may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Elaine Kay Machovsky,
f/k/a Elaine Kay Malarkey, petitioner,
Kenneth Thomas Malarkey,
Filed August 17, 1999
Hennepin County District Court
File No. 218433
Becky Toevs Rooney, 510 Marquette Avenue, Suite 700, Minneapolis, MN 55402 (for respondent)
Kerry L. Scott, Dean S. Grau, 3933 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Short, Presiding Judge, Peterson, Judge and Schultz, Judge.
Appellant challenges his child support obligation, alleging he should be exempt from paying support when the children live with him. We affirm.
The judgment dissolving the marriage of appellant Kenneth Malarkey and respondent Elaine Machovsky awarded the parties joint legal and physical custody of their two children. Respondent later received sole physical custody of the children and appellant received visitation, including having the children live with him during the summer. In September 1998, a referee (a) granted father a 50% reduction in support during the summer; (b) amortized this reduction over each year; and (c) set appellant's monthly child support obligation at a sub-guideline amount. The district court affirmed the referee's decision and father appeals.
Appellant alleges he should be exempt from child support during the summer. Absent errors of law, a child support order will be affirmed if it is not an abuse of discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Support may be set at a reduced amount if a noncustodial parent cares for a child for "30 consecutive days or longer." Minn. Stat. § 518.551, subd. 5(e) (1998); see Wolter v. Wolter, 382 N.W.2d 896, 900 (Minn. App. 1986) (noting when children live with noncustodial parent for "substantial period," court may set support to reflect parties' needs and circumstances).
Appellant argues that his support obligation should be set under Tweeton v. Tweeton, 560 N.W.2d 746 (Minn. App. 1997), review denied (Minn. May 28, 1997) which affirmed a district court's use of the Hortis/Valento joint-physical-custody child-support formula where one party had sole physical custody and the other had extensive visitation. Tweeton affirmed the district court's application of the Hortis/Valento formula noting that the custodial arrangement in Tweeton was "similar" to the arrangements in Hortis and Valento where each parent provided about half of the physical care for the children. Tweeton, 560 N.W.2d at 748-49. Here, the district court did not apply Tweeton and appellant has the children only about 25% of the time. Given these differences, we cannot say the district court abused its discretion by not applying Tweeton here. Indeed, the district court's refusal to grant appellant a pro-rata reduction in his support obligation is not inconsistent with case law. See Murray v. Murray, 425 N.W.2d 315, 317 (Minn. App. 1988) (rejecting obligor's argument that support should reflect number of days he had custody of children). Because the district court set child support in an amount that considered the parties' earnings, the custody arrangement, and the children's needs, and because the district court's ruling is not inconsistent with case law, we cannot say that appellant's support obligation is an abuse of the district court's discretion.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals pursuant to Minn. Const. art. VI, § 10.