Richard J. Krambeer, Henningson & Snoxell, Ltd., 6160 Summit Drive, Suite 640, Brooklyn Center, MN 55430 (for respondent)

Brian J. Peterson, 7101 Northland Circle, Suite 102, Minneapolis, MN 55428 (for appellant)

Considered and decided by Davies, Presiding Judge, Amundson, Judge, and Harten, Judge.

Appellant Mr. Rawski challenges the administrative law judge's de novo modification of his child support obligations. We affirm.

The dissolution judgment and decree entered by the parties in 1995 required de novo review of child support obligations upon enrollment of the minor child in kindergarten. Consistent with the post-kindergarten enrollment schedule set forth in the judgement, primary physical custody is now with the Ms. Rawski. Custody and visitation rights however, are reversed for eleven weeks during the summer when Mr. Rawski maintains physical custody of the minor child and Ms. Rawski has two weekdays and the first, third and fifth, (if necessary) weekends for visitation. The ALJ found that this custody and visitation arrangement has been in place since approximately one year after the judgment, despite the fact that the minor child was not yet in kindergarten. Therefore, Ms. Rawski has been the primary custodial parent for over one year.

The ALJ set child support obligations for Mr. Rawski at $433 per month. Mr. Rawski was also ordered to contribute an additional $180.79 monthly for child care costs. Both the child support and the child care expenses were made retroactive to September 1, 1997, the date the child began kindergarten.

Mr. Rawski argued that an upward departure from child support guidelines must be accompanied by specific findings justifying the departure. Valento v. Valento, 385 N.W.2d 860, 863 (Minn. App. 1986), review denied (Minn. June 30, 1986). Additionally, he argues that if the parents share joint physical and legal custody of the child, then the method for computing child support is determined by the guideline amount for the period of time that the other parent has custody. Id. at 863. Valento requires an offsetting of the two parents' support obligations by totaling the guideline amounts, reducing it by the amount of time the other parent has custody of the child, and then subtracting the smaller of the two reduced amounts to arrive at the total monthly support obligations. Id. at 862-63. The ALJ found that because Ms. Rawski now has primary physical custody of the child, it is not appropriate to calculate child support in accordance with Valento. We agree.

Even though the Rawskis do not have joint physical custody, the ALJ appropriately considered the amount of time that the child is with the non-custodial parent to determine Mr. Rawski's child support obligation. The ALJ applied the child support guidelines and then reduced the total amount to compensate for the weeks during the summer when the child lives with his father. There was no upward departure from the child support guidelines.

Mr. Rawski was also required to contribute to the monthly child care costs. The court is required to allocate child care costs, unless the allocation would be "substantially unfair." Minn. Stat. § 518.551, subd. 5(b)(E). The ALJ made a specific finding that Mr. Rawski could afford the amounts allocated to him for child care and reduced his child support obligation by 25%, to take into consideration the federal and state tax credits available to Ms. Rawski because she was allocated the dependency exemption.

The Federal Internal Revenue Code provides that the parent who has custody of the child for the greater portion of the calendar year is entitled to the dependency exemption. 26 U.S.C.A. § 152(e)(1) (Supp. 1998). The fact-finder may, in his discretion, allocate exemptions in a manner other than provided by the IRS. Wopata v. Wopata, 498 N.W.2d 478, 486 (Minn. App. 1993). Here, the ALJ followed IRS guidelines and allocated the dependency exemption to Ms. Rawski. He then reduced Mr. Rawski's child support obligation by 25% to counter balance the allocation of the exemption. We find no error in this decision.

The final argument Mr. Rawski makes is that he should not have to pay support obligations retroactively from September 1, 1997. However, this proceeding involved a de novo review of the original child support amount upon enrollment of the child in kindergarten. This was a consequential date for both physical custody and child support, and therefore the new contributions are appropriate as of September 1, 1997. It should come as no surprise to Mr. Rawski that his child support obligations were to change when primary custody changed upon the child's entry into kindergarten.

Affirmed.