In re the Matter of: Craig Adam Cohen, Appellant, vs. Lora Elizabeth Vokaty, Respondent.

In re the Matter of: Craig Adam Cohen, Appellant, vs. Lora Elizabeth Vokaty, Respondent. A05-631, Court of Appeals Unpublished, January 31, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-631

 

In re the Matter of:

Craig Adam Cohen,

Appellant,

 

vs.

 

Lora Elizabeth Vokaty,

Respondent.

 

Filed January 31, 2006

Reversed and remanded Willis, Judge

 

Ramsey County District Court

File No. F9-04-50047

 

 

John M. Jerabek, Jade Johnson, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN  55402 (for appellant)

 

Elizabeth J. Richards, Pierce Richards Law Office, 2230 Carter Avenue, Suite 10, Saint Paul, MN  55108 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant-father challenges the award of child support and attorney fees to respondent-mother.  Because the district court's findings regarding the parties' incomes are clearly erroneous, we reverse and remand.

FACTS

Appellant-father Craig Cohen and respondent-mother Lora Vokaty have one minor child born out of wedlock.  In January 2004, Cohen filed a complaint requesting child support from Vokaty and sole legal and physical custody of the child.  The parties stipulated to temporary parenting time, temporary monthly child support for Vokaty, and miscellaneous expenses to be paid by Cohen.  In October 2004, Cohen moved for a determination of permanent custody, parenting time, and permanent child support using the Hortis/Valento formula.  At the hearing on Cohen's motion, the parties stipulated to joint legal and physical custody, with the child spending nine of every 14 days with Cohen and the remaining five days with Vokaty.  The district court issued an order reflecting the parties' stipulation, applied the Hortis/Valento formula, and ordered Cohen to pay $871.86 per month in child support and $3,680 for Vokaty's attorney fees.  This appeal followed. 

D E C I S I O N

I.

Cohen contends that the district court erred in its calculation of the parties' incomes and therefore in its determination of Cohen's child-support obligation.  A  district court's finding of net income will be affirmed on appeal if the finding has a reasonable basis in fact and is not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999). 

Cohen first challenges the calculation of his income.  The district court found that Cohen's net monthly wage income was $2,757.  But the district court also found that Cohen received regular gift income of $2,000 per month and unlimited use of a credit card from his father.  Cohen argues that the district court erred by including as income money he received from his father.  "[I]f a gift is regularly received from a dependable source, it may properly be used to determine the amount of a child support obligation."  Barnier v. Wells, 476 N.W.2d 795, 797 (Minn. App. 1991.)  The record supports the district court's finding that Cohen receives regular gift income from his father.  Cohen's father stated in an affidavit that (1) he has "provided approximately $2,000 per month for [Cohen's] expenses"; (2) he allowed Cohen to use his credit card in 2004 to pay "extraordinary expenses"; and (3) he paid Cohen's attorney fees in this case and for a private custody evaluation.

The district court also found that Cohen has "regular income from family businesses/trusts" and that these "financial resources" support an "assumption of the statutory maximum [income] of $6,975 a month."  Cohen argues that the district court did not make an "explicit finding that [he] actually received any income from his trust, or that the trust could be accessed."  An assumption is not a finding of the amount that Cohen receives from family businesses and the trust,  and the absence of a finding makes effective appellate review difficult and unnecessarily complicates future modification motions.  See Minn. Stat. § 518.64, subd. 2(a) (2004) (providing the bases on which support orders may be modified); Maschoff v. Leiding, 696 N.W.2d 834, 840 (Minn. App. 2005); see also Bormann v. Bormann, 644 N.W.2d 478, 482 (Minn. App. 2002) (stating that the "requirement that district courts make particularized findings on child-support issues ensures effective appellate review and offers children and both parents the benefits of a careful, complete judicial analysis of support obligations") (quotation omitted).

The district court made a finding that Cohen "has substantial financial resources," including a trust of which he is the beneficiary and interests in two businesses.  The district court also found that the value of one of the businesses was between $815,000 and $1.4 million.  But the district court did not make a finding of the actual amount of income Cohen received from these resources.  While the record supports the finding that Cohen received nonwage income between 2000 and 2002, the district court clearly erred by making an assumption rather than making a finding regarding the amount of income Cohen receives from "family businesses/trusts," and on remand the district court must make such a finding.

            Cohen next challenges the district court's determination that Vokaty had no monthly income for child-support purposes.  He first disputes the district court's finding that Vokaty's "educational loans and grants are all consumed for tuition and books" and argues that she received $1,149 per semester in excess of her tuition and books.  Student-loan money in excess of educational expenses is considered income to the recipient for child-support purposes.  Gilbertson v. Graff, 477 N.W.2d 771, 774 (Minn. App. 1991).  Vokaty's student-loan award for the 2004 fall semester was $5,645.  Her "student account statement" for that semester shows a total charge of $5,297, including bookstore charges totaling $214.  But her student account statement also includes a $1,149 entry shown as "stu refn;l vokaty."  And although Vokaty claims that she "does not have any excess proceeds from her loans or grants," she offered no evidence that, in addition to tuition, her education-related expenses were the $214 in bookstore charges plus $1,149 or more per semester.  The district court made no finding regarding the nature of the $1,149 entry, which appears on its face to be a refund to Vokaty.  Without such a determination, we conclude that the finding that Vokaty has no excess student-loan funds has no reasonable basis in the record.  We remand for reconsideration of whether Vokaty's student loans and grants are completely consumed by education-related expenses and, if not, what portion of the loans and grants is income to Vokaty.

Cohen also challenges the district court's finding that Vokaty's monthly social-security benefits are not income.  "Income" includes "disability payments."  Minn. Stat. § 518.54, subd. 6 (2004).  But benefits received under Title IV-A of the Social Security Act, which provides assistance to needy families with children, are not income.  See Minn. Stat. § 518.54, subd. 6; 42 U.S.C. § 601(a)(1) (2000).  In the proceedings before the district court, Vokaty described the social-security payments that she receives as "social security disability."  In her brief on appeal, she describes the payments as "social security income" and a "social security grant."  Because the record does not show whether Vokaty receives social-security disability benefits or benefits under Title IV-A of the Social Security Act, the district court's finding that the benefits are not income is not supported by the record.  On remand, the district court must determine the nature of the social-security benefits that Vokaty receives, thereby determining whether they are income.

Cohen next argues that the district court erred in its application of the Hortis/Valento formula by using an incorrect parenting-time ratio.  "Application of the Hortis/Valento formula to cases of joint physical custody is an application of the guidelines."  Schlichting v. Paulus, 632 N.W.2d 790,792 (Minn. App. 2001).  Under the formula, "the guideline child support amount is the amount indicated by the guidelines, but only for the periods of time that the other parent has actual custody" of the child.  Id.  "Thus, the presumptively correct, guideline child-support amount for parents with joint physical custody is the amount calculated under Minn. Stat. § 518.551, subd. 5(b), for each parent, less the amount offset by the Hortis/Valento formula."  Id. at 793.  Any deviation from this amount requires findings under Minn. Stat. § 518.551, subd. 5(i).  Id.  We will "not reverse the trial court's decision on child support . . . unless that decision was clearly erroneous."  Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984).

The district court ruled that "[a]pplication of the Hortis-Valento formula has a 50% reduction due to the time the minor child is in [Cohen's] care."  But under the district court's custody order, the child actually spends nine of every 14 days, or 64% of the child's time, with Cohen, meaning that Cohen's presumptively correct support obligation is 36% of the normal monthly guideline amount and that his presumptively correct net support payment is, therefore, 36% offset by Vokaty's support obligation.  See Maschoff, 696 N.W.2d at 837 (describing application of Hortis/Valento formula).  When, as here, a district court orders support that is a deviation from the guidelines, it "shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in [Minn. Stat. § 518.551, subd. 5(c)] and how the deviation serves the best interest of the child."  Minn. Stat. §  518.551, subd. 5(i) (2004).  But the district court made no findings regarding (1) the amount of support that would be due under the Hortis/Valento formula; (2) the reasons it deviated from the support calculated by the Hortis/Valento formula; (3) the statutory factors under Minn. Stat. § 518.551, subd. 5(c); or (4) how deviating from the presumptive amount of child support serves the best interests of the child.  Because the district court did not make the necessary findings, its deviation from presumptive child support was clearly erroneous.  On remand, the district court must recalculate the parties' support obligations and make the findings necessary for any deviation from guidelines support.

II.

Finally, Cohen argues that the district court erred by awarding need-based attorney fees to Vokaty.  An award of attorney fees rests within the discretion of the district court and will not be reversed absent a clear abuse of that discretion.  Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).

Cohen first contends that Vokaty's attorney failed to include "a specific bill with her attorney fee affidavit."  When an attorney seeks fees of $1,000 or more, an application must be made by motion and accompanied by an affidavit from the attorney describing each item of work performed, the time spent on each item of work, and the hourly rate for the work performed.  Minn. R. Gen. Pract. 119.01-.02.  "This rule is not intended to limit the court's discretion, but is intended to encourage streamlined handling of fee applications."  Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999) (quotation omitted).  When the "court is familiar with the history of the case and has access to the parties' financial information, it may waive the requirements of Rule 119."  Id.  The affidavit of Vokaty's attorney provided her hourly billing rate, the total hours of work performed on Vokaty's behalf, and the total costs incurred, but did not include a description of each item of work performed.  The attorney later attached copies of her billing records, which included descriptions of each item of work performed, to a memorandum submitted to the district court.  Because the district court was familiar with the case and had access to the parties' financial information, it did not abuse its discretion by awarding attorney fees to Vokaty despite the fact that her attorney did not include in her affidavit a description of each item of work performed.

Cohen also argues that he does not have the means to pay the attorney fees and that Vokaty should be responsible for her own attorney fees.  The district court shall award attorney fees when (1) the fees are necessary for the good-faith assertion of the requesting party's rights and will not contribute to unnecessary delay and expense; (2) the party from whom fees are sought has the means to pay them; and (3) the requesting party does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1 (2004).  Because we are remanding the issue of the parties' incomes, the issue of attorney fees also must be reconsidered on remand.

The district court may, in its sole discretion, reopen the record on remand.

Reversed and remanded.