This opinion will be unpublished and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:
Charon Kae Scholtes, petitioner,


Richard A. Scholtes,

Filed December 14, 1999
Anderson, Judge

Faribault County District Court
File No. F2-97-19

Kenneth R. White, Farrish, Johnson & Maschka, 201 N. Broad Street, Suite 200, P.O. Box 550, Mankato, MN 56002-0550 (for appellant)

Troy Gene Timmerman, Wendland Timmerman, 825 East Second Street, P.O. Box 247, Blue Earth, MN 56013 (for respondent)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Anderson, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Charon Kae Scholtes appeals from an administrative law judge’s (ALJ) order denying her motion to modify child support. Because there was no abuse of discretion in not applying the Hortis/Valento formula given the facts of this case, this court affirms the ALJ’s decision.


On April 17, 1993, respondent Richard Scholtes and appellant Charon Scholtes were married. On February 14, 1994, T.S., their only child, was born. On January 7, 1998, following a contested dissolution proceeding, their marriage was dissolved. Respondent was awarded custody of T.S. and appellant was granted visitation on alternate weekends, one overnight stay per week and two weeks of vacation during the summer. Holidays were alternated between appellant and respondent. Consistent with the Minnesota statutory guidelines, appellant was also required to pay $282 per month in child support.

On January 8, 1998, appellant filed a motion for amended findings and in the alternative, for a new trial. This motion was denied. Thereafter, appellant and respondent entered into an agreement. Respondent stipulated to one additional overnight visitation with appellant on Thursday evenings of those weeks when appellant did not have weekend visitation. In addition, respondent agreed to forgive appellant’s child support arrearages of approximately $2,000. In return, appellant stipulated that the additional visitation would not "be interpreted or used to reflect any joint custody arrangement."

On January 27, 1999, appellant filed a motion to modify child support and asked that the Hortis/Valento formula be applied. On March 4, 1999, a judgment was entered denying appellant’s request to modify her child support obligation. The ALJ concluded that there had been no substantial change in circumstances rendering the existing order unreasonable and unfair. Specifically, the ALJ concluded that the Hortis/Valento formula was inapplicable because: (1) appellant did not have joint custody; and (2) appellant does not have T.S. in her custody 39% of the time as she suggested. In addition, written stipulations precluded appellant from seeking modification of the child support.

On March 22, 1999, appellant filed a motion for reconsideration that was denied and appellant now appeals that determination.


An appeal from an administrative hearing under chapter 518 is the same as an appeal from the district court and the same standards of review apply. Lee v. Lee, 459 N.W.2d 365, 368-69 (Minn. App. 1990), review denied (Minn. Oct. 18, 1990). "[A]n order "respecting * * * support may be modified upon a showing" of changed circumstances that "makes the terms unreasonable." Minn. Stat. § 518.64, subd. 2(a) (1998). Decisions relating to modification of child support are within the sound discretion of the district court, and a reviewing court will reverse an exercise of that discretion only when it is based on a "clearly erroneous conclusion that is against logic and the facts on the record." Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).


Appellant asked the trial court for a modification of the existing child support order and argues to this court that the ALJ erred in not applying the Hortis/Valento formula to the facts in her case. The ALJ held that there has been no substantial change in the circumstances rendering the existing order unreasonable and unfair. According to the ALJ the Hortis/Valento formula is inapplicable because appellant did not have joint custody and the facts in the case are insufficient to fall under Tweeton v. Tweeton, 560 N.W.2d 746 (Minn. App. 1997), review denied (Minn. May 28, 1997).

Appellant argues that the Hortis/Valento formula is not limited to those cases where the parties share "joint custody." The Hortis/Valento formula requires a parent who shares joint physical custody to pay guideline child support for the period of time that the other parent has custody of the child. Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985). However, the substance of the arrangement between the parents, not the label, controls the context of the requested custody modification. In Tweeton, appellant was awarded "sole physical custody," but he and respondent reached an agreement where each spent equal time with their child. Tweeton, 560 N.W.2d at 748. This court concluded that the Hortis/Valento formula was applicable in that situation. Id. at 749. Therefore, under Tweeton, the Hortis/Valento formula applies to cases where parents have not been designated "joint custodians" by the court, but act as if they share joint custody.

Under the current custody arrangement, appellant has custody approximately 30% of the time, while respondent has custody 70% of the time. However, appellant argues that her actual share of custody time has been 39% of the total available custody time and that with the additional Thursday visitation, her share will exceed 40%. She suggests that this should be sufficient to allow her to fall within Tweeton, thereby requiring the court to apply the Hortis/Valento formula. Appellant calculates these figures by excluding the time T.S. spends in childcare, which is presently credited to respondent as T.S.’s custodian.

Appellant argues that childcare should be excluded because both parents may be contacted to handle emergencies. She relies on Veit v. Veit, 413 N.W.2d 601 (Minn. App. 1987) for the proposition that parenting begins when the child is picked up at the end of the day after being in someone else’s care, and therefore, childcare should not be considered when computing the percentage of time a child is in the custody of one particular parent. Veit does not stand for this proposition. In fact, there is no Minnesota case law that supports appellant’s claim that time spent in childcare should be excluded for purposes of calculating child support. The parent who is the physical custodian of the child is the responsible parent for purposes of childcare. It is difficult to compute time based on the possibility that the non-custodial parent may be called to assist.

Appellant further contends that public policy supports the exclusion of childcare time from the calculation. She claims that the statutory guidelines exist to provide the children with a "standard of living that they would have had if the marriage had not been dissolved." Letourneau v. Letourneau, 350 N.W.2d 476, 478 (Minn. App. 1984). Appellant notes that including the childcare time makes no sense for several reasons. First, beyond the cost of childcare, neither parent faces additional expense from the childcare obligation. Second, including childcare in the support calculation results in the non-custodial parent paying twice, through childcare and child support. Finally, the legislature’s intent in creating the childcare statute was to ensure adequate childcare through an income-based system and to calculate child support based on time in child care defeats that purpose.

While public policy arguments are interesting and persuasive in some very limited circumstances, "[t]he function of the court of appeals is limited to identifying errors and then correcting them." Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (citation omitted). The statutory guidelines regarding child support are clear and do not exclude childcare time from the calculation. Appellant is asking this court to make this exclusion, thereby changing the law based on public policy. The role of this court is not to change or extend the law; these tasks are reserved to the supreme court or the legislature. Martinco v. Hastings, 265 Minn. 490, 495, 497, 122 N.W.2d 631, 638 (1963) (stating that changes to a statute must be made by the legislature because "the courts cannot supply that which the legislature purposely omits or inadvertently overlooks"); Whalen v. Whalen, __ N.W.2d __, __, 1999 WL 366585, at *4 (Minn. App. June 8, 1999) (stating that where the Domestic Abuse Act fails to state that it does not apply to parties involved in a pending dissolution proceeding and represented by counsel, the court will not impose this restriction on the statute); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987) (stating that the task of extending the laws falls to the supreme court or the legislature, but does not fall to this court).

To illustrate how T.S. is in her custody over 40% of the time, appellant provides a chart of how the time she and respondent spend with T.S. is allocated. To do this she assumes that T.S.’s sleeping and awake-parenting periods are equal. This assumption is unsupported by the record.

The only new change in the custody arrangement is that appellant takes care of T.S. on the Thursday night prior to the weekend when respondent has custody. Appellant takes care of T.S. from five p.m. on Thursday to Friday morning. This change in circumstances is not substantial enough to warrant modification. See Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988) (holding that even when a child lives with the noncustodial parent during the summer, the custodial parent should continue to receive child support because many of the custodial parent’s expenses of running the children’s primary home continue unabated even when support is suspended).

The principles enunciated in Tweeton are of no help to appellant. The decision in Tweeton was fact–specific. There, the court noted that the Hortis/Valento formula is applicable where parents share equally in the parenting of their child, but the court has designated one parent as the sole physical custodian. See Tweeton, 560 N.W.2d at 748. Here, there is no evidence that the parties shared equally in T.S.’s care. Even with the additional visitation, appellant cannot show that she takes care of T.S. approximately 40% of the time without excluding childcare time. However, the law does not support the exclusion of the time the child spends in childcare when calculating child support.

Because the ALJ’s refusal to apply the Hortis/Valento formula was supported by the facts in the record, the conclusion was not clearly erroneous and there was no abuse of discretion.


Appellant also argues that the ALJ erred in concluding that the stipulations barred her from attempting to modify the child support. A stipulation in a family law matter is normally treated as a binding contract. Emerick ex rel Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996). However, "the trial court must not blindly accept and approve a stipulation between the parties in regard to support of their children." Compart, 417 N.W.2d at 662; see also Murray v. Murray, 425 N.W.2d 315, 318 (Minn. App. 1988) (stating that maintenance stipulations are subject to more restraint from modification than child support stipulations). In the absence of abuse of discretion, this court will not disturb a trial court's decision concerning vacation of a stipulation between the parties. Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984).

Respondent argues that appellant stipulated that "[t]he additional visitation shall not be interpreted or used to reflect any joint custody arrangement" and therefore, appellant cannot seek the benefits of a joint physical custodian. The stipulation is an agreement to which appellant is bound. See Emerick, 547 N.W.2d at 112. However, the trial court has the power to modify a stipulation agreement based on the welfare of the minor children. Quaderer v. Forrest, 387 N.W.2d 453, 457 (Minn. App. 1986). In Quaderer, the mother was seeking to increase the father’s child support obligation, whereas here, appellant seeks to reduce her child support. It is not necessarily in the best interest of the child that the non-custodial parent pay less child support. Because appellant’s son is not benefited by a modification of the stipulation, this court need not modify the agreement.

Nevertheless, appellant is not precluded from requesting a downward modification of child support. Appellant’s argument for a reduction in child support does not necessarily implicate the joint custody language of the stipulation. Because Tweeton permits modification of child support even where there is no "joint custody," appellant can seek to modify her child support without arguing that she has joint custody, and therefore did not breach the binding terms of her agreement with respondent. Consequently, the ALJ erred in concluding that the stipulation precluded appellant from seeking modification of her child support payments. Nevertheless, the error is harmless because the ALJ correctly decided that the Hortis/Valento formula was inapplicable to the facts in this case.