Mary Ann Trewartha, n/k/a Mary Ann Garrity, petitioner, Respondent, vs. Mark Donald Trewartha, Appellant. C6-99-114, Court of Appeals Unpublished, June 1, 1999.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-99-114

Mary Ann Trewartha, n/k/a Mary Ann Garrity, petitioner,

Respondent,

vs.

Mark Donald Trewartha,

Appellant.

Filed June 1, 1999

Reversed and remanded

Short, Judge

Hennepin County District Court

File No. 205435

Maria K. Pastoor, Pastoor Law Office, Ltd., Suite E-1434, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)

Michele M. Danielson, Clapp & Erickson, Suite 1450, 386 North Wabasha Street, St. Paul, MN 55102 (for appellant)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Shumaker, Judge.

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

SHORT, Judge

On appeal from an order increasing his child support obligation and requiring division of stock, Mark Donald Trewartha argues the trial court abused its discretion by: (1) modifying his child support obligation; (2) modifying the property division agreement; and (3) awarding attorney fees to his former spouse. We reverse and remand.

D E C I S I O N

The award of property and child support rests within the broad discretion of the trial court. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not reverse a property or child support order unless it embodies a clearly erroneous conclusion. Id. But in the absence of findings of fact that reflect the trial court's deliberations, we will reverse and remand for reconsideration and express findings of fact. Moylan v. Moylan, 384 N.W.2d 859, 864-65 (Minn. 1986).

Trewartha argues the trial court abused its discretion by miscalculating his income, accepting his former spouse's monthly expenses, and equalizing the parties' incomes by modifying his child support obligation. We agree. Because Trewartha and his former spouse shared joint physical custody of their two children, the calculation of child support first required the determination of the net income of both parties. See Tweeton v. Tweeton, 560 N.W.2d 746, 747-48 (Minn. App. 1997) (discussing joint physical custody arrangement under which each parent pays half of guideline amount with offset of smaller obligation against larger), review denied (Minn. May 28, 1997); see also Minn. Stat. § 518.551, subd. 5 (1998) (explaining calculation of child support under guidelines). But the trial court adopted, without explanation, the former spouse's estimation of Trewartha's net monthly income, which included items such as nontaxable business expense reimbursements, cash withdrawals from credit cards, and an unsubstantiated estimation of Trewartha's average monthly income from self-employment. See Minn. Stat. §§ 518.54, subd. 6 (1998) (defining income as "periodic" payments, such as wages and salaries), 518.551, subd 5b(f) (1998) (defining method for establishing income from self-employment); cf. Gray v. Commissioner of Internal Revenue, 10 T.C. 590, 597 (1948) (holding reimbursement by employer for expenses incurred by employee on behalf of employer are not income). Additionally, the trial court accepted the former spouse's increase in monthly living expenses without making any findings of fact. See Minn. Stat. § 518.64, subd. 2 (1998) (requiring changed circumstances to justify modification of child support); Quaderer v. Forrest, 387 N.W.2d 453, 455 (Minn. App. 1986) (noting evidence supported determination changed circumstances occurred because mother's living expenses had increased when she was forced to rent apartment, and day care costs increased from $40 to $220 per month). Finally, the trial court calculated an upward deviation from the guidelines- calculated child support stating only that "Petitioner needs $1,000.00 per month and Respondent can afford to pay $1,000.00 per month." See Minn. Stat. § 518.551, subd. 5(c), (i) (1998) (identifying criteria to be considered in calculating upward deviation and requiring findings of fact); Broas v. Broas, 472 N.W.2d 671, 674 (Minn. App. 1991) (concluding trial court abused its discretion by effectively equalizing incomes of parties through child support award when trial court stated that upward departure from guideline formula enabled each household to meet its needs). Under the circumstances and in the absence of findings of fact, we conclude the trial court abused its discretion in ordering an increase of Trewartha's child support obligation.

II.

Trewartha also argues the trial court abused its discretion by dividing stock he received from his employer while the parties were legally married. The record demonstrates: (1) Trewartha received between 106 and 141 shares of stock from his employer in 1993 and 1994; (2) the parties were married, but living separately, during 1993 and 1994; (3) the parties' marital termination agreement and original judgment and decree did not address the division of the stock, but awarded retirement funds solely to Trewartha; (4) the record does not reflect whether the stock was part of a retirement package; and (5) the trial court estimated 200 shares were accrued during the marriage, estimated their worth at $7,800, and awarded half to Trewartha's former spouse. Although the trial court has power to divide property omitted from a prior property division, in this case, the trial court made no findings of fact regarding the nature of the stock, whether an equal division comported with the original property division, and apparently miscalculated the division of that property. See Minn. Stat. §§ 518.145, subd. 2 (1998) (permitting reopening of property division for, among other issues, mistake, new evidence, fraud, and misrepresentation); 518.64, subd. 2(e) (1998) (permitting modification of property division under Minn. Stat. § 518.145); Kitchar v. Kitchar, 553 N.W.2d 97, 103 (Minn. App. 1996) (holding trial court did not err by concluding property was "marital" even after couple lived separately while still legally married), review denied (Minn. Oct. 29, 1996). Given these facts and the absence of explanatory findings of fact, we conclude the trial court abused its discretion in ordering an equal division of 200 shares of stock.

III.

Finally, Trewartha argues the trial court abused its discretion in ordering him to pay his former spouse's attorney fees. The record demonstrates the trial court did not make findings of fact regarding the payment of attorney fees and stated only that

Respondent should contribute $1,500.00 toward Petitioner's attorney's fees so that the increased child support to benefit the children is not consumed by these attorney's fees.

See Minn. Stat. § 518.14, subd. 1 (1998) (stating trial court can award attorney fees if fees are necessary for good-faith assertion of payee's rights, payor has means to pay fees, and payee does not have means to pay fees); Courey v. Courey, 524 N.W.2d 469, 473 (Minn. App. 1994) (holding trial court abused its discretion in awarding attorney fees without making specific findings that children's father had ability to pay or mother was unable to pay). We conclude the trial court abused its discretion in ordering Trewartha to pay his former spouse's attorney fees.

We reverse and remand for proceedings consistent with this opinion. Because of our disposition of these issues, we deny the former spouse's motion for attorney fees incurred on appeal.

Reversed and remanded.