs of appellant's older children will not be met if she has to pay $293 monthly in child support. The child support award could negatively impact the older dependent children of appellant.

Appellate courts have, in the past, refused to uphold a rigid adherence to the guidelines where the best interests of four children were jeopardized to serve the best interests of a single child. See Mancuso v. Mancuso, 417 N.W.2d 668, 672 (Minn. App. 1988) (rigid adherence to guidelines will not be upheld where best interests of four children will be jeopardized while best interest of one child is served); see also Linderman v. Linderman, 364 N.W.2d 872, 875 (Minn. App. 1985) (holding that "guidelines are not to be applied mechanically").

In considering guideline deviations where the obligor has children in multiple households, it is not always reasonable to mechanically favor prior children (we note the obvious--also, prior children should not be "mechanically favored" over subsequent children. The best result for multiple households with minor children is a fair and even-handed approach to all children dependent on one or more obligors for their support). Bock v. Bock, 506 N.W.2d 321, 325 (Minn. App. 1993); see also D'Heilly v. Gunderson, 428 N.W.2d 133, 136 (Minn App. 1988) (noting deference in guidelines to prior support obligation); County of Ramsey v. Faulhaber, 399 N.W.2d 617, 619 (Minn. App. 1987) (holding that obligor may not avoid support obligation by voluntarily incurring new liabilities, including obligations to second family). We realize the subsequent children issue addressed by the court in Bock is not identical to the situation in this case. In Bock, this court addressed modification of an earlier child support award to consider the needs of an obligor's subsequent children. Bock, 506 N.W.2d at 324. Here, appellant's earlier support obligation was to provide for her prior children's needs in her home, not to pay child support. Further, the issue here is an initial child support award, not modification of an earlier award. But a similar concern that subsequent children not be unduly favored over prior children applies. See Mancuso, 417 N.W.2d at 673 (deeming it unacceptable that children of an earlier marriage "be adversely affected as a result of blind adherence to statutory 'guidelines'").

In Mancuso, this court reversed the trial court's award of child support and instructed the court, on remand, to take into consideration the needs of the obligor's older children from a previous marriage in setting support for the parties' child. Id. at 676. Consistent with its own findings, the trial court was obligated to give intensive consideration to the obligor's existing responsibility to support his other children. Id. at 672. The decision was founded on concern that rigid adherence to the guidelines would create hardship for the obligor's other children. Id. at 673. Likewise, the trial court in this case failed to address appellant's obligation to care for her older children. In the absence of findings addressing this concern, it appears this support award could result in undue hardship for appellant's older children.

We remand for reconsideration of appellant's obligation to support her two older children from a prior marriage. We are not "mandating" that the trial court lower appellant's child support obligation. We leave a fair resolution of this matter to the trial court's discretion.

We do reject appellant's contention that the trial court erred in requiring her to pay dependent medical and dental insurance. The trial court found that respondent does not have dependent medical or dental insurance available to him through his employer. Although the record indicates that respondent has medical insurance available for himself through his employer and that he was ordered to keep in effect all medical insurance covering H.A.W. as of April 17, 1996, there is nothing in the record to indicate that respondent presently has dependent medical or dental insurance available through his employment or that respondent has a "better" plan. See Minn. Stat. § 518.171, subd. 1(a)(2) (1996) (requiring party with "better" group dependent plan to name child as beneficiary).

Affirmed in part, reversed in part, and remanded.

LANSING, Judge (concurring specially).

I concur in the majority's affirmance of the custody determination. I also concur in reversing and remanding the child support amount, but for reasons other than those stated by the majority. I would reverse and remand because the district court's calculations of income did not take into account the disparity of the parties' monthly tax withholding (Larry Wallace - $108.40; Kayleen Wallace - $24.85), the effect of allowing Larry Wallace the tax exemption for the parties' child, and the undisputed evidence that the child support included in Kayleen Wallace's income had not been fully or regularly paid.

[ ]1 Although respondent has failed to submit a brief, Minn. R. Civ. App. P. 142.03 provides that in such circumstances, "the case shall be determined on the merits."