This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mary Ann Trewartha, n/k/a Mary Ann Garrity, petitioner,
Mark Donald Trewartha,
Filed June 1, 1999
Reversed and remanded
Hennepin County District Court
File No. 205435
Maria K. Pastoor, Pastoor Law Office, Ltd., Suite E-1434, 332 Minnesota Street,
St. Paul, MN 55101 (for respondent)
Michele M. Danielson, Clapp & Erickson, Suite 1450, 386 North Wabasha
Street, St. Paul, MN 55102 (for appellant)
Considered and decided by Short, Presiding Judge, Peterson, Judge, and
U N P U B L I S H E D O P I N I O N
On appeal from an order increasing his child support obligation and
requiring division of stock, Mark Donald Trewartha argues the trial court
abused its discretion by: (1) modifying his child support obligation; (2)
modifying the property division agreement; and (3) awarding attorney fees to
his former spouse. We reverse and remand.
D E C I S I O N
The award of property and child support rests within the broad
discretion of the trial court. Rutten v. Rutten, 347 N.W.2d 47,
50 (Minn. 1984). We will not reverse a property or child support order unless
it embodies a clearly erroneous conclusion. Id. But in the
absence of findings of fact that reflect the trial court's deliberations, we
will reverse and remand for reconsideration and express findings of fact.
Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. 1986).
Trewartha argues the trial court abused its discretion by
miscalculating his income, accepting his former spouse's monthly expenses, and
equalizing the parties' incomes by modifying his child support obligation. We
agree. Because Trewartha and his former spouse shared joint physical custody
of their two children, the calculation of child support first required the
determination of the net income of both parties. See
Tweeton v. Tweeton, 560 N.W.2d 746, 747-48 (Minn. App. 1997)
(discussing joint physical custody arrangement under which each parent pays
half of guideline amount with offset of smaller obligation against larger),
review denied (Minn. May 28, 1997); see also Minn.
Stat. § 518.551, subd. 5 (1998) (explaining calculation of child support
under guidelines). But the trial court adopted, without explanation, the
former spouse's estimation of Trewartha's net monthly income, which included
items such as nontaxable business expense reimbursements, cash withdrawals from
credit cards, and an unsubstantiated estimation of Trewartha's average monthly
income from self-employment. See Minn. Stat. §§
518.54, subd. 6 (1998) (defining income as "periodic" payments, such as wages
and salaries), 518.551, subd 5b(f) (1998) (defining method for establishing
income from self-employment); cf. Gray v. Commissioner of Internal
Revenue, 10 T.C. 590, 597 (1948) (holding reimbursement by employer for
expenses incurred by employee on behalf of employer are not income).
Additionally, the trial court accepted the former spouse's increase in monthly
living expenses without making any findings of fact. See Minn.
Stat. § 518.64, subd. 2 (1998) (requiring changed circumstances to justify
modification of child support); Quaderer v. Forrest, 387 N.W.2d
453, 455 (Minn. App. 1986) (noting evidence supported determination changed
circumstances occurred because mother's living expenses had increased when she
was forced to rent apartment, and day care costs increased from $40 to $220 per
month). Finally, the trial court calculated an upward deviation from the
guidelines- calculated child support stating only that "Petitioner needs
$1,000.00 per month and Respondent can afford to pay $1,000.00 per month."
See Minn. Stat. § 518.551, subd. 5(c), (i) (1998)
(identifying criteria to be considered in calculating upward deviation and
requiring findings of fact); Broas v. Broas, 472 N.W.2d 671, 674
(Minn. App. 1991) (concluding trial court abused its discretion by effectively
equalizing incomes of parties through child support award when trial court
stated that upward departure from guideline formula enabled each household to
meet its needs). Under the circumstances and in the absence of findings of
fact, we conclude the trial court abused its discretion in ordering an increase
of Trewartha's child support obligation.
Trewartha also argues the trial court abused its discretion by
dividing stock he received from his employer while the parties were legally
married. The record demonstrates: (1) Trewartha received between 106 and 141
shares of stock from his employer in 1993 and 1994; (2) the parties were
married, but living separately, during 1993 and 1994; (3) the parties' marital
termination agreement and original judgment and decree did not address the
division of the stock, but awarded retirement funds solely to Trewartha; (4)
the record does not reflect whether the stock was part of a retirement package;
and (5) the trial court estimated 200 shares were accrued during the marriage,
estimated their worth at $7,800, and awarded half to Trewartha's former spouse.
Although the trial court has power to divide property omitted from a prior
property division, in this case, the trial court made no findings of fact
regarding the nature of the stock, whether an equal division comported with the
original property division, and apparently miscalculated the division of that
property. See Minn. Stat. §§ 518.145, subd. 2 (1998)
(permitting reopening of property division for, among other issues, mistake,
new evidence, fraud, and misrepresentation); 518.64, subd. 2(e) (1998)
(permitting modification of property division under Minn. Stat. §
518.145); Kitchar v. Kitchar, 553 N.W.2d 97, 103 (Minn. App.
1996) (holding trial court did not err by concluding property was "marital"
even after couple lived separately while still legally married), review
denied (Minn. Oct. 29, 1996). Given these facts and the absence of
explanatory findings of fact, we conclude the trial court abused its discretion
in ordering an equal division of 200 shares of stock.
Finally, Trewartha argues the trial court abused its discretion in
ordering him to pay his former spouse's attorney fees. The record demonstrates
the trial court did not make findings of fact regarding the payment of attorney
fees and stated only that
Respondent should contribute $1,500.00 toward Petitioner's attorney's fees so
that the increased child support to benefit the children is not consumed by
these attorney's fees.
See Minn. Stat. § 518.14, subd. 1 (1998) (stating trial
court can award attorney fees if fees are necessary for good-faith assertion of
payee's rights, payor has means to pay fees, and payee does not have means to
pay fees); Courey v. Courey, 524 N.W.2d 469, 473 (Minn. App.
1994) (holding trial court abused its discretion in awarding attorney fees
without making specific findings that children's father had ability to pay or
mother was unable to pay). We conclude the trial court abused its discretion
in ordering Trewartha to pay his former spouse's attorney fees.
We reverse and remand for proceedings consistent with this opinion. Because of
our disposition of these issues, we deny the former spouse's motion for
attorney fees incurred on appeal.
Reversed and remanded.