This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1769

 

In re the Marriage of:

Linda Marie Christine Marentic, petitioner,

Respondent,

 

vs.

 

Gregory James Marentic,

Appellant.

 

Filed June 20, 2006

Affirmed and remanded

Halbrooks, Judge

 

 

Washington County District Court

File No. F4-02-7456

 

Erik F. Hansen, Shari A. Jacobus, Hellmuth & Johnson, P.L.L.C., 10400 Viking Drive, Suite 500, Eden Prairie, MN 55344 (for respondent)

 

Jody Ollyver DeSmidt, David C. Gapen, Walling, Berg & Debele, P.A., 121 South 8th Street, Suite 1100, Minneapolis, MN 55402  (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant alleges that the district court abused its discretion by considering appellant’s two children from his first marriage, whom he cares for and supports 50% of the time, to be the equivalent of one full-time child when it determined appellant’s child-support obligation for M.M., his adopted child from a second marriage.  Additionally, appellant claims that the district court abused its discretion by (1) using the reduced-ability approach to determine support because it works an injustice by unfairly favoring M.M., (2) failing to consider respondent’s income and ability to provide for M.M.; and (3) ordering appellant to maintain medical and dental insurance for M.M.  In her brief, respondent requests an award of attorney fees on appeal.  Because the district court did not abuse its discretion in its child-support award, we affirm on that issue.  But because the district court did not address appellant’s request for respondent’s contribution to the cost of the premiums for M.M.’s medical and dental insurance under Minn. Stat. § 518.171, subd. 1(d) (2004), we remand for that determination.  Because respondent failed to make a motion for appellate attorney fees under Minn. R. Civ. App. P. 139.06, the request is denied because it is not properly before us.

FACTS

            In 2001, appellant Gregory Marentic adopted respondent Linda Marentic’s daughter, M.M., in Wisconsin.  Shortly after filing the adoption petition, appellant and respondent married; 13 days later, the adoption was approved.  After 15 months of marriage, respondent moved out of the parties’ home and filed for dissolution.

            Appellant filed a motion in Wisconsin to invalidate the adoption, which was denied.  The Minnesota district court granted the dissolution but reserved the issues of child custody and child support pending the outcome of appellant’s motion to invalidate the adoption.  The Minnesota district court subsequently resolved the child-custody and support issues by awarding respondent sole physical custody of M.M. and child support. 

            In appellant’s first dissolution, he and his ex-wife agreed to share legal and physical custody of their children and to not seek child support from one another.  Based on that agreement, the district court in this matter determined that because appellant had a stipulated 50/50 joint legal and physical custody of his two children from a prior marriage, it was the functional equivalent of supporting one of those children on a full-time basis.  The district court then used the reduced-ability approach to determine appellant’s support obligation for M.M.  Thus, the district court determined appellant’s net monthly income and reduced it by 25% (guidelines support obligation for one child) to find appellant’s adjusted net monthly income.  The district court then calculated appellant’s support obligation for M.M. to be 25% of appellant’s adjusted net monthly income.  In addition, the district court ordered appellant to be responsible for maintaining M.M.’s medical and dental insurance.  This appeal follows.

D E C I S I O N

I.

Appellant alleges that the district court overstated his child-support obligation for M.M.  He argues that (a) when setting that obligation, the district court should not have used the reduced-ability approach to find his income for purposes of setting his support obligation for M.M. and (b) in setting his support obligation, the district court should not have assumed that providing support for two children half of the time was the equivalent of providing full-time support for one child.

Generally, the district court has broad discretion to address child support.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion when it sets support in a manner “that is against logic and the facts on record” or “improperly applies the law to the facts.”  Id. (determining support that is against logic and facts in the record); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (misapplying the law).  The child-support guidelines of Minn. Stat. § 518.551, subd. 5(b) (2004), are rebuttably presumed to be applicable in “all cases.”  Minn. Stat. § 518.551, subd. 5(i) (2004).  Caselaw, however, recognizes the awkwardness of applying the guidelines when an obligor has multiple support obligations.  See, e.g., In re Paternity of J.M.V., 656 N.W.2d 558, 562 (Minn. App. 2003) (stating “[t]he legal framework [for setting support] becomes more complicated when, as here, a support obligor has multiple support obligations”); Hayes v. Hayes, 473 N.W.2d 364, 365-67 (Minn. App. 1991) (noting difficulties in addressing support questions when obligor has children in multiple households).

A.        Propriety of Using Reduced-Ability Income Calculation

In finding a support obligor’s income for child-support purposes, the obligor’s total income is reduced by various amounts, including the amount of a support obligation the obligor is currently paying.  Minn. Stat. § 518.551, subd. 5(b)(i)-(viii).  This reduction is required by statute and setting support based on this calculation is known as the “reduced-ability” method of setting support.  Wollschlager v. Wollschlager, 395 N.W.2d 134, 135, 135 n.1 (Minn. App. 1986).  Because the calculation is statutorily mandated, the district court did not abuse its discretion by invoking it.

B.        Amount of Reduction

Appellant and his first wife share joint physical custody of their children on a 50/50 basis.  As a result, they stipulated in their dissolution that there would be no net child-support payment exchanged between them.  If parents share joint physical custody of their children, their presumptively appropriate support obligations are the obligations calculated under the Hortis/Valento formula, under which each obligor pays guideline support for the time the children are in the other parent’s physical custody.  Maschoff v. Leiding, 696 N.W.2d 834, 837 (Minn. App. 2005).  The parents’ obligations are offset, meaning the parent with the larger obligation makes a net payment to the other parent.  Id.  Therefore, under the Hortis/Valento formula, there is a distinction between a parent’s support obligation and a parent’s support payment.  Id. at 838 n.2.

Here, because it is undisputed that appellant’s net monthly income for support purposes exceeds $1,000, a guideline support obligation for the two children of his first marriage would be 30% of his net monthly income if his first wife had sole physical custody of those children.  Minn. Stat. § 518.551, subd. 5(b).  Because appellant and his first wife equally share joint physical custody of their children, appellant’s presumptively appropriate support obligation for those children under the Hortis/Valento formula is half of the 30% figure, or 15% of his net monthly income.  Thus, under the reduced-ability approach for calculating net monthly income for purposes of setting appellant’s support obligation for M.M., appellant’s net monthly income would be 85% of the figure used when determining his support obligation for the two children of his first marriage.  Here, in determining appellant’s net monthly income for purposes of setting his support obligation for M.M., the district court reduced appellant’s net monthly income by 25% instead of 15%.  While not necessarily consistent with a straightforward application of the reduced-ability approach, the district court’s reduction of appellant’s net monthly income preserves more of his income for appellant and the children of his first marriage than might otherwise have been the case.  Because appellant is not aggrieved by the district court’s reduction, this aspect of appellant’s argument does not entitle him to relief.  See Twin Cities Metro. Pub. Transit Area v. Holter, 311 Minn. 423, 425, 249 N.W.2d 458, 460 (1977) (stating “[a] party who is not aggrieved by a judgment may not appeal from it”).

To the extent that appellant argues that the reduction was inadequate because it assumes that appellant is only responsible for caring for the children of his first marriage one-half of the time when, in reality, he is either paying support for them or caring for them all of the time, we reject his argument.  Adopting the argument would require this court to either change the law by reading Minn. Stat. § 518.551, subd. 5(b)(viii), to allow a reduction for more than the support order that was “[c]urrently [b]eing [p]aid[,]” or to rule that the district court abused its discretion by not deviating from the 15% statutory reduction of his income to a greater degree than it did.  The former is inappropriate because this is as an error-correcting court.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating “[t]he function of the court of appeals is limited to identifying errors and then correcting them”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating “[t]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).  And while, in a different case, the latter argument might prevail, on this record, we cannot say that appellant has shown that the district court abused its discretion.

II.

Appellant argues that it was an abuse of discretion to not consider respondent’s income and her ability to provide for M.M. in its child-support order.  Appellant fails to cite to a statute or case in support of this argument, relying instead on equitable principles.  Minn. Stat. § 518.551, subd. 5f(2) (2004), permits the district court to look at the income of the subsequent child’s other parent when determining the support for prior children pursuant to a motion to increase that obligation.

Appellant relies on a recent legislative enactment, but the effective date of that enactment is January 2007 and appellant has not established that it applies to this case.  We, therefore, do not consider it in this decision.  As a result, the district court did not abuse its discretion by not considering respondent’s income or ability to provide for M.M.

III.

Appellant argues that the district court abused its discretion in ordering him to maintain M.M.’s medical and dental insurance without requiring contribution for the premiums from respondent.  Appellant points to Minn. Stat. § 518.171, subd. 1(d) (2004), in support of his argument that contribution includes the cost of insurance, not just the cost of medical and dental services.  We agree with appellant’s reading of the statute. 

The district court stated that appellant “agree[d] to carry the medical and dental insurance.”  Indeed,both parties agreed that appellant would continue to carry the insurance and the parties would equally cover reasonable out-of-pocket expenses, but appellant did not agree to be responsible for the premiums.  Because the district court did not make a finding regarding contribution for the cost of the premiums, we remand for a finding consistent with Minn. Stat. § 518.171, subd. 1(d).

IV.

            In the conclusion to her brief, respondent requests attorney fees “for the continued costs she has incurred for having to litigate this matter in multiple forums.”  The rule governing the procedure for seeking attorney fees on appeal states:

A party seeking attorneys’ fees on appeal shall submit such a request by motion under Rule 127. . . .  All motions for fees must be submitted no later than within the time for taxation of costs, or such other period of time as the court directs.  All motions for fees must include sufficient documentation to enable the appellate court to determine the appropriate amount of fees.

 

Minn. R. Civ. App. P. 139.06, subd. 1.  Because respondent failed to file a rule 127 motion for attorney fees on appeal, her request for fees is not properly before this court, and we do not address it.  See Koes v. Advanced Design, Inc., 636 N.W.2d 352, 363 (Minn. App. 2001), review denied (Minn. Feb. 19, 2002); Crockarell v. Crockarell, 631 N.W.2d 829, 837 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).

            Affirmed and remanded.