Filed September 25, 2007

Reversed and remanded

Randall, Judge

Dakota County District Court

File No. F6-93-3042

Stephen W. Walburg, Jaspers, Moriarty & Walburg, P.A. 206 Scott Street, Shakopee, MN 55379 (for respondent)

James C. Backstrom, Dakota County Attorney, Marisela E. Cantu, Assistant County Attorney, One Mendota Road West, Suite 220, West Saint Paul, MN 55118 (for intervenor Dakota County)

Kristine A. Anderson, Loftness & Anderson, P.A., 327 Marschall Road, Suite 370, Shakopee, MN 55379 (for appellant)

Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Parker, Judge.*

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

RANDALL, Judge

On appeal in this child-support-modification proceeding, appellant-father argues that (a) this court’s prior rulings stating that district courts review a child support magistrate’s (CSM’s) determinations de novo are incorrect; and (b) even if the district court reviews a CSM’s ruling de novo, reversal is required here because the district court abused its discretion in denying appellant’s motion to modify his child-support obligation. Because the district court abused its discretion in failing to conclude that the substantial change in circumstances rendered the previous child-support obligation unreasonable and unfair, we reverse and remand.

FACTS

Appellant Peter Conlin and respondent Denise Conlin were divorced in August 1995. The parties were granted joint physical and legal custody of their minor child, A.C., born July 1993. Although the parties were awarded equal parenting time, the district court set appellant’s child-support obligation based on the amount that he would have paid had respondent been awarded sole physical custody, stating that respondent was unable to meet her monthly expenses. Respondent was not ordered to pay any child support to appellant. The district court, however, noted that “[a]ny future changes to the child support obligation ordered herein will be based on the child residing with each of the parties for one-half the
time and based on the principles set forth in Valento v. Valento, 385 N.W.2d 860 (Minn. App. 1986), and Hortis v. Hortis, 367 N.W.2d 633 (Minn. App. 1985).”

In March 2006, appellant moved to modify his child-support obligation, claiming that the circumstances of both parties had changed and that the original child-support order was unreasonable and unfair. The Child Support Magistrate (CSM) found that both parties’ incomes had increased and that appellant had two additional children to support. Thus, the CSM concluded that there had been a substantial change in circumstances rendering appellant’s existing child-support obligation unreasonable and unfair. Although the CSM noted that respondent “still cannot meet her expenses with her income,”[1] the CSM adjusted appellant’s child-support obligation under the Hortis/Valento formula based on the district court’s 1995 order mandating that any future modifications of child support be calculated under the Hortis/Valento formula. After calculating the parties’ child-support obligations under the Hortis/Valento formula, the CSM set appellant’s net payment amount at $100 per month.

Respondent sought review of the CSM’s order in July 2006. The district court found that both parties’ incomes had increased significantly, but that appellant enjoyed a significantly larger increase in income. The district court also found that although “the significant increase in income by each party constitutes a substantial change in circumstances . . . this change does not necessarily support a determination that the support awarded in the prior Order is unfair.” The court noted that respondent was unable to meet her monthly expenses, and that appellant assumed the responsibility for the two additional children with the knowledge of the financial requirements imposed by the original order. Consequently, the district court rescinded the order and denied appellant’s motion for modification of child support. This appeal followed.

D E C I S I O N

Appellant argues that the district court abused its discretion in denying his motion to modify his child-support obligation. The district court has broad discretion to provide for the support of the parties’ children. 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 misapplies the law. Id. Whether to modify support is discretionary with the district court, and its decision will be altered on appeal only if it resolved the matter in a manner that is against logic and the facts on record. Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).

The district court may modify the terms of a child-support obligation upon a showing that a party’s earnings or needs have substantially increased or decreased such that the child-support obligation has become unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a)(1), (2) (2004); O’Donnell v. O’Donnell, 678 N.W.2d 471, 475 (Minn. App. 2004). “The moving party has the burden of proof in support-modification proceedings.” Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002). Here, the district court found that each party realized a significant increase in net income, and that the increased income constituted a substantial change in circumstances. But the court found that because appellant enjoyed a larger increase in net income than respondent, the substantial change in circumstances did not render appellant’s child support obligation unreasonable and unfair.

We disagree with the district court’s conclusion that the substantial change in circumstances does not render appellant’s existing child-support obligation unreasonable and unfair. As both the CSM and the district court found, both parties have realized a significant increase in income since the time of the original order setting appellant’s child-support obligation. Since the parties’ marriage was dissolved in 1995, appellant now has two additional children to support.[2] Although we acknowledge that there is support for the finding that respondent cannot meet her monthly expenses without the child support she receives from appellant, the record shows that respondent’s inability to meet her expenses is due in large part to a high monthly car payment and related costs. Therefore, the district court’s (implicit) finding to the contrary is erroneous. Since the time of the parties’ divorce, appellant has been paying guidelines child support to his ex-
wife, despite the fact that he has joint physical custody of the child. Now, over ten years after the parties’ marriage was dissolved, there has been a substantial change in circumstances. This substantial change in circumstances renders appellant’s existing support obligation unreasonable and unfair. The district court abused its discretion in denying appellant’s motion for modification of his child support obligation. In accordance with the original order dissolving the parties’ marriage, we remand the matter to the district court for a determination of appellant’s child-support obligation under the Hortis/Valento formula.

We note that appellant argued that the district court failed to apply the proper standard by reviewing the CSM’s order de novo. Appellant asserts that prior to 2001, the Minnesota Rules of General Practice provided only for an independent de novo review of a CSM’s order. See Minn. R. Gen. Pract. 372.05, subd. 2. Appellant claims that in 2001, the language of the rule changed. The rule now provides that the district court

shall make an independent review of any findings or other provisions of the underlying decision and order for which specific changes are requested in the motion. The [district court] shall affirm the order unless the court determines that the findings and order are not supported by the record or the decision is contrary to law.

Minn. R. Gen. Pract. 377.09, subd. 2(b). Appellant contends that under the new language promulgated in Minn. R. Gen. Pract. 377.09, subd. 2(b), the district court is obligated to affirm the CSM’s decision unless the court determines that the findings are not supported by the record or the decision is contrary to law. Appellant contends that because the rule was changed in 2001, this court’s prior rulings stating that district courts review of a CSM’s determinations de novo are incorrect.

Because we are reversing and remanding on the basis that the district court abused its discretion in denying appellant’s motion to modify his child-support obligation, we need not address appellant’s claim. We do point out that this court has addressed this issue on two occasions and, in unpublished opinions, rejected the argument. See Jones v. Simmons, No. A05-1325, 2006 WL 1320411, at *2 (Minn. App. May 16, 2006); see also Janssen v. Janssen, No. A04-1509, 2005 WL 1545308, at *2 (Minn. App. July 5, 2005). Minn. R. Gen. Pract. 377.09, subd. 2(b) still allows the district court to make an independent review of the CSM’s findings. Although the additional language of the rule, providing for deference to the findings and order can be read to create a conflict on the nature of the review, caselaw states that the CSM’s decision is subject to de novo review by the district court. Kilpatrick v. Kilpatrick, 673 N.W.2d 528, 530 n.2 (Minn. App. 2004); Davis v. Davis, 631 N.W.2d 822, 825 (Minn. App. 2001); Blonigen v. Blonigen, 621 N.W.2d 276, 280 (Minn. App. 2001), review denied (Minn. Mar. 13, 2001).

Reversed and remanded.

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

[1] The CSM indicated that respondent’s inability to meet her expenses was due in large part to a high monthly car payment and “related high costs for license tabs etc.”

[2] We note that under Minn. Stat. §518.551, subd. 5f (2004), subsequent children do not, by themselves, constitute an independently sufficient basis for modification.