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:
Jeffrey A. Hassan, petitioner,
Lynn B. Hassan,
Filed November 24, 1998
Hennepin District Court
File No. 160846
Robert H. Zalk, 5861 Cedar Lake Road, Minneapolis, MN 55416 (for appellant)
Steven L. Belton, Leonard, Street & Deinard, P.A., 150 South Fifth Street, Suite 2300, Minneapolis, MN 55402 (for respondent)
Considered and decided by Crippen, Presiding Judge, Willis, Judge, and Mulally, Judge.
Appellant wife challenges the district court's denial of child support arrears. Respondent husband, in his notice of review, challenges the district court's order that he pay arrearages to appellant for the months of July and August in both 1994 and 1995. Because the district court's findings were not clearly erroneous, we affirm.
Child support is based upon [respondent's] estimated gross income of Forty Thousand Dollars ($40,000.00) per year. [Respondent] shall submit annual tax returns to [appellant], and the child support may be revised so as to comport with the child guidelines if warranted; such revision shall automatically take place, unless otherwise modified pursuant to Minn. Stat. § 518.64. Provided, no revision downward shall be made.
Subsequent to the entry of the decree, respondent informed appellant that his earnings had increased beyond the maximum income to which the guidelines were applied, which at that time was $4,000 net per month. Consequently, respondent began paying child support at the level of $1,200 per month. Thereafter, respondent ceased submitting his annual tax returns to appellant.
Unbeknownst to either party, Minn. Stat. § 518.551, subd. 5, was amended in 1993. The amendment increased the maximum net income to which the guidelines applied from $4,000 to $5,000.
During July and August of 1994 and 1995, respondent had the children with him for summer visitation. In both years, respondent did not pay child support for July and August.
A family court referee applied the 1993 amendment to Minn. Stat. § 518.551, subd. 5, to the parties' 1989 judgment and decree, which had the effect of automatically increasing respondent's child support obligation. The referee then ordered respondent to pay appellant child support arrears for the time period August 1, 1993 through September 30, 1997, including the months of July and August of 1994 and 1995.
On appeal to the district court, the court concluded that appellant was entitled only to arrears for the months of July and August of 1994 and 1995. The court reversed the order for payment from August 1, 1993, through September 30, 1997, concluding that nothing in the language of the judgment contemplated the application of amended guidelines to the parties' agreement. Appellant challenges this reversal and respondent, in his notice of review, challenges the award of arrearages for the four-month period.
A district court's findings will not be set aside unless they are clearly erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).
Arrearages for the period August 1, 1993 through September 30, 1997
The parties dispute whether the child support guidelines that were in effect in 1989 continued to control their own child support provision after Minn. Stat. § 518.551, subd. 5 was amended in 1993.
The district court found:
The language is clear and unambiguous. There is nothing in the words of the agreement that comprehends that changes made in the child support guidelines by the legislature in later years would automatically be incorporated in the parties' agreement.
We agree. The language in the parties' child support provision contemplates prospective changes in respondent's income, not a change in the child support guidelines. Because there is nothing in the language to suggest that the parties agreed to be bound by subsequent changes in the child support guidelines, we need not reach the issue of retroactive application of the support statute. Accordingly, the district court did not err by denying support from August 1, 1993, through September 30, 1997.
Arrearages for July and August of 1994 and 1995
Respondent claims that when the children were with him for summer visitation he should not have had to pay child support. The original judgment expressly provided that appellant would have primary physical custody and respondent would have visitation rights that would include, but not be limited to "one-half of the summer between June and September." The decree does not provide for suspension of child support payments while the children were on summer visitation with respondent.
Respondent claims that his case is similar to Karypis v. Karypis, 458 N.W.2d 129 (Minn. App. 1990), review denied (Minn. Sept. 14, 1990). In Karypis, the husband stopped making child support payments when the children lived with him for extensive periods of time. Id. at 130. The district court concluded that the husband fulfilled his support obligations for these time periods. This court affirmed. Id. at 131.
Respondent argues that this court should apply the same conclusions as those found in Karypis. However, Karypis is factually distinguishable from the instant case. In Karypis, the wife was granted sole custody of four minor children, three of whom later moved in with the husband and remained with him for extended periods of time: one child for 9 1/2 months, one for 22 1/2 months, and the other for 20 months. Id. at 130. In Karypis, the father's care of the children greatly exceeded the level of care anticipated by the decree in this case. Indeed, Karpis has been superceded by a statute, making the relief respondent seeks discretionary with the trial court. See Minn. Stat. § 518.57, subd. 3 (1996) (stating the court "may" deem a support obligation satisfied if a support obligor provides a home for a child); Minn. Stat. § 645.44, subd. 15 (1996) ("[m]ay is permissive").
Hence, the parties anticipated and planned for the children to enjoy extended visits with their father during the summer months. In the absence of specific language in the decree adjusting child support during those visitation periods, respondent had an obligation to pay child support as ordered. See, e.g., Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988) (noting child-related expenses of custodial parent continue, even while the child is on extended summer visitation with the non-custodial parent). The trial court's order that required respondent to pay arrearages for July and August of 1994 and 1995 is not clearly erroneous.
[*]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.