This opinion will be unpublished and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:

Michael Wayne Conlan, petitioner,



Laura Anne Conlan, n/k/a

Laura Anne Lathrop,


Filed June 22, 1999


Willis, Judge

Concurring specially, Crippen, Judge

Ramsey County District Court

File No. F88518499

Richard D. Goff, Roslyn J. Beckman, Richard D. Goff & Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Brian L. Sobol, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Willis, Judge.



Appellant Laura Anne Lathrop (f/k/a Laura Anne Conlan) challenges the district court's (1) modification of respondent Michael Wayne Conlan's child-support obligation; (2) refusal to deviate from the guidelines in setting Lathrop's child-support obligation; and (3) award of attorney fees to Conlan. We affirm.


Lathrop and Conlan's marriage was dissolved in 1986. Lathrop received primary physical custody of the parties' minor children, K.C., M.C., and T.C. Conlan, as the noncustodial parent, paid child support to Lathrop for the minors' care. In 1993, K.C. became emancipated.

In July 1997, M.C. (then age 16) moved in with his father; T.C. (then age 14) remained with her mother. Approximately five months later, Conlan moved for an order (1) formally transferring M.C.'s physical custody to him; (2) modifying his child-support obligation by directing Lathrop to pay child support for M.C. and offsetting this amount against Conlan's child-support obligation for T.C.; and (3) awarding him attorney fees.

In response, Lathrop moved for an order (1) denying Conlan's motion; (2) requiring a custody study because, Lathrop claimed, Conlan's "lax parenting style" was not in M.C.'s best interests; (3) setting Lathrop's child-support obligation for M.C. in an amount below the guidelines, if M.C. remained with Conlan; and (4) awarding her attorney fees.

At the hearing on the parties' motions, Lathrop argued that granting Conlan's motion to reduce his child-support obligation would decrease Lathrop and T.C.'s income by $800 per month and produce a "radical change" in T.C.'s lifestyle. Lathrop also contended that the court could deviate downward from the child-support guidelines in setting her own child-support obligation for M.C. and require her to pay little or no child support because Conlan's income averaged $22,000 per month. Lathrop further argued that, because of Conlan's financial resources, it would be within the district court's discretion to increase Conlan's child support for T.C.

Reasoning that M.C. was old enough to testify at an evidentiary hearing on the custody issue, the district court refused to order a custody study; granted Conlan temporary sole physical custody; and granted the parties leave to request a hearing on the custody issue. The district court further stated that there was an income "cap" above which additional income was irrelevant in determining guidelines child support; determined each party's guidelines support obligation for one child; offset the parties' child-support obligations; and directed Conlan to pay the difference of $675 to Lathrop.

Lathrop subsequently decided not to contest custody. Conlan then moved for an order (1) granting him permanent physical custody of M.C.; (2) modifying his permanent child-support obligation to $675 based on the offset of the parties' child-support obligations; and (3) awarding him $9,694 in attorney fees because of Lathrop's bad faith in resisting modification of custody when M.C. had been living with him. Lathrop again opposed Conlan's motion for child-support modification and for an award of attorney fees and requested reconsideration of her child-support obligation.

After a second hearing, the district court (1) granted permanent physical custody of M.C. to Conlan; (2) reduced Conlan's permanent child-support obligation to $675 (after the child-support offset); and (3) awarded Conlan $2,000 in attorney fees. This appeal follows.


1. Finding of changed circumstances. Lathrop asserts that the district court erred in modifying Conlan's child-support obligation without first finding that a substantial change in circumstances made his existing obligation unreasonable and unfair. We disagree.

The district court has broad discretion in determining child support. Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn. App. 1994). This court will not disturb a district court's child-support determination if it has a reasonable and acceptable basis in fact. Id. Modification is permitted on a showing of:

(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party or the child * * * ; (3) receipt of assistance * * * ; [or] (4) a change in the cost of living for either party * * * , any of which makes the terms [of the original order] unreasonable and unfair.

Minn. Stat. § 518.64, subd. 2(a) (1998). But the district court "must find a substantial change of circumstances making the previous support order unreasonable or unfair before it orders modification." Kuchinski v. Kuchinski, 551 N.W.2d 727, 728 (Minn. App. 1996) (citation omitted). "[A] change in physical custody is normally a change of circumstances that makes an original support order unreasonable and unfair." Buntje, 511 N.W.2d at 481 (citation omitted); see also Ruppert v. Schmidt (In re Custody of A.S.R.), 539 N.W.2d 607, 612 (Minn. App. 1995) (citing cases that hold change in custody is substantial change in circumstances that makes original support order unreasonable and unfair).

Before modifying Conlan's child-support obligation, the district court found:

On November 25, 1997, [Conlan] served and filed a motion to change custody and modify child support based upon a substantial change in circumstances. The parties' son, [M.C.], had been residing full-time with [Conlan] since July 4, 1997. The child has stated his preference to remain in [Conlan's] care, and he has been fully integrated into [Conlan's] home.

This finding shows that the court recognized that the change in physical custody was itself a substantial change in circumstances that rendered the existing order unreasonable and unfair. See Buntje, 511 N.W.2d at 481. Although the district court did not specifically find that the existing order was "unreasonable and unfair," this finding is implicit in the decision to modify Conlan's child-support obligation for M.C. when Lathrop no longer paid for M.C.'s food, shelter, and clothing. Further, when the district court grants a change in legal custody, it is reversible error to refuse either to apply the guidelines or to make findings justifying a deviation from the guidelines. Landa v. Landa, 369 N.W.2d 330, 331 (Minn. App. 1985) (stating that change of legal custody was substantial change in circumstances and that district court erred in refusing to apply, or make findings justifying departure from, child-support guidelines). The district court did not, therefore, abuse its discretion by modifying Conlan's child-support obligation to reflect the change in custody.

2. Determination of child support. Lathrop challenges the district court's failure to deviate downwardly in setting her child-support obligation for M.C. She claims that the district court did not make appropriate findings concerning Conlan's resources and T.C.'s and M.C.'s disparate standards of living. She also asserts that the court erroneously concluded it could not consider Conlan's income above the guidelines cap for support purposes. We are unpersuaded that the district court's determination of Lathrop's child-support obligation is an abuse of discretion.

The child-support guidelines "are a rebuttable presumption and shall be used in all cases when establishing or modifying child support." Minn. Stat. § 518.551, subd. 5(i) (1998). In addition to the child-support guidelines, the district court must consider the parents' earnings, income, and resources; the children's needs; and the standard of living that the children would have enjoyed if the marriage had not been dissolved. Id., subd. 5(c) (1998). The district court does not abuse its discretion in applying the guidelines if the party requesting a downward deviation fails to show that the guidelines child-support determination is unreasonable. Bunge v. Zachman, 578 N.W.2d 387, 390 (Minn. App. 1998), review denied (Minn. July 30, 1998).

In offsetting the parties' child-support obligations, the district court applied a formula used in cases of joint physical custody.[1] Under that formula, each parent pays monthly guidelines support during the months that the other parent has custody, absent a showing that the children's needs require a higher level of support from the parent with the higher income. Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985); see also Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986) (stating that proper method of determining support in joint custody case is to require each party to pay guidelines amount only during months when other party has custody), review denied (Minn. June 30, 1986). The district court may offset the smaller obligation against the larger obligation so that the parent with the higher income pays the net to the other parent. Hortis, 367 N.W.2d at 636.

The district court found (1) Conlan's net income from his base salary was $7,502 per month, noting that this exceeded the amount above which additional income does not result in additional guidelines child support and that Conlan's monthly earnings exceeded his base salary; (2) Conlan's child-support obligation under the guidelines for one child was $1,408.75 per month; (3) Lathrop's net monthly income was $2,934; (4) Lathrop's child-support obligation under the guidelines for one child was $733.60 per month; (5) Lathrop failed to show a basis warranting a downward deviation from the guidelines; (6) Conlan's reasonable monthly expenses for himself and one child were $17,093 per month; and (7) Lathrop's reasonable expenses for herself and one child were $4,541 per month.

In determining Lathrop's reasonable expenses, the district court used, as a starting point, the $5,336 figure that Lathrop represented were her total monthly expenses, which included expenses attributable to both children. The district court deducted the expenses directly attributable to M.C. ($180) and one-half the remaining dependent care expenses ($1,230 x .50 = $615). Lathrop's monthly expenses were determined to be $4,541 ($5,336 - $795 = $4,541). But the district court did not adopt either party's claimed expenses as necessary and reasonable, stating, "Clearly either one of them could get by on a lot less and are very fortunate people to have the things that they have."

It is apparent that the district court did consider, as required by Minn. Stat. § 518.551, subd. 5(c), the standard of living that T.C. would have enjoyed if the marriage had not been dissolved (and which M.C. still enjoyed) and the fact that Conlan's monthly net income was more than the maximum amount considered in determining guidelines child support. The district court's refusal to consider Conlan's income above the statutory cap was not an abuse of discretion because there was no showing that either child had special needs. See Hortis, 367 N.W.2d at 636 (stating guidelines are to be applied absent showing of special needs). Although Lathrop argued that she should pay no child support, M.C. is entitled to support from both parents. See id. at 635 (stating that parents owe equal duty of support). And the district court was not required to make written findings on those factors because it did not deviate from the guidelines. See Minn. Stat. § 518.551, subd. 5(i) (providing that if court does not deviate from guidelines, it need make findings only on obligor's income and other factors "affecting" child-support determination). Moreover, the district court made the required written findings in applying the guidelines. Lathrop has not demonstrated that her child-support obligation under the guidelines is unreasonable.

3. Award of attorney fees to Conlan. An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (1998), may be based on the impact that a party's behavior has on the cost of litigation, regardless of the parties' relative financial resources. Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991). A district court's decision on fees will not be disturbed absent a clear abuse of discretion. Id.

The district court found that Lathrop's "unreasonable position" in a "simple and common matter" had needlessly protracted litigation, causing both parties to incur attorney fees. Lathrop argues that the finding that she had been unreasonable is not supported by the record. But the record shows that, although Lathrop withdrew her opposition to change of custody after the court found that M.C. was competent to testify concerning his parental preference, she continued to oppose modification of Conlan's child-support obligation after Lathrop no longer paid for M.C.'s care. In addition, Lathrop argued for increased support for T.C., although her written motion had requested only a downward deviation in her child-support obligation for M.C. The award of attorney fees to Conlan was not an abuse of discretion.

4. Lathrop's attorney fee request. Lathrop claims in her reply brief that the district court erred in failing to award her attorney fees based on need. Because she did not raise this issue in her initial brief, we decline to address it. See McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (stating that issues not raised in initial brief are waived and cannot be revived in reply brief), review denied (Minn. Sept. 28, 1990).


CRIPPEN, Judge (concurring specially)

The exactness of child support law is burdensome for the courts but can not be grudgingly applied without sacrificing substantial justice interests. In circumstances like those in this case, this court should normally require a further effort of the trial court to wrestle more particularly with the appearance of injustice in its determinations that appellant had "reasonable" monthly expenses of $4,541, that she had income of $2,934, and that respondent's $1,408.75 child support award nevertheless should be reduced by $733.60, representing a child support award in favor of respondent.[2] This approach provides appellant with $3,609 toward expenses of $4,541 while respondent enjoys disposable monthly income of $6,827 after paying child support.

In the circumstances of this case, because of the short duration of the child support award to respondent (the son in his custody turned age 18 in November 1998 and is now graduating from high school), the trial court's order was not outside the broad parameters of its discretion in determining the child support issues.

[1] Although this case involves split, rather than joint, physical custody, the formula is virtually the same. See Sefkow v. Sefkow, 427 N.W.2d 203, 216-17 (Minn. 1988) (determining child-support obligation in case involving split physical custody).

[2] On the record, the trial court observed misgivings about the reasonableness of each parent's expenses. This general concern does not substitute for specific findings on reasonable and necessary expenses. Whenever it sets child support or decides whether to deviate, the trial court "shall take into consideration," in addition to the guidelines, factors that include the needs and resources of the children and all "resources" of the parents. Minn. Stat. § 518.551, subd. 5 (c) (1998). The determination of these resources should take into account sources of revenue and offsetting, reasonable-and-necessary expenses. Appellate precedents demand that trial court findings address mandatory statutory criteria that are put in issue. See, e.g., Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn. 1986); Rosenfeld v. Rosenfeld, 311 Minn. 76, 82, 249 N.W.2d 168, 171 (1976).

The findings topic also is addressed in Minn. Stat. § 518.551, subd. 5 (i) (1998), discussed in the majority opinion. If the court does not deviate, this subsection mandates written findings on the obligor's income--by itself an adequate basis for applying the guidelines--and "any other significant evidentiary factors affecting the determination of child support." The needs of the parties have been put in issue in this case, as has appellant's request for a downward deviation, and the court must, under subsection (i), make pertinent findings of fact.

If a court decides to deviate, subsection (i) also involves a specific demand for findings on subsection (c) considerations and the best interest of the child. This specific requirement does not take away from the implications of the mandate for cases where a proposed deviation is denied--or from the historical judicial demand for findings on determinative considerations.