STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-1121

In Re the Marriage of:

Tracy L. Johnson, petitioner,

Respondent,

vs.

Jeffrey D. Johnson,

Appellant.

Filed April 4, 2000

Reversed and remanded; motions granted in part and denied in part

Halbrooks, Judge

Dakota County District Court

File No. F99613689

Mark A. Olson, 2605 East Cliff Road, Burnsville, MN 55337 (for respondent)

Betsy S. Anding, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Willis, Judge, and Halbrooks, Judge.

U N P U B L I S H E D O P I N I O N

HALBROOKS, Judge

Appellant Jeffrey Johnson appeals from the district court’s order increasing his child-support obligation. Appellant contends the district court erred in not applying the Hortis-Valento formula to his modified child-support obligation. Respondent Tracy Johnson requests appellate attorney fees and to strike the information in appellant’s briefs that is outside of the record. Because the district court did not address the applicability of the Hortis-Valento formula for calculating child support, we reverse and remand with directions on this issue. We also grant respondent’s motion to strike, but deny her motions for sanctions and appellate attorney fees.

FACTS

Appellant and respondent’s marriage was dissolved on May 14, 1997. The parties stipulated to joint legal custody of their son, D.J., and that respondent would have primary physical custody. Under the stipulation, appellant received the following visitation schedule: every other weekend from Friday at 4:30 p.m. to the following Monday at 7:30 p.m.; every other Wednesday from 4:30 p.m. to the following Friday at 7:30 a.m.; and every other Monday from 4:30 p.m. to the following Wednesday at 7:30 a.m. Holidays and summer vacations were to be worked out between the parties. This schedule gave respondent 58% of the time with D.J. and appellant 42% of the time. Each party has D.J. overnight 14 of every 28 days.

At the time of the parties’ dissolution, appellant was earning a net monthly income of $2,326.74. Respondent was earning a net monthly income of $1,087.16. The trial court found that appellant had monthly expenses of $1,950 and respondent had monthly expenses of $1,925. Appellant’s child-support obligation was set at $581.68 per month, an amount equal to 25% of his net monthly income.

Appellant contends that after the entry of the judgment and decree, the formal physical-access schedule set forth in the decree was not followed. He argues that, excluding the time D.J. was with appellant’s parents, appellant cared for D.J. approximately 55% of the time in 1997 and 54% of the time in 1998.

Respondent does not dispute that appellant’s time with D.J. increased after the entry of the dissolution decree, but she contends the increase was temporary and occurred as a result of her significant health problems. Respondent also contends that any additional visitation time was requested by appellant, rather than offered by respondent, and it was respondent’s understanding that the additional visitation time was to allow D.J. to spend time with appellant’s parents.

In August 1998, appellant proposed a stipulation granting him physical custody of D.J. and reserving the issues of child support and respondent’s contribution toward daycare expenses. About the same time, respondent’s daycare obligation increased to $670.80 per month and appellant’s 1997 W-2 indicated his income had increased.

Respondent rejected appellant’s custody and support proposal, and subsequently served a motion on appellant requesting that appellant’s child-support and daycare obligations be increased and that appellant be required to pay her attorney fees. Appellant served a responsive motion requesting that his child-support obligation be set in accordance with the Hortis-Valento formula for calculating child support. The child-support modification request was heard by the district court on February 26, 1999.

The district court found respondent’s net monthly income had increased from $1,087.16 to $1,251 and appellant’s net monthly income had increased from $2,326.74 to $3,228.82. The district court calculated child support by multiplying appellant’s net monthly income by 25% and set appellant’s child-support obligation in the amount of $807.20 per month effective May 1, 1999. The district court did not address whether use of the Hortis-Valento formula was appropriate.

This appeal followed. On appeal, respondent filed motions to strike portions of appellant’s briefs and for attorney fees.

D E C I S I O N

1. Motion to strike and sanctions

Respondent filed motions to strike portions of appellant’s brief and reply brief because they include facts that occurred after the date of the district court’s order. Respondent also requested sanctions against the appellant in the form of attorney fees and costs incurred in bringing her motions to strike.

The record on appeal is composed of “[t]he papers filed in the trial court, the exhibits, and the transcripts of the proceedings, if any.” Minn. R. Civ. App. P. 110.01. A reviewing court “cannot base its decision on matters outside the record on appeal and any matters not part of the record must be stricken.” Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987). Because the objected-to facts in appellant’s brief and reply brief are not contained in the district court file, we grant respondent’s motion to strike these paragraphs. We, however, decline to award sanctions on the motion to strike.

2. Modification of child-support obligation

Child support may be modified if the moving party shows a substantial change in circumstances that renders the existing support award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a), (b) (Supp. 1999). Modification of child support is within the district court’s broad discretion, and this court will not reverse absent an abuse of that discretion. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). Such an abuse occurs when the district court resolves the issue in a manner “that is against logic and the facts on record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

In the instant case, respondent moved for a modification of appellant’s child-support obligation because appellant’s salary had increased from $2,326.74 per month to $3,228.82 per month and daycare costs had increased from $408.50 to $670.80 per month. Appellant does not dispute that these changes constitute a “substantial change in circumstances” justifying a modification of child support. But he contends that he shares equally in the responsibility of providing physical care to the parties’ child and in light of this court’s decision in Tweeton v. Tweeton, 560 N.W.2d 746, 749 (Minn. App. 1997), review denied (Minn. May 28, 1997), the district court erred in refusing to apply the Hortis-Valento offset formula when modifying the existing child-support obligation. See Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) (setting out formula for calculating support when parties share joint physical custody); Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986) (same, but applying principle in all joint custody cases unless reasons for not applying formula exist), review denied (Minn. June 30, 1986); Tweeton, 560 N.W.2d at 746 (applying the Hortis-Valento modified-guideline child support calculation “where the child care responsibilities are equally divided between the parents”).

A party’s ability to pay child support must be determined according to chapter 518 and the child-support guidelines. Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 793 (Minn. App. 1998). Where there is joint physical custody, the Hortis-Valento reduction for care furnished to a child is “an application of the statutory guidelines,” and a deviation from the Hortis-Valento formula must be supported by explanatory findings. Id. at 792-93; see also Valento, 385 N.W.2d at 863 (stating a departure from the guidelines must be accompanied by specific findings which justify the departure).

Furthermore, as we recently explained in Rogers v. Rogers, ___ N.W.2d ___, 2000 WL 249273 (Minn. App. Mar. 7, 2000), where a decree does not provide for joint physical custody but the “noncustodial parent provides a significant amount of physical care for his or her children, the district court must, under Tweeton, apply the Hortis/Valento formula.” Id. at *2. Thus, the district court “can deviate from the Hortis/Valento/Tweeton formula (i.e., deviate from the guidelines) only if it makes appropriate findings.” Id. (citing Minn. Stat. § 518.551, subd. 5(c), (i) (Supp. 1999)).

In the instant case, the district court did not address whether appellant, the noncustodial parent, provided a significant amount of physical care. We, therefore, remand to the district court for a determination of this issue in light of the Tweeton and Rogers decisions. If the district court, upon “pragmatic observation,” finds that appellant provides a significant amount of physical care for D.J., it must apply the Hortis-Valento formula or make appropriate findings to justify a deviation from the guidelines. See id.

3. Attorney Fees

Respondent moves for attorney fees on appeal. Fees may be awarded at any time in the proceedings. Minn. Stat. § 518.14, subd. 1 (1998). The award of fees on appeal lies within the discretion of this court. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).

In light of appellant’s expenses and his current net income after the transfer of child support, we conclude he does not have the financial means to pay respondent’s attorney fees. Respondent’s motion is, therefore, denied. See Minn. Stat. § 518.14, subd. 1 (conditioning award of attorney fees on the parties’ needs and ability to pay).

Reversed and remanded; motions granted in part and denied in part.