This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re the Marriage of:

Jennifer A. Wood,

f/k/a Jennifer A. Hoy, petitioner,



Patrick J. Hoy,


Filed April 13, 1999


Holtan, Judge[*]

Dakota County District Court

File No. F687524320

David J. Hvistendahl, 311 South Water Street, P.O. Box 651, Northfield, MN 55057-0651 (for respondent)

Mark A. Olson, 2605 East Cliff Road, Burnsville, MN 55337 (for appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Holtan, Judge.



Appellant Patrick Hoy challenges the district court's order modifying his child support obligation. Hoy argues the district court erred by: (1) not deducting his vehicle and cellular expenses from his monthly income, (2) not averaging his income over the last three years, and (3) not abating child support payments during the period that the parties' child is visiting him.


On June 27, 1988, pursuant to a stipulated decree, the marriage of appellant Patrick J. Hoy and respondent Jennifer A. Wood, formerly known as Jennifer A. Hoy, was dissolved. The district court awarded Wood sole physical custody of the parties' minor son. It granted Hoy liberal visitation, which he exercised every other weekend.

In July 1998, Wood moved for an order allowing her to move with the parties' minor child to Texas. She also sought to modify visitation because of the move and to increase child support payments. At the time the motion was brought, Hoy was required to pay $485 per month in child support.

The district court heard the motion on July 22, 1998. Because school was starting in Texas, the court issued an order regarding the move and visitation, but reserved the issue of the modification of child support pending Hoy's submission of income documentation. On September 18, 1998, after Hoy submitted copies of his W-2s and most recent pay stubs, the court heard arguments on the issue of the modification of child support. Subsequently, it issued a supplemental order in which it increased Hoy's child support payments to $911 per month.

Hoy appeals the district court's supplemental order increasing his child support payments.


The decision to modify child support lies within the broad discretion of the district court and will not be reversed on appeal unless it is clearly erroneous and against logic and the facts in the record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). When an award of child support has a reasonable and acceptable basis in the facts on record, this court must affirm. Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn. App. 1984).


When calculating income for child support purposes, the district court may, at its discretion, consider an employee's business expenses, including those related to travel and meals. Keil v. Keil, 390 N.W.2d 36, 39 (Minn. App. 1986). Hoy argues the district court abused its discretion by not deducting vehicle and cellular phone expenses he allegedly incurred in the production of his income. The district court found that Hoy had not provided sufficient evidence to support deducting the expenses. We agree.

A child support obligor must, within 30 days of a request, provide the custodial parent with a copy of their most recent federal income tax returns filed with the Internal Revenue Service. Minn. Stat. § 518.551, subd. 5b(b) (1998). Hoy failed to provide copies of his federal income tax returns as Wood requested. Furthermore, on appeal, Hoy has failed to provide this court with transcripts of the hearings. Without Hoy's tax returns or a transcript of the proceedings, we are unable to say the district court abused its discretion by not deducting the alleged vehicle and cellular expenses. See Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (stating obligors will not be heard to complain when they have failed to provide the court with a reviewable record).


The district court found that Hoy's net monthly income was $2,531 in 1996, $2,964 in 1997, and, based on income received through August 11, 1998, $4,326 in 1998. The court further found that Hoy's income increased approximately $600 per month from 1995 to 1996, $433 per month from 1996 to 1997, and $1,362 from 1997 to 1998. Because Hoy sells home improvement products, he alleged the 1997-1998 increase was largely due to the extraordinary number of serious storms and thus the district court abused its discretion by not averaging his income over the last three years. We disagree.

The district court concluded that it was reasonable to attribute one-half of the 1997-1998 increase to extraordinary circumstances and one-half to the normal increases Hoy enjoyed over the previous three years. The court then deducted $681 per month, finding that for support purposes, Hoy's current net monthly income was $3,645. Based on that figure, the district court ordered Hoy to pay child support in the amount of $911 per month pursuant to the guidelines. We conclude the district court's decision is adequately supported by the record and, in particular, its finding that between 1995 and 1996, Hoy's income increased by $600 a month. If Hoy's income goes down substantially next year, he can move for modification of support. See Minn. Stat. § 518.64, subd. 2 (1998) (allowing party to bring motion to modify support for, among other things, substantial increase or decrease in earnings, or substantial increase or decrease in needs of party).


Hoy next argues that the district court erred by not abating child support payments when the parties' son is with him. A district court may abate or reduce child support payments when the noncustodial parent has custody of the child for 30 consecutive days or more. Minn. Stat. § 518.551, subd. 5e (1998) (emphasis added). The statute does not require the court to do so. Id.; see Minn. Stat. § 645.44, subd. 15 (1998) ("`May' is permissive.").

True, as Hoy points out in his brief, where the parties have joint physical custody or where the parties spend an almost equal amount of time with the child, support should be calculated using the Hortis-Valento formula, which takes into account the amount of time each party has the child. See Hortis v. Hortis, 367 N.W.2d 633, 635-36 (Minn. App. 1985) (holding parties with joint custody should pay child support when other party has custody of children); Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986) (same, but applying principle in all joint custody cases unless reasons for not applying formula exist), review denied (Minn. June 30, 1986); see also Tweeton v. Tweeton, 560 N.W.2d 746, 748-49 (Minn. App. 1997) (applying formula in cases where one party has sole physical custody but other party has child approximately 50% of time pursuant to visitation schedule), review denied (Minn. May 28, 1997). But as this court stated in Tweeton, the method of calculating child support in such cases is not based on the legal designation of the custody arrangement, rather it is based on the fact that both parties have custody of the child roughly half of the time. Id. Here, the visitation schedule provides that Hoy gets visitation every other Thanksgiving break, half of the winter break, during spring break, and for seven weeks during the summer vacation. The total amount of time the child is with Hoy is thus comparable to the total amount of time he had before the modification of visitation, which was approximately every other weekend.


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