In Re the Marriage of: Mande Wash-Evans, Respondent, vs. Jon Olaf Evans, Appellant. C0-97-1285, Court of Appeals Unpublished, February 10, 1998.

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-97-1285

In Re the Marriage of:

Mande Wash-Evans,

Respondent,

vs.

Jon Olaf Evans,

Appellant.

Filed February 10, 1998

Affirmed and motion denied.

Lansing, Judge

Wright County District Court

File No.F2951783

Susan M. Lach, Jonathan J. Fogel, Messerlie & Kramer, P.A., 1800 Fifth Street Towers, 150 S. Fifth Street, Minneapolis, MN 55402 (for appellant).

Robert H. Wenner, Reichert, Wenner, Koch & Provinzino, P.A., 501 St. Germain, P.O. Box 1556, St. Cloud, MN 56302 (for respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.^**

Retired judge of the Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.

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

LANSING, Judge

This is an appeal from a postdecree judgment modifying child support. The record supports the district court's finding of a change in circumstances warranting an increase in the support amount. We affirm the modification but deny the request for attorneys' fees on appeal.

FACTS

The August 1995 stipulated judgment dissolving Mande Wash-Evans and John Evans's marriage provided for joint physical custody of their two children. The judgment also provided a custody schedule and set Evans's monthly support obligation at $379 plus half of the children's daycare and medical expenses.

In January 1997 Wash-Evans, pro se, moved for increased support. The district court found a substantial change in circumstances because Evans did not exercise his custody rights and responsibilities to the extent anticipated when the judgment was entered. The court further found that the change made the original amount of support unreasonable and unfair, and increased Evans's monthly support obligation to $600. Evans argues (1) that the stipulation of joint physical custody mandates application of a "cross-award" formula and negates a finding of changed circumstances; (2) the evidence and findings are insufficient to support modification; and (3) the notice requesting modification was inadequate. Wash-Evans requests attorneys' fees on appeal.

D E C I S I O N

Child support may be modified if the moving party shows a substantial change in circumstances rendering the existing support award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (Supp. 1997). When modifying support, the district court has broad discretion and will not be reversed absent a clearly erroneous conclusion that is against logic and the facts on record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). Unless the facts suggest otherwise, when parties share joint physical custody, the guidelines should be applied to require each party to pay support during the time the other party has custody. See Valento v. Valento, 385 N.W.2d 860 (Minn. App. 1986), review denied (Minn. June 30, 1986) (describing joint physical custody support formula); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) (same).

The district court ruled that a substantial change in circumstances occurred after entry of the judgment and decree because Wash-Evans had custody of the children 85 percent of the time rather than 65 to 70 percent of the time as expected. Because Evans's support obligation was originally set below the guidelines amount (calculated by either the sole-custody or Hortis formula), the change in circumstances required to support a modification is reduced. See Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988) (when support is set below guidelines amount, minor change of circumstances supports modification).

The district court recognized that the parties had stipulated to what was nominally joint physical custody. But the court declined to calculate support on a joint physical custody formula because the implementation resulted in a custodial arrangement that more nearly approximated sole physical custody in Wash-Evans with visitation in Evans. The district court did not err by basing the child support on the substance of the custody arrangement or by finding that a failure to implement the custody arrangement contemplated in the original judgment can constitute a change in circumstances that warrants an increased support amount. See Tweeton v. Tweeton, 560 N.W.2d 746, 748 (Minn. App. 1997) (rejecting argument that label of stipulated custody arrangement governs support calculation), review denied (Minn. May 28, 1997); see also Hecker v. Hecker, 568 N.W.2d 705, 709-10 & n.3 (Minn. 1997) (in maintenance context, failure to attain status assumed by judgment can be substantial change in circumstances justifying modification).

Evans challenges the district court's finding that Wash-Evans is the children's physical custodian 85 percent of the time. Although Evans contests this fact on appeal, he did not request an evidentiary hearing in the district court. See Minn. R. Gen. Pract. 303.03(d) (absent good cause shown, motions in family court are decided on the parties' submissions). Because no evidentiary hearing was requested, the district court was compelled to resolve the issue based on the contents of the file. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous). Wash-Evans presented the 85-percent allocation in the attachment to her affidavit submitted with her modification motion. She restated it at the argument on the motion. Wash-Evans maintained that Evans had failed to comply fully with even the minimum amounts of custodial time that were incorporated into the stipulation. Evans contends that these arrangements were not minimums and that any changes were consented to by Wash-Evans. But it is the province of the district court to resolve conflicting statements. Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (appellate courts must defer to district court's resolution of fact issues presented by conflicting affidavits). The record, including the letters and affidavits, adequately supports the district court's findings of fact.

Evans also claims that the district court's findings do not satisfy Moylan. Since the Moylan decision, the legislature has amended the statute to provide that if guidelines support is not awarded, the district court "shall" make certain findings. See 1991 Minn. Laws ch. 292, art. 5, §§ 75-78 (amending child support guidelines); Minn. Stat. § 518.551, subd. 5(i) (1996). The support obligation set by the district court varies only slightly from the award that would have been set had the district court applied Hortis, as Evans urged. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for findings in case of de minimis error). Moreover, the district court's findings show consideration, even if not a listing, of all relevant criteria in the findings. See Minn. R. Civ. P. 61 (harmless error to be ignored).

III

Evans's final claim is that he did not have adequate notice of the substance of Wash-Evans's claims before the district court hearing. We reject the claim of inadequate notice. Attached to Wash-Evans's initial motion and supporting affidavit is a letter to the district court in which she states she has custody "85 percent of the time[.]" In addition, the district court file contains a letter in which Wash-Evans repeatedly asserts she is the custodian 85 percent of the time. Evans does not dispute that he received the letter-notice. See Minn. R. Civ. App. P. 110.01 (defining record on appeal to include documents filed with the district court). See Moylan, 384 N.W.2d at 865 (requiring findings in support modification proceedings).

Wash-Evans seeks attorneys' fees under Minn. Stat. § 518.14, subd. 1 (1996). Wash-Evans has not alleged that Evans unreasonably increased the length or expense of the hearing; thus we evaluate the request under the provision of Minn. Stat. § 518.14, subd. 1, allowing attorney fee awards based on the obligor's ability to pay and the recipient's need. Although Wash-Evans's expenses leave her with a monthly deficit, the record indicates that Evans has a similar deficit. On this record, we decline to award fees on appeal.

Affirmed and motion denied.