In Re the Marriage of: Marian W. Wines, petitioner, Respondent, vs. Fred J. Wines, Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-557

In Re the Matter of:

Traci Lee Jowett,
Appellant,

vs.

James Patrick Wiles,
Respondent.

 

Filed December 7, 1999
Affirmed in part and remanded in part
Randall, Judge

Dakota County District Court
File No. F4-98-50170

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

Elizabeth Anderson Holt, Holt & Anderson, Ltd., Anchor Bank Building, 14665 Galaxie Avenue, Suite 110, P.O. Box 240194, Apple Valley, MN 55124 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Foley, Judge.[*]

 

U N P U B L I S H E D   O P I N I O N

RANDALL

, Judge

Appellant argues the district court erred when it considered the fact respondent is raising a child from a previous marriage and deducted 25% from respondent's net monthly income when determining child support for the parties' minor child. Appellant also insists the district court erred when it granted respondent's motion to change the child's surname, arguing respondent failed to prove that it was in the child's best interests to do so. We affirm in part and remand in part.

 

FACTS

Appellant Traci Lee Jowett is the mother of R.N.J., born on January 16, 1998. In April 1998, respondent James Patrick Wiles commenced this paternity action in Dakota County District Court and requested that blood testing be ordered for the parties and the minor child. Later blood test results indicated Wiles's likelihood of paternity to be 99.081%.

In his amended summons and complaint, Wiles requested that he be adjudicated the father, share legal and physical custody of R.N.J., and have liberal visitation. He also asked that R.N.J.'s surname be changed to R.N.W. and that a guardian ad litem be appointed. Following a hearing and numerous submissions by the parties, the district court adjudicated Wiles the father of R.N.J. The district court ordered Wiles to pay $475 per month in child support, granted the parties' joint legal custody, awarded Jowett sole physical custody, ordered liberal visitation for Wiles, and changed the child's name to R.N.J.W.

In determining child support for R.N.J.W., the court considered that Wiles has custody and is supporting an older child from a previous marriage. The court found Wiles's net monthly income to be $2,530 and that the cost of caring and providing for this child was approximately 25% of that amount. Noting that the mother of that child moved out of state, remarried, and provides no support for the child, the court deducted the 25% from Wiles's net monthly income and then applied the guidelines to that amount. Based on a recalculated net monthly income of $1,900, Wiles was ordered to pay $475 per month in child support.

Jowett moved the district court for amended findings or a new trial, arguing (1) the court erred in determining current child support because it improperly considered that Wiles has custody and is providing care to his child from a previous marriage, and (2) Wiles's motion to change the child's surname was unsupported by the evidence and the court's order was not supported by the necessary findings.

The district court denied Jowett's motion to amend, ruling that it would be "inherently inequitable" to not consider that Wiles provides support for his older child. The court also found that it was in the child's best interests to have his father's surname because it would, in part, "encourage a positive relationship with the non-custodial father." The court noted that Jowett opposed the name change solely because she wants no contact or relationship with Wiles. The court concluded this was an insufficient basis to choose Jowett's surname over Wiles's surname. This appeal follows.

 

D E C I S I O N

The award of child support rests within the broad discretion of the district court. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Before this court will find an abuse of discretion, there must be a clearly erroneous conclusion that is against logic and the facts on record. Id.

Under the guidelines, child-support obligations are based on the obligor's monthly "net income." Minn. Stat. § 518.551, subd. 5(b) (1998). In determining an obligor's net monthly income, the court shall not include a "Child Support or Maintenance Order that is Currently Being Paid." Minn. Stat. § 518.551, subd. 5(b)(viii) (1998). In determining child-support payments, courts are required to consider pre-existing child-support obligations. See, e.g., Wollschlager v. Wollschlager, 395 N.W.2d 134, 136 (Minn. App. 1986) (if paying prior support, individual is entitled to have amount deducted from his income in determining new obligation under guidelines); Packer v. Holm, 364 N.W.2d 506, 507 (Minn. App. 1985) (district court did not abuse its discretion in departing from child support guidelines as a result of respondent's preexisting child support obligation). The district court, therefore, "can consider the obligor's current family obligations in determining the obligor's available resources." Hayes v. Hayes, 473 N.W.2d 364, 365 (Minn. App. 1991) (citations omitted).

Here, Wiles is the custodial parent of an older child from a previous marriage. The district court estimated that the costs associated with the care of this older child amounted to 25% of Wiles's net monthly income. The district court deducted this amount from Wiles's net monthly income and then applied the guidelines to that reduced amount to determine child support. Jowett argues that the district court could not make such a deduction under the guidelines because Wiles is not under a prior support obligation for that child.

Case law does not support appellant's proposal for an inflexible application of Minn. Stat. § 518.551, subd. 5(b). In Mancuso v. Mancuso, 417 N.W.2d 668 (Minn. App. 1988), this court departed from the strict rule that deviation from the guidelines is only appropriate in those particular cases where the custodial parent is under a support obligation currently being paid. In that case, father had both physical and legal custody of four children from a previous marriage. Id. at 670. This court rejected a strict reading of the statute, reasoning:

The effect of blindly applying guidelines in cases which involve both public assistance and an obligor who has children from a previous marriage is tantamount to a declaration that a parent's obligation to these prior children will be recognized only when these children reside elsewhere than with the obligor and the obligor is under a court order of child support. We cannot accept that the legislature would have intended such an inequitable application of the statute.

Id.

at 673. The court made clear that a downward departure from the guidelines is not limited to those cases where the parent is paying child support. Instead, the appropriate analysis is to determine an adequate child support level after carefully considering all the relevant factors, including father's sole responsibility for supporting other children. Id. at 673.

Here, the district court recognized the inequity that would result if the guidelines were blindly applied. The court refused to ignore the fact that Wiles has a financial obligation to provide for his older son living with him. The court stated that "[c]hild support guidelines are not designed to be strictly applied where it would mean ignoring the responsibility [Wiles] has toward his older child." According to the court, "[t]o calculate child support guidelines without considering those obligations is inherently inequitable." We agree.

Applying the guidelines strictly in the present case ignores Wiles's obligation to his older son and leads to an inequitable result. If the older child did not live with Wiles and Wiles was governed by a prior child support order, the district court's deduction would be made without question pursuant to Minn. Stat. § 518.551, subd. 5 (b)(viii), and would not constitute a deviation from the guidelines. Case law is clear that the court must consider the obligor's current family obligations in determining a present child support obligation. See Hayes, 473 N.W.2d at 365 (stating court is to consider obligor's current family obligations in determining resources available to obligor for purposes of child support); Mancuso, 417 N.W.2d at 673 (holding for purposes of determining current child support obligation, district court must consider all relevant factors, including obligor's support obligation for previous children). On these facts, we conclude that the district court properly considered Wiles's obligation to his older son and did not abuse its discretion in determining Wiles's net monthly income and setting child support.

Next, Jowett argues the district court abused its discretion when it granted Wiles's motion to change the child's surname because there was no evidence presented to support a finding that it was in the best interests of the child to do so and the court failed to make the required findings under the statute.

"This court reviews name changes under an abuse of discretion standard." In re Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. App. 1994). When ordering a change in the child's surname against the objection of one parent, the district court should exercise its discretion with "great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change." Robinson v. Hansel, 302 Minn. 34, 36, 223 N.W.2d 138, 140 (1974). In determining the child's best interests, the court must consider, but is not limited to, the following factors:

(1) how long the child has had the current name, (2) any potential harassment or embarrassment the change might cause, (3) the child's preference, (4) the effect of the change on the child's relationship with each parent, and (5) the degree of community respect associated with the present and proposed names.

C.M.G.

, 516 N.W.2d at 561 (citation omitted).

Here, the district court found that the child is just over a year old and not old enough to be familiar with a certain surname; the issue of community respect has no bearing in the present case because neither name lends itself to any particular respect or embarrassment; it is no longer considered unusual nor difficult for a child to have a surname different from one of his or her parents; and the child is an only child and there is no problem with siblings having the same or different surnames. The court continued, finding that

[f]or the child to have the same last name as his father would encourage a positive relationship with the non-custodial father, as it would demonstrate to the child as he got older the fact that his father wishes to have a continuous and strong relationship with him.

We are satisfied that the district court engaged in a meaningful and detailed consideration of each factor as it relates to the child's present and future and the court's findings are supported by the evidence in the record. Ultimately, the court concluded that it was in the best interests of the child to share the same surname as his non-custodial father because it would foster a closer relationship between him and his father. The district court considered the best interests of the child and did not abuse its discretion when it granted Wiles's motion to change the child's surname.

We reject Jowett's argument that Wiles waived his right to have input into selecting the child's surname because he initially denied paternity. Under Jowett's reasoning, an individual alleged to be the child's father would risk losing the opportunity to have the child share his surname, and arguably a closer relationship with the child, if he initially challenges paternity. To accept Jowett's argument would unnecessarily punish an individual for legitimately challenging paternity. We decline to adopt a harsh and unyielding rule. We refuse to reverse the district court's decision on this basis.

Lastly, we note there is some confusion at to the district court's order regarding the child's name. In its original order dated December 29, 1998, the court ordered the child's name to be changed to R.N.J.W. (we use initials to protect the identity of juveniles - the court will order the full name). But in its order dated February 19, 1999, the court stated that the child's name shall be R.N.W. We remand for the district court to clarify its decision regarding the child's surname.

 Affirmed in part and remanded in part.

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