This opinion will be unpublished and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
In Re the Marriage of:
Jon Olaf Evans,
Filed February 10, 1998
Affirmed and motion denied.
Wright County District Court
Susan M. Lach, Jonathan J. Fogel, Messerlie & Kramer, P.A., 1800 Fifth
Street Towers, 150 S. Fifth Street, Minneapolis, MN 55402 (for appellant).
Robert H. Wenner, Reichert, Wenner, Koch & Provinzino, P.A., 501 St.
Germain, P.O. Box 1556, St. Cloud, MN 56302 (for respondent)
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and
Retired judge of the Court of Appeals, serving by appointment
pursuant to Minn. Const. art. VI, § 2.
U N P U B L I S H E D O P I N I O N
This is an appeal from a postdecree judgment modifying child support. The
record supports the district court's finding of a change in circumstances
warranting an increase in the support amount. We affirm the modification but
deny the request for attorneys' fees on appeal.
The August 1995 stipulated judgment dissolving Mande Wash-Evans and
John Evans's marriage provided for joint physical custody of their two
children. The judgment also provided a custody schedule and set Evans's
monthly support obligation at $379 plus half of the children's daycare and
In January 1997 Wash-Evans, pro se, moved for increased support. The
district court found a substantial change in circumstances because Evans did
not exercise his custody rights and responsibilities to the extent anticipated
when the judgment was entered. The court further found that the change made
the original amount of support unreasonable and unfair, and increased Evans's
monthly support obligation to $600. Evans argues (1) that the stipulation of
joint physical custody mandates application of a "cross-award" formula and
negates a finding of changed circumstances; (2) the evidence and findings are
insufficient to support modification; and (3) the notice requesting
modification was inadequate. Wash-Evans requests attorneys' fees on appeal.
D E C I S I O N
Child support may be modified if the moving party shows a substantial
change in circumstances rendering the existing support award unreasonable and
unfair. Minn. Stat. § 518.64, subd. 2(a) (Supp. 1997). When modifying
support, the district court has broad discretion and will not be reversed
absent a clearly erroneous conclusion that is against logic and the facts on
record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).
Unless the facts suggest otherwise, when parties share joint physical custody,
the guidelines should be applied to require each party to pay support during
the time the other party has custody. See Valento v. Valento,
385 N.W.2d 860 (Minn. App. 1986), review denied (Minn. June 30,
1986) (describing joint physical custody support formula); Hortis v.
Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) (same).
The district court ruled that a substantial change in circumstances
occurred after entry of the judgment and decree because Wash-Evans had custody
of the children 85 percent of the time rather than 65 to 70 percent of the time
as expected. Because Evans's support obligation was originally set below the
guidelines amount (calculated by either the sole-custody or
Hortis formula), the change in circumstances required to support
a modification is reduced. See Compart v. Compart,
417 N.W.2d 658, 662 (Minn. App. 1988) (when support is set below guidelines
amount, minor change of circumstances supports modification).
The district court recognized that the parties had stipulated to what was
nominally joint physical custody. But the court declined to calculate support
on a joint physical custody formula because the implementation resulted in a
custodial arrangement that more nearly approximated sole physical custody in
Wash-Evans with visitation in Evans. The district court did not err by basing
the child support on the substance of the custody arrangement or by finding
that a failure to implement the custody arrangement contemplated in the
original judgment can constitute a change in circumstances that warrants an
increased support amount. See Tweeton v. Tweeton,
560 N.W.2d 746, 748 (Minn. App. 1997) (rejecting argument that label of
stipulated custody arrangement governs support calculation), review
denied (Minn. May 28, 1997); see also Hecker v.
Hecker, 568 N.W.2d 705, 709-10 & n.3 (Minn. 1997) (in maintenance
context, failure to attain status assumed by judgment can be substantial change
in circumstances justifying modification).
Evans challenges the district court's finding that Wash-Evans is the
children's physical custodian 85 percent of the time. Although Evans contests
this fact on appeal, he did not request an evidentiary hearing in the district
court. See Minn. R. Gen. Pract. 303.03(d) (absent good cause
shown, motions in family court are decided on the parties' submissions).
Because no evidentiary hearing was requested, the district court was compelled
to resolve the issue based on the contents of the file. See
Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly
erroneous). Wash-Evans presented the 85-percent allocation in the attachment
to her affidavit submitted with her modification motion. She restated it at
the argument on the motion. Wash-Evans maintained that Evans had failed to
comply fully with even the minimum amounts of custodial time that were
incorporated into the stipulation. Evans contends that these arrangements were
not minimums and that any changes were consented to by Wash-Evans. But it is
the province of the district court to resolve conflicting statements.
Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959)
(appellate courts must defer to district court's resolution of fact issues
presented by conflicting affidavits). The record, including the letters and
affidavits, adequately supports the district court's findings of fact.
Evans also claims that the district court's findings do not satisfy
Moylan. Since the Moylan decision, the legislature
has amended the statute to provide that if guidelines support is not awarded,
the district court "shall" make certain findings. See 1991 Minn.
Laws ch. 292, art. 5, §§ 75-78 (amending child support guidelines);
Minn. Stat. § 518.551, subd. 5(i) (1996). The support obligation set by
the district court varies only slightly from the award that would have been set
had the district court applied Hortis, as Evans urged.
See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn.
App. 1985) (refusing to remand for findings in case of de minimis error).
Moreover, the district court's findings show consideration, even if not a
listing, of all relevant criteria in the findings. See Minn. R.
Civ. P. 61 (harmless error to be ignored).
Evans's final claim is that he did not have adequate notice of the
substance of Wash-Evans's claims before the district court hearing. We reject
the claim of inadequate notice. Attached to Wash-Evans's initial motion and
supporting affidavit is a letter to the district court in which she states she
has custody "85 percent of the time[.]" In addition, the district court file
contains a letter in which Wash-Evans repeatedly asserts she is the custodian
85 percent of the time. Evans does not dispute that he received the
letter-notice. See Minn. R. Civ. App. P. 110.01 (defining record
on appeal to include documents filed with the district court). See
Moylan, 384 N.W.2d at 865 (requiring findings in support modification
Wash-Evans seeks attorneys' fees under Minn. Stat. § 518.14,
subd. 1 (1996). Wash-Evans has not alleged that Evans unreasonably increased
the length or expense of the hearing; thus we evaluate the request under the
provision of Minn. Stat. § 518.14, subd. 1, allowing attorney fee awards
based on the obligor's ability to pay and the recipient's need. Although
Wash-Evans's expenses leave her with a monthly deficit, the record indicates
that Evans has a similar deficit. On this record, we decline to award fees on
Affirmed and motion denied.