Heather M. Pasket, petitioner, Respondent, vs. Thomas M. Hale, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-02-1884

 

Heather M. Pasket, petitioner,

Respondent,

 

vs.

 

Thomas M. Hale,

Appellant.

 

Filed June 10, 2003

Affirmed Hudson, Judge

 

Ramsey County District Court

File No. F80150896

 

Tracey A. Galowitz, Barbara Wolle Lorenzsonn, Lawson, Marshall, McDonald & Galowitz, P.A., 3880 Laverne Avenue North, Lake Elmo, Minnesota 55042 (for respondent)

 

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, Minnesota 55101 (for appellant)

 

            Considered and decided by Hudson, Presiding Judge, Minge, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            In this child support dispute, appellant-father Thomas Hale argues that the district court abused its discretion by awarding respondent-mother Heather Pasket the tax dependency exemption for the child, lacked authority to order past child support because there was no request to reimburse the county for public assistance, and overstated his past child support obligation.  Because the district court correctly applied the law and did not otherwise abuse its discretion, we affirm.

FACTS

            In January 1998, the parties had a child and father signed a recognition of parentage for the child.  After the parties separated in August 1999, the child stayed with mother, and father paid various amounts to mother.  In August 2001, the county and mother sued father, seeking a formal support determination.  Father then sued to establish paternity.  The cases were consolidated and a referee set father's prospective monthly support obligation at the guideline amount of $578.57; found, based on this obligation, that father owed $8,330.25 in past support; and awarded mother the tax dependency exemption for the child.  The district court approved the referee's order.  Father appeals. 

DECISION

I

            Father argues that the district court abused its discretion in awarding mother the tax dependency exemption for the child because it causes him financial hardship.  A custodial parent is presumptively entitled to the dependency exemption for a child in her custody, but the district court has the discretion to award the exemption to a noncustodial parent.  Rogers v. Rogers, 622 N.W.2d 813, 823 (Minn. 2001). 

            The district court found that mother's monthly expenses for herself and the child are $3,324.85.  After accounting for her net monthly income ($1,530), her receipt of child support ($578.57), and father's monthly child-care contribution ($145.77), mother has a monthly deficit of $1,070.51, without considering father's obligation to reimburse mother for past support.  The district court did not determine father's monthly expenses, but it did adopt as his net monthly income a $2,314.30 figure used in prior orders.  Thus, after paying his monthly obligations to mother (totaling $840.05), father has $1,474.25 to meet his own expenses. 

Father's September 18, 2001 affidavit alleged that his monthly expenses were then $2,449.39.  Assuming this assertion is (still) accurate, he has a $975.14 monthly deficit; $95.37 less than mother's monthly deficit.  Also, the district court calculated the child support and child-care amounts assuming that mother would take the tax dependency exemption.  Thus, while awarding mother the exemption does create a deficit for father, it leaves mother and the child with a greater deficit.  On this record, the district court's award of the tax dependency exemption to mother was not an abuse of its discretion.  Cf. Rogers, 622 N.W.2d at 823 (reversing this court's reversal of district court's award of dependency exemptions, stating "there was sufficient evidence to support the district court's conclusion that it would not be in the best interests of the children to award all three federal and state income tax dependency exemptions to [father]").

II

            Without citing any authority, the district court awarded mother $8,330.25 in past support.  The county's complaint sought past child support pursuant to Minn. Stat. §§ 256.87 and 257.75 (2000).  Father argues that because Minn. Stat. § 256.87, subd. 5 (2000) is inapplicable to this case, the district court lacked authority to award past support.  Father is partially correct.  Section 256.87 addresses the contribution of parents to the cost of raising a child.  Under subdivision five of that statute, if public assistance is not being provided to a child, the person having custody of a child has a cause of action against the noncustodial parent(s) for child support.  Minn. Stat. § 256.87, subd. 5.  Subdivision five, however, "applies only if the person or entity has physical custody with the consent of a custodial parent or approval of the court."  (Emphasis added.)  Here, custody was contested and, other than the order awarding mother temporary sole physical custody, there was no court approval of the mother's status as physical custodian.

But on appeal, mother does not claim that Minn. Stat. § 256.87, subd. 5 applies.  More importantly, while the complaint sought past support under Minn. Stat. § 256.87, it also sought past support under Minn. Stat. § 257.75 (2000).  That provision states that when a man signs a recognition of parentage, the mother has sole physical custody of the child until a court awards custody to another person, and that the recognition of parentage is "a basis" for establishing a child support obligation "which may include up to the two years immediately preceding the commencement of the action[.]"  Minn. Stat. § 257.75, subd. 3 (2002).  Thus, father's recognition of parentage allowed the district court to award past support. 

That father's paternity proceeding was consolidated with the support proceeding does not alter his liability for past support.  If born to unwed parents, a mother "has sole custody of the child until paternity has been established."  Minn. Stat. § 257.541, subd. 1 (2002).  And paternity determinations "shall" address support.  Minn. Stat. § 257.66, subd. 3 (2002).  When setting support in a paternity proceeding,

[t]he court shall limit the parent's liability for past support of the child to the proportion of the expenses that the court deems just, which were incurred in the two years immediately preceding the commencement of the action. 

 

Minn. Stat. § 257.66, subd. 4 (2002).  Thus, regardless of whether past child support was awarded as a function of father's recognition of parentage or his paternity proceeding, the district court had authority to award two years of past support. 

III

Father argues the district court's award to mother of $8,330.25 in past support overstates his obligation.  Past support determinations are reviewed for an abuse of discretion.  McNeal v. Swain, 477 N.W.2d 531, 533-34 (Minn. App. 1991). 

Apparently based on McNeal, father alleges that the past-support determination is defective because there are no findings on certain factors mentioned in McNeal.  After McNeal was issued, however, Minn. Stat. § 257.66, subd. 4, was amended to include provisions stating that "the court may deviate downward from the guidelines if" the child is age five or older, the obligor is custodian of, or pays support for, other children, and the obligor's family income amounts to less than 175% of the federal poverty level.  See 1995 Minn. Laws ch. 257, art. 1, § 18 (now codified at Minn. Stat. § 257.66, subd. 4 (2002)).  The cases father cites supporting his argument on this point predate the amendment.[1]  Because the amended statute lists the circumstances under which a past-support obligation may deviate from the guideline amount, it is those factors that must be addressed.  And because the guidelines do not require findings other than the obligor's net monthly income (which was made) and the number of children from whom support is owed (which is not disputed), we conclude that any lack of McNeal findings is not fatal to the determination of this father's past support obligation.  See Minn. Stat. § 518.551, subd. 5(b) (2002). 

            Father also argues that the district court erred by using father's current income to set his past support.  Father alleges that this calculation overstates his past support obligation by $997.68 because the district court "had available * * * wage-match information from the county indicating that [father's] ‘guideline' child support for the period in question should have been $537.00, not $578.57."  For purposes of this appeal we will assume that $537 is the correct figure.  Although the record suggests that father has a monthly deficit, mother has waived any right she might have had to collect for past child-care costs.  In addition, mother and the child have a larger deficit than father; and the amount in question is less than $42 per month for the relevant period.  Therefore, we conclude that, on this record, any error is de minimis and we decline to reverse the district court's findings on that basis.  Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (de minimus error not ground for reversal).[2] 

Affirmed.

 

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

 

[1] While some post-amendment cases have recited the McNeal factors, those cases have not addressed the amendment's impact on the necessity of the McNeal findings.  See, e.g., LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2000), review denied (Minn. May 16, 2000); Berg v. D.D.M., 603 N.W.2d 361, 365 (Minn. App. 1999), review denied (Minn. Mar. 14, 2000). 

[2] To the extent father argues that he should have been given credit for certain child-care contributions he made, we note that mother argues that these amounts were included in the amount for which the district court gave father credit and that the district court did not address the question.  This court generally addresses only those questions that were presented to and considered by the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).