Opinion
No. C5-02-262
Filed August 27, 2002.
Appeal from the District Court, Ramsey County, File No. F58826798.
Jerrold F. Bergfalk, for respondent)
Dan O'Connell, Jennifer A. Jameson, Garth G. Gavenda, (for appellant).
Considered and decided by Randall, Presiding Judge, Hanson, Judge, and Hudson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
Affirmed in part, reversed in part, and remanded
UNPUBLISHED OPINION
On appeal after remand in this child support modification proceeding, appellant-father argues that (a) because the parties stipulated to joint physical custody, the district court should have used the Hortis/Valento child support formula to set child support during the entire year rather than just the summers; (b) the district court abused its discretion by not reopening the record on remand; (c) the district court misapplied Minn. Stat. § 518.551, subd. 5b(f) (2000), by using accrual-based accounting figures rather than cash-based figures to calculate the "gross receipts" used in determining father's net monthly income for support purposes; and (d) the district court set father's support obligation at an excessive amount. We affirm in part, reverse in part, and remand.
FACTS
The 1988 stipulated judgment dissolving the marriage of respondent Beth Ann DeLaHunt (mother) and appellant David Anthony Janssen (father) awarded the parties joint legal and joint physical custody of their then two-year-old child. The judgment also stated that when the child entered school, the child would live with mother during the school year and that father would have "reasonable access" to the child as set out in the judgment. The judgment also stated:
[C]ommencing the first month of the school year and continuing through the last month of the school year, the parties have agreed that husband will pay to wife as and for child support the amount of $300 per month. For each school year, husband shall pay child support to the wife for a nine-month period, for a total yearly amount of child support of $2,700. Husband shall not be responsible for child support during the summer breaks. This arrangement will continue for each and every school year.
In July 1999, mother moved to increase father's child support obligation during the school year and asked that father be ordered to pay support during the summer as well. Father's only income comes from his solely owned subchapter S corporation. The corporation's financial statements are prepared on an accrual basis, meaning that income is recognized by the corporation when earned as opposed to cash-based accounting where income is not recognized until the money is actually received. Under the accrual-based method of accounting, expenses are recognized by the corporation when incurred or payable as opposed to the cash-based method of accounting where expenses are not recognized until the money is disbursed.
At all times relevant to this matter, the district court has, based primarily on representations by appellant (father), characterized cash-based accounting and accrual-based accounting as described above. Neither party has ever disputed these definitions.
After a hearing in December 1999, the district court found father's net monthly income to be $3,522 and increased father's child support obligation to what the district court indicated was the guidelines amount of $881 per month for the school year. The district court denied mother's request to have father pay support during the summer.
Mother appealed and this court: (a) remanded for the district court to use the statutory mechanism in Minn. Stat. § 518.551, subd. 5b(f) (Supp. 1999), to determine father's income from self-employment; (b) directed the district court to reconsider mother's request for support during the summer; and (c) left to the district court's discretion whether to reopen the record. De La Hunt v. Janssen, No. C0-00-388 (Minn.App. Oct. 10, 2000).
On remand, the district court did not reopen the record. Applying the statutory formula in Minn. Stat. § 518.551, subd. 5b(f) to the accrual-based financial statements father submitted in December 1999, the district court found father's net monthly income to be $5,935. The court then set father's support obligation at what the district court determined was the guidelines amount of $1,470.99 per month during the school year. The district court also found that the parties had divided physical custody equally during the summer, applied the Hortis/Valento formula to the calculation of support during the summer, and set father's net monthly child support payment during the summer months at $227.75. The district court made the modification retroactive to July 1999 when mother originally filed her motion.
The court found mother's net monthly income to be $4,022 and that her guideline-determined child support would be $1,005.50. After applying the percentage of time each parent spent parenting the child during the summer months, 50%, the court determined that mother would owe father $507.50 in monthly child support (50% of $1,005.50) and father would owe mother $735.50 (50% of $1,470.99). The resulting difference is $272.75. But the court apparently transposed the numbers and actually assessed a child support obligation of $227.75.
Father subsequently moved for "amended findings and other relief." Father requested that the record be reopened to allow him to submit documentation that would allow his income to be calculated using cash-based accounting rather than the accrual-based information submitted to the district court in December 1999. The district court treated father's motion as a request for amended findings under Minn.R.Civ.P. 52.02 and denied it. Father appeals.
DECISION I.
Noting that the parties share joint physical custody of their child, father argues that the district court erred in failing to use the Hortis/Valento formula during the school year.
A district court has broad discretion to address child support and abuses its discretion when it sets support in a manner that is against logic and the facts on the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Application of the Hortis/Valento formula is presumptively appropriate in all joint physical custody cases. Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn.App. 2001). Also, while the Hortis/Valento formula can be used where one parent has sole physical custody, doing so is a deviation from the child support guidelines and must be supported by findings on the statutory factors listed in Minn. Stat. § 518.551, subd. 5(c), 5(i) (2000). Rogers v. Rogers, 622 N.WW.2d 813, 821 (Minn. 2001). Thus, "identifying whether the parties have joint physical custody or whether one party has sole physical custody is critical to setting the parties' support obligations." Nolte v. Mehrens, ___ N.W.2d ___, ___ (Minn.App. July 30, 2002) (slip op. at 5).
Because the parties stipulated to joint physical custody and the district court adopted that stipulation, the "joint physical custody" label on the custodial arrangement in the dissolution judgment is dispositive of both the nature of their custody arrangement and the fact that it is presumptively appropriate to use the Hortis/Valento formula to set support. Nolte, ___ N.W.2d at ___ (slip op. at 6). Mother argues that she has "de facto primary custody" during the school year and thus, she contends, the district court correctly refused to apply the Hortis/Valento formula during those months. Mother's argument, however, is inconsistent with Nolte's statement that the label on the parties' custody arrangement is dispositive regarding the nature of that arrangement, and Schlicting's statement that not applying the Hortis/Valento formula to a joint-physical-custody arrangement is a deviation from the guidelines requiring findings on the statutory factors. Thus, because the parties have joint physical custody of their child, the district court erred by not applying the Hortis/Valento formula to set support during the school year without making findings justifying a deviation from the guidelines for that period. We remand for the district court to either apply the Hortis/Valento formula to the entire year, or to make the statutory findings justifying a deviation from the guidelines for the periods that the formula is not used.
We note that mother filed her brief before this court issued Nolte.
II.
Father notes that Minn. Stat. § 518.551, subd. 5b(f) (2000), defines income from self-employment in terms of "gross receipts" and argues that the district court abused its discretion by not reopening the record on remand for a proper calculation of his income under that statute. The crux of father's argument is that the statute's reference to "gross receipts" means "cash receipts" and that therefore the previously submitted accrual-based financial statements of his business had to be converted to a cash-based format in order for the district court to have a true picture of father's actual income. In order to do this, father argues, the record on remand should have been reopened to allow father to submit cash-based documentation. At oral argument before this court, however, father's attorney stated that the accounting method used to prepare those financial statements would be less significant if this court held that support for the entire year had to be calculated under the Hortis/Valento formula. As noted above, recent case law does hold that the Hortis/Valento formula is presumptively appropriate for setting support in all joint physical custody cases and we are remanding the support issue.
Presumably a cash-basis analysis would have shown that father's net monthly income was substantially less than the $5,935.00 net monthly income the district court arrived at by using the accrual-based financial statements. Thus, a cash-basis analysis of father's income would have resulted in significantly lowering father's support obligation.
Moreover, father's attempt to submit cash-based accounting information came in his motion for amended findings. In addressing such motions, the district court "must apply the evidence as submitted during the trial of the case." Johnson v. Johnson, 563 N.W.2d 77, 78 (Minn.App. 1997), review denied (Minn. June 30, 1997) (quotations omitted); see Otte v. Otte, 368 N.W.2d 293, 299 (Minn.App. 1985) (stating motions for amended findings must be based on the existing record and not on newly discovered evidence that is not a part of the record) (citing Minn.R.Civ.P. 52.02). Therefore we decline on this record to address whether the use of "gross receipts" in Minn. Stat. § 518.551, subd. 5b(f), requires the inference that a cash-based accounting system must be used for calculation under that statute. We hold that the district court did not abuse its discretion in relying on the only evidence presented in the record by father. In addition, our earlier remand made reopening of the record discretionary with the district court. On this record, we conclude that the district court did not abuse its discretion in deciding not to reopen the record.
We note, however, that Minn. Stat. § 518.551, subd. 5b(f), does not define "gross receipts" or suggest that a particular accounting system is to be used.
III.
Finally, father argues that, on remand, the district court set father's support obligation at an excessive amount. Because the district court should have either used the Hortis/Valento formula for setting support for the entire year or made findings explaining why the formula was not used, the question of the amount of father's support obligation is being remanded. Therefore, it would be premature to address the amount of father's support obligation here. Once again, on remand, the question of whether to reopen the record to allow the parties to submit new financial information, including father's cash-based financial statements, is discretionary with the district court.