This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Gregory Allen Larson, petitioner,



Wendy Lee Sturm,

f/k/a Wendy Lee Larson,

f/k/a Wendy Lee Kiewiet,


Filed December 22, 1998

Affirmed in part as modified,

reversed and remanded in part

Crippen, Judge

Olmsted County District Court

File No. F9952646

Jeffrey D. Bagniefski, Bagniefski & Murakami, P.L.L.P., 423 Third Avenue S.E., P.O. Box 189, Rochester, MN 55903 (for appellant)

Theresa A. Capistrant, Peterson, Fishman, Livgard, & Capistrant, P.L.L.P., 3009 Holmes Avenue South, Minneapolis, MN 55408 (for respondent)

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



This appeal addresses the sufficiency of the trial court's 1997 response to appellant Gregory Larson's motion to reduce his child support obligation. We reverse and remand. The appeal also challenges the subsequent order of a different trial judge, especially disputing that order's alteration or interpretation of the parties' original co-parenting arrangement by declaring that respondent Wendy Sturm was the primary physical custodian of the parties' child. We affirm that order as modified to state only that the original arrangement does not designate appellant as a joint physical custodian.


The parties' marriage was annulled in 1995. In 1997, immediately after his support obligation was increased, appellant moved to decrease the obligation because he had been accepted into an advanced-degree program that would cause a short-term decrease in his income but that he expected would substantially increase his earning ability in the future.

Concerned that appellant's motion followed so closely after the earlier modification, the trial court announced at a 1997 hearing that appellant should "forget it" and that the court was "not going to deal with that anymore." Told of appellant's new schooling opportunity, the court said that the education could be pursued but "I want that child support paid." After appellant further asserted his position, the court responded, "No, I'm not going to--I'm not going to treat that." In a later written order, the trial court denied appellant's motion.

After retirement of the judge who ruled on appellant's 1997 motion, appellant moved for amended findings, asserting that the prior judge failed to allow proper litigation of the support issue. The trial court denied appellant's motion, ruling the prior judge had denied the 1997 motion on the merits. Responding to ongoing arguments of the parties, appellant's argument that he was a joint physical custodian and respondent's argument that she was the primary physical custodian, the court declared, without related findings of fact, that respondent had "primary physical custody" of the parties' child. The 1995 judgment provided that "the parties shall have a co-parenting schedule with the minor child, though [the child's] primary residence shall be with the [respondent]." The judgment added a specific caretaking schedule providing for, among other things, appellant's care of the child on five days and five nights of each two-week period.


Child support

Appellant contends that he made a bona fide arrangement for a better education and should be excused from some of his support obligation while in school.

A court must impute income to a parent found to be voluntarily underemployed. Minn. Stat. § 518.551, subd. 5b(d) (Supp. 1997). A parent is not voluntarily underemployed if his reduced earnings represent "a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child." Minn. Stat. § 518.551, subd. 5b(d)(2) (Supp. 1997).

As the second trial judge determined, the 1997 court order purported to dispose of appellant's motion on the merits. Nevertheless, as appellant argues, the trial court in 1997 did not weigh the evidence and make findings of fact. See Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn. 1986) (requiring specific findings regarding factors considered in making child support award). Although the 1997 order states "there is no reason to modify [appellant's] child support obligation," the court did not make findings on (a) whether appellant's education plan was a bona fide career change, outweighing its adverse effects on the welfare of the child; (b) the parties' current financial circumstances; (c) the temporary and permanent effects of appellant's plan; and (d) whether there was a substantial change in circumstances rendering the existing award unreasonable and unfair--a finding required by Minn. Stat. § 518.64, subd. 2 (Supp. 1997).

At the 1997 hearing the trial court stated (a) its concern that appellant "take into account the needs of the child" and (b) its thought that "the reason [appellant's] got a problem here is that he hasn't agreed with the Court's [prior] order." Although these conclusory observations show proper concern for payment of support and appellant's good faith in dealing with the obligation, they do not constitute a finding of whether appellant has a bona fide education plan and whether the value of that plan outweighs its adverse effect on the child. See Minn. R. Civ. P. 52.01 (explaining when trial court's oral statements can be findings of fact). The court's observations suggest that the prior order provided for a reasonable amount of support but do not show consideration of whether appellant's education plan renders that award inappropriate.

Absent adequate trial court findings on the subject and without speculating, we cannot address respondent's argument that the 1997 ruling is premised on facts shown in a previous proceeding. See Franzen v. Borders, 521 N.W.2d 626, 630 (Minn. App. 1994) (stating speculation in child support context is improper). The 1997 order denying appellant's motion to modify child support is reversed and the matter is remanded for further proceedings. On remand, the trial court shall have discretion regarding whether to reopen the record.

Child custody

On one occasion in earlier proceedings, in opposition to a suggested caretaking plan, appellant asserted that he was a joint physical custodian under the 1995 judgment. He repeated the assertion during the child support proceedings, suggesting his good will in paying support without regard for reductions and offsets that the law permits for a joint custodian. See Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986) (setting out formula for calculating support when parties share joint physical custody), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) (same). When she heard of the assertions, respondent persuaded the trial court in 1998 to resolve the question by declaring that respondent was the primary physical custodian.

If, under the judgment, appellant were designated as a joint physical custodian, the Hortis/Valento formula could have an impact on his support obligation. Thus, if that issue were before the court, the question of whether appellant was a joint physical custodian would be a justiciable issue. In the absence of the labeling that appellant prefers, or an equal sharing of caretaking time, the existing precedents do not entitle him to the benefits of the Hortis/Valento calculation. See Valento, 385 N.W.2d at 862-63 (applying formula to a designated joint custodial parent who cared for a child on 12 of every 28 days); see also Tweeton v. Tweeton, 560 N.W.2d 746, 748-49 (Minn. App. 1997) (applying Hortis/Valento formula to non-custodial parent who, unlike appellant, spent equal time caring for child), review denied (Minn. Apr. 8, 1997). Thus, we affirm the trial court's reading of the judgment insofar as the court declared what is unquestionable, that the judgment did not declare appellant a joint custodian.

The issue becomes problematic because, in addition to ruling that appellant was not a joint physical custodian, the trial court also declared respondent a primary physical custodian. The parties dispute whether the trial court's declaration that respondent is the child's primary physical custodian is a modification or a clarification of the 1995 judgment. However one characterizes the determination, it is not needed to resolve whether appellant was entitled to the benefits of the Hortis/Valento calculation or any other pending dispute of the parties. The trial court's declaration that respondent is the child's primary physical custodian was inappropriate because it was made in the absence of a justiciable controversy. See Izaak Walton League of America Endowment, Inc. v. State, Dep't of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977) (stating: (a) "[t]he existence of a justiciable controversy is prerequisite to adjudication[;]" (b) "[t]he judicial function does not comprehend the giving of advisory opinions[;]" (c) "[n]o controversy is presented, absent a genuine conflict in the tangible interests of opposing litigants[;]" and (d) "[b]ecause the existence of a justiciable controversy is essential to [an appellate] court's exercise of jurisdiction, it may always raise the issue on its own motion") (citations omitted).

The designation of respondent's status is especially problematic because it may have an impact on the parties' rights in issues not currently before the court. See, e.g., Ayers v. Ayers, 508 N.W.2d 515, 519-20 (Minn. 1993) (addressing removal of child from state by parent with whom child has "primary residence" but whom judgment said was joint physical custodian). Therefore, while we affirm the portion of the trial court's ruling stating appellant is not a joint physical custodian, we also modify the ruling so that it does not designate respondent to be the child's primary physical custodian.

Clerical error

Appellant asks for review of an order of the court for his payment of certain arrearages, noting that they were erroneously stated as "maintenance arrears." It is undisputed that this reference is a clerical error and that the trial court has previously acted to correct the error. The issue requires no further review by this court. See Minn. R. Civ. P. 60.01 (clerical errors may be corrected at any time); Minn. R. Civ. P. 61 (harmless error to be ignored).

Attorney fees on appeal

Respondent seeks attorney fees on appeal. She has failed to show cause for an award of either need or conduct-based fees. See Minn. Stat. § 518.14, subd. 1 (1996) (listing requirements for need and conduct-based attorney fees). Also, because she has not furnished the special motion required by Minn. Stat. § 549.211, subd. 3 (Supp. 1997), or the notice required by Minn. Stat. § 518.14, subd. 2(c) (Supp. 1997), she is not entitled to an award of fees under either of those provisions.

Affirmed in part as modified, and reversed and remanded in part.

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