In re the Marriage of: Joseph M. Kemp, petitioner, Respondent, vs. Sara N. Kemp, n/k/a Sara N. Lipetzky Kemp, Appellant.

In re the Marriage of: Joseph M. Kemp, petitioner, Respondent, vs. Sara N. Kemp, n/k/a Sara N. Lipetzky Kemp, Appellant. A05-2039, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and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

A05-2039

 

In re the Marriage of:
Joseph M. Kemp, petitioner,
Respondent,
 
vs.
 
Sara N. Kemp, n/k/a Sara N. Lipetzky Kemp,
Appellant.

 

Filed August 22, 2006

Affirmed

Stoneburner, Judge

 

Redwood County District Court

File No. F302578

 

Kathy K. Hart, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for respondent)

 

Sara J. Runchey, Runchey, Louwagie & Wellman, P.L.L.P., 533 West Main Street, P.O. Box 1043, Marshall, MN 56258 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            Appellant challenges a child-support modification arguing that the district court failed to give due consideration to the parties' child-support stipulation contained in the dissolution judgment, erred in its findings, failed to consider her ability to pay guideline support, and miscalculated respondent's current net monthly income.  We affirm.

FACTS

 

            At the time of the parties' dissolution, appellant Sara Lipetzky Kemp (mother) had a net monthly income of $1,585 and her average monthly living expenses were $3,265.  Respondent Joseph Kemp (father) had a net monthly income of $2,357 and his average monthly living expenses were $3,647.  The judgment, based on the parties' stipulation, awarded father sole physical custody of the parties' two minor children subject to mother's parenting time under a detailed schedule set out in the judgment. 

            In lieu of child support, the parties agreed that each would provide the basic needs of the children while the children were in his or her care (housing, clothing, food).  They further agreed that each would pay, in proportion to their respective net incomes: work and education-related daycare, school expenses, extra curricular activities and fees, sports equipment and associated costs, sports or other lessons, and other miscellaneous costs incurred on behalf of the minor children.  Based on their earnings at the time of dissolution, the judgment provided that father would pay 60% and mother 40% of such expenses.  The record does not reflect the actual amount of money that either party provided to the other under this agreement.

            Approximately two years after the judgment was entered, father moved for an order requiring mother to pay guideline child support.  Father argued that mother's increased income and father's inability to meet his monthly expenses for him and the children constituted a change of circumstances that made the support agreement unreasonable and unfair.  The district court granted father's motion and ordered mother to pay guideline support in the amount of $668.40 per month.  This appeal followed.

D E C I S I O N

            We review a district court's order modifying child support for an abuse of discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  An abuse of discretion occurs when the district court resolves the matter in a manner that is "against logic and the facts on [the] record."  Id.  We will generally not disturb a district court's determination of child support if it has a reasonable and acceptable basis in fact.  Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn. App. 1984).

I.          Consideration of support stipulation

            Mother first argues that the district court did not give sufficient weight to the parties' stipulation concerning child support.  Mother argues that the district court should have continued enforcing the stipulation and, if necessary, merely adjusted the proportion of her responsibility for the agreed-upon expenses based on her increased income.             

            Because child support relates to nonbargainable interests of children, a child-support stipulation is one factor to be considered in determining a modification motion, but child support "is less subject to restraint by stipulation than are other dissolution matters."  Maxson v. Derence, 384 N.W.2d 583, 585 (Minn. App. 1986).  "[C]hild support stipulations are to be given less weight than other stipulations."  Murray v. Murray, 425 N.W.2d 315, 317 (Minn. App. 1988). 

The basic right of minor children to support by the parents may not be affected by any agreement between the parents or third persons.  Courts will not be bound by an agreement between parents affecting the rights of minor children with respect to support, but will be controlled by the welfare of the child as the paramount consideration. 

 

Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (Minn. 1970).

Contrary to mother's assertion, the district court's findings demonstrate that it clearly considered the parties' stipulation but the district court found that guideline support

affords a greater protection of the children's needs and best interests. Not only will the payments be subject to administrative supervision, to ensure compliance . . . the consistent stream of monies will also afford [father] a greater ability to more effectively establish a budget that meets both the needs and best interests of the children. 

 

Mother makes the policy argument that parties will never enter into agreements concerning child support if the court can later disregard such agreements.  But the case law regarding child-support agreements existed at the time of the parties' stipulation, and mother should have been aware that a child-support stipulation would not be binding on the district court in the event of a justified motion for modification.  Based on the case law and the record, we conclude that the district court gave the parties' stipulation all of the consideration that it was due and did not abuse its discretion by questioning the original wisdom of the agreement or imposing guideline support at this time.

II.        Changed circumstances

            Mother also agues that the district court erred in finding a substantial change in circumstances that makes the previous order regarding child support unreasonable or unfair.  The district court found that after the dissolution judgment was entered, mother's monthly net income has increased approximately 40% to $2,228 and her average monthly expenses decreased to approximately $2,517.50.  Mother does not challenge these findings and agreed, at oral argument before this court, that her income change could be considered a substantial change of circumstances that warranted at least an adjustment in her share of the children's expenses. 

            The district court found that, in the same time period, father's monthly net income increased 1% to approximately $2,375.24 and his average monthly expenses decreased to approximately $3,516.14.  The district court found that the majority of father's expenses incurred in caring for the children are for basic needs, which are not covered by the "expense-sharing" stipulation contained in the judgment.  As a result of the stipulation, father, the custodial parent, owes money to the non-custodial parent at the end of some months.  The district court found that father has resorted to charging mother mileage costs for transporting the children to and from some activities and her home and has obtained a bank loan to cover his expenses.  These findings are supported by the record.  The record also supports the district court's finding that mother's increased income constitutes a change in circumstances, noting that her increased income would have created a rebuttable presumption of changed circumstances supporting modification under Minn. Stat. § 518.64, subd. 2(b)(1) (2004), if she had been paying guideline support under the judgment.[1]  We find no merit in mother's argument that there has not been a change in circumstances or that the change does not make the current support arrangement unreasonable and unfair. 

            Mother relies on O'Donnell v. O'Donnell, 678 N.W.2d 471, 477 (Minn. App. 2004), to argue that there are insufficient changes to overcome the parties' child-support stipulation, and that the statutory presumption embodied in Minn. Stat. § 518.64, subd. 2(b)(1), should not be read as mandating modification.  But the facts in O'Donnell are significantly different from the facts in this case.  O'Donnell's motion for modification of a stipulated downward deviation from the guidelines was made only five months after the dissolution and was based on father's claim of increased expenses that included expenses for an emancipated child and expenses he could have foreseen at the time of the agreement.  Id.  We do not find O'Donnell controlling in this case.  In Allan v. Allan, 509 N.W.2d 593, 596 (Minn. App. 1993), we declined to create a different modification standard merely because the modification would modify a stipulated formula for calculating child support, and held that a child-support obligation may be changed from a percentage formula to a specific dollar amount on a showing of a substantial change in circumstances that makes the terms of the existing order unreasonable and unfair.  Id.Because father has made the required showing, the district court did not err by changing mother's support obligation to a specific dollar amount.

III.       Children's needs and best interests

            Mother asserts that the district court erred in finding that the needs of the children were not being met and that the children's best interests would be served by modifying child support.  But the district court did not make a finding that the children's needs were not being met.  The dispute was about the reasonableness and fairness of the manner in which the children's needs are being met.  Determination of child support involves an allocation of the support obligation between parents.  Minn. Stat. § 518.64 does not mandate a finding that a child's needs are not being met to support modification of support.

            The district court's finding that a consistent child-support obligation will facilitate better budgeting is based on common sense.  Because both parents continue to have expenses that exceed income, we cannot conclude that the district court abused its discretion by stabilizing the support obligation by imposing guideline support and by concluding that doing so is in the best interests of the children.

IV.       Mother's ability to pay

            Mother argues that the district court failed to consider her ability to pay guideline support.  Mother cites County of Anoka ex rel Hassan v. Roba, 690 N.W.2d 322 (Minn. App. 2004), for the proposition that if an obligor submits evidence to show lack of ability to pay, the fact finder must make findings to show that it considered whether a deviation is necessary.  Aside from the fact that mother (like father) continues to have expenses that exceed income, there is no evidence in the record that mother is unable to pay guideline support.  With the modification, mother is relieved of her obligation to pay 40% of the children's extra expenses and any obligation to provide clothing for the children, although she will continue to have, as do all non-custodial parents, expenses for shelter and food for the children while they are in her care.  Mother failed to provide any evidence from which the district court or this court can determine that mother's obligation is increased by the order requiring guideline support.  On this record, we conclude that mother did not make a showing of inability to pay that triggered the fact finding required by Roba.

V.        Calculation of father's income

            Mother challenges the district court's rejection of her calculation and acceptance of father's calculation of father's net monthly income.  The district court accepted father's retirement contribution as reasonable, and credited his evidence that income from other sources is no longer available to him.  And the difference between the parties' calculations (approximately $210) does not affect any of the district court's conclusions regarding the reasonableness of support modification.  Mother cites cases involving calculation of an obligor's income for purposes of child support.  But father is not the obligor.  We conclude that the district court's calculation of father's income, even if not exact, does not require reversal.

            Affirmed.

[1] "It is presumed that there has been a substantial change in circumstances . . . and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if: (1) the application of the child support guidelines . . . to the current circumstances of the parties results in a [support obligation] that is at least 20 percent and at least $50 higher or lower than the current support order."  Minn. Stat. § 518.64, subd. 2 (b)(1).