This opinion will be unpublished and

may not be cited except as provided by

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




Hennepin County,


Tracy Ann Rothi,



Derek James Knudson,


Filed June 1, 1999

Affirmed in part, reversed in part, and remanded

Klaphake, Judge

Hennepin County District Court

File No. P025146

Amy Klobuchar, Hennepin County Attorney, Thomas L. Aarestad, Assistant County Attorney, C-2300 Government Ctr., 300 S. Sixth St., Minneapolis, MN 55487 (for respondent county)

Tracy Ann Rothi, 330 Carlson Parkway, Apt. 205, Minnetonka, MN 55305 (respondent pro se)

Allen R. Desmond, Hance & Iverson, 941 Hillwind Road N.E., Ste. 301, Minneapolis, MN 55432 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Foley, Judge.[*]



Derek James Knudson appeals from amended orders issued by an administrative law judge (ALJ) that modify his child support obligation and order him to pay to respondent Tracy Ann Rothi a total of $732 per month, which represents $473 in child support, $53 to reimburse respondent for medical and dental insurance, and $206 for his portion of child care expenses. Because the ALJ did not abuse its discretion by applying the child support guidelines or awarding appellant the tax exemption for the child, we affirm those decisions. Because the ALJ failed to consider that day care expenses for this seven-year-old child decrease during the school year, we reverse its calculation of appellant's child care expense contribution and remand for additional findings consistent with this opinion.


1. Appellant contends that the ALJ abused its discretion by refusing to deviate from the child support guidelines. The guidelines are a rebuttable presumption, and a court may deviate only after making explanatory findings that address, among other things, the income and resources of the parents and the needs of the child. Minn. Stat. § 518.551, subd. 5(c), (i) (1998); VerKuilen v. VerKuilen, 578 N.W.2d 790, 792 (Minn. App. 1998).

Appellant argued that deviation was warranted in this case because his income is insufficient to meet his monthly expenses and his increased child support obligation. The ALJ rejected appellant's estimate of his monthly expenses, which was basically one-half of the total household expenses for himself and his new wife, reasoning that appellant's new wife earns significantly more than he does, and thus appellant has increased resources available to him. This was not improper or unreasonable.

Appellant also argued that his increased child support obligation would make his financial situation difficult because he and his new wife have just purchased a home and want to start their own family. Appellant's objections are based solely on the adverse effect it will have on his current family's lifestyle and financial plans. This is an inappropriate reason to deviate from the guidelines. Huston v. Huston, 412 N.W.2d 344, 347 (Minn. App. 1987). We therefore affirm the ALJ's refusal to deviate from the guidelines.

2. Appellant contends that the ALJ abused its discretion by failing to award him the tax dependency exemption for the child. As a general rule, the custodial parent is entitled to the tax exemption. Gerady v. Gerardy, 406 N.W.2d 10, 14 (Minn. App. 1987). Because appellant did not request this exemption until he brought his post-hearing motion and did not present any evidence on the consequences of allocating this exemption either at the hearing or in his post-hearing motion, the ALJ did not abuse its discretion on this issue.

3. Minn. Stat. § 518.551, subd. 5(b) (1998) sets out the following formula for determining an obligor's contribution to child care costs: (1) the average monthly child care expenses are determined; (2) that amount is reduced by 25 percent; and (3) the remaining amount is allocated between the parents based upon their respective net monthly incomes after transfer of child support payments. When child care costs fluctuate throughout the year, the court should determine a monthly average. Klingenschmitt v. Klingenschmitt, 580 N.W.2d 512, 514 (Minn. App. 1998) (statute plainly contemplates definite amount of monthly child care expense payments based upon monthly average, rather than variable amounts).

Based on available evidence in June 1998, the ALJ calculated the child care costs based on the cost of full-time child care during the summer. In his motion for reconsideration, appellant argued that his contribution should be recalculated based on the fact that the child would enter school in September 1998 and that respondent's child care costs would decrease during the school year. In its August 1998 amended orders, the ALJ refused to recalculate the child care cost contribution because appellant failed to submit any written evidence on the issue.

The ALJ treated appellant's motion to reconsider as a motion for amended findings and "reopened" the record for additional argument and submissions from the parties. Under these circumstances, the ALJ abused its discretion by refusing to consider appellant's arguments regarding the reduced child care costs during the school year. See Minn. R. Civ. P. 52.02 (court may amend findings "[u]pon motion of a party"), 59.01 (on motion for new trial in action tried without jury, court may take additional testimony and amend findings). By so doing, the ALJ ignored the fact that child care costs for a school-age child fluctuate during the year.

We therefore reverse the ALJ's calculation of appellant's child care cost contribution and remand for additional findings. On remand, the ALJ is directed to calculate the total annual child care costs and divide that total by 12 to determine a monthly average. The statutory formula should then be applied to determine appellant's contribution. The ALJ is further directed to make this contribution retroactive to April 1, 1998, the date appellant was first served with this motion to modify his child support obligation.

Affirmed in part, reversed in part, and remanded.

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