In re the Marriage of: Terri Elizabeth Powers, f/k/a Terri Elizabeth Duncan, petitioner, Respondent, vs. Christopher Hallman Duncan, Appellant, and Hennepin County, Intervenor.

This opinion will be unpublished and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

A04-19

 

In re the Marriage of:

Terri Elizabeth Powers,

f/k/a Terri Elizabeth Duncan, petitioner,

Respondent,

 

vs.

 

Christopher Hallman Duncan,

Appellant,

 

and

 

Hennepin County,

Intervenor.

 

Filed October 5, 2004

Remanded Willis, Judge

 

Hennepin County District Court

File No. DC 181977

 

 

Terri Elizabeth Powers, 3515 Deephaven Avenue, Deephaven, MN 55391 (pro se respondent)

 

Christopher H. Duncan, 6824 Valley View Road, Edina, MN  55439 (pro se appellant)

 

            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, 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 child-support magistrate's determination that his minor daughter does not live with him and he does not provide for her support and that, therefore, respondent-mother is not obligated to pay child support.  Because the magistrate failed to identify a basis for relieving respondent-mother from the obligation of paying support, we remand. 

FACTS

Appellant-father Christopher Hallman Duncan and respondent-mother Terri Elizabeth Powers were married in 1982.  They have two daughters, the younger of whom is J.L.D., born December 6, 1987.  The marriage was dissolved in 1994, and the judgment granted father and mother joint custody of the children, with mother receiving sole physical custody and father having scheduled visitation.  Father also was required to pay guidelines child support.  In July 2000, father and mother agreed to an amended judgment, granting father sole physical custody of the children, giving mother scheduled visitation, and reserving the issue of child support.

Because father received child-support services from Hennepin County, on November 21, 2002, the county moved for the establishment of a guidelines child-support obligation for mother.  Mother moved for an order establishing child support by applying the Hortis/Valento formula[1] and requiring father to pay his portion of J.L.D.'s unreimbursed medical expenses.  With her motion, mother submitted an affidavit stating that since January 2003, J.L.D. had spent equal amounts of time residing with father and mother. 

After two continuances, a hearing on the motions was held before a child-support magistrate (CSM) on June 5, 2003.  Mother was represented by counsel, and father appeared pro se.  Father and the county sought guidelines child support from mother retroactive to December 2002.  Mother opposed the county's motion, arguing that the older child was emancipated and that guidelines child support was not appropriate with regard to J.L.D. because, even though father had sole physical custody under the amended dissolution judgment, J.L.D. actually spent an equal amount of time under mother's care, and mother, therefore, had de facto 50 percent physical custody and had satisfied her child-support obligation by providing care for J.L.D.

Mother testified that J.L.D. had lived with her approximately one-half of the time during January, February, and March 2003 but had spent almost no time at her home in April and May.  When asked where J.L.D. currently lived, mother testified that J.L.D. had "not spent much time" at either parent's house lately and that instead J.L.D. had been staying "at several different friends' houses."  Father testified that J.L.D. had spent only one to four nights per month at mother's home from December 2002 through May 2003 and that J.L.D. lived "primarily" at his home. 

On June 27, the CSM issued findings of fact, conclusions of law, and an order denying the county's motion to establish child support.  The CSM found that (1) J.L.D. does not live with either parent but rather lives with friends, (2) there was no basis to require mother to pay child support to father because J.L.D. did not live with father and father did not support J.L.D. other than paying medical copayments and prescription medicine costs that he was obligated to pay under the amended dissolution judgment, and (3) J.L.D.'s older sibling was emancipated, effective June 30, 2003.  The CSM further found that the evidence did not support mother's claim that J.L.D. spent 50 percent of her time with mother and found that mother "does not contribute to [J.L.D.'s] support."  The CSM concluded that to order mother to pay child support would result in "an undue windfall" to father.  

Father moved for review of the order, challenging the CSM's findings that J.L.D. did not live with either parent and that father does not support J.L.D. other than medical copayments and prescriptions.  The reviewing CSM affirmed the order, finding that it was supported by the record and "not contrary to law."  This pro se appeal follows.

D E C I S I O N

The CSM denied the motion to establish a support obligation for mother based on findings that J.L.D. did not live with, and was not substantially supported by, either parent.  Father argues that the findings that J.L.D. does not live with him are not supported by the record.  A CSM's decision is reviewed under the same standard as a district court's decision.  Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn. App. 2000).  Generally, a district court has broad discretion in resolving child-support issues, and this court will affirm a district court's child-support decision if the record provides a reasonable and acceptable basis in fact and principle for the decision.  Hoppenrath v. Cullen, 383 N.W.2d 394, 395 (Minn. App. 1986).  A district court abuses its discretion when it sets child 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).  The findings of fact underlying a district court's support determination are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01; Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn. 1986). 

            A parent who is not a physical custodian is presumed to be a child-support obligor and further is presumed to have to pay support to the physical custodian.  Bender v. Bender, 671 N.W.2d 602, 607 (Minn. App. 2003); see Minn. Stat. § 518.54, subd. 8 (2002) (stating that sole physical custodian is presumed not to be a child-support obligor).  While the amended dissolution judgment awards father sole physical custody of J.L.D., thereby creating presumptions that mother owes support and that the support is to be paid to father as J.L.D.'s physical custodian, the CSM found that J.L.D. "does not live with either parent" and that J.L.D. "has lived with several different friends over the past few months and has not lived with either party."  These findings suggest that neither parent is, or is acting as, the child's physical custodian.  See Minn. Stat. § 518.003, subd. 3(c) (2002) (defining "[p]hysical custody" as "the routine daily care and control and the residence of the child").  And it was based on these findings that the CSM denied the motion to impose a support obligation on mother. 

The fact that a child does not live with the person awarded physical custody of the child does not necessarily relieve a potential support obligor from having to pay support.  See Minn. Stat. § 518.57, subd. 3 (2002) (stating that, under certain conditions, "[t]he court may conclude that an obligor has satisfied a child support obligation by providing a home, care, and support for the child while the child is living with the obligor . . . .") (emphasis added); id., subd. 4 (stating that "[i]f a child resides with a person other than a parent and the court approves of the custody arrangement, the court may order child support payments to be made to the custodian regardless of whether the person has legal custody") (emphasis added)[2]; compare Minn. Stat. § 645.44, subd. 15 (2002) (stating that "‘[m]ay' is permissive") with id., subd. 15a (stating that "‘[m]ust' is mandatory") and id., subd. 16 (stating that "‘[s]hall' is mandatory").

Here, the CSM did not find the existence of a statutory condition under Minn. Stat. § 518.57 that would absolve mother of an obligation to pay child support for J.L.D.  Nor did the CSM make the findings required by Minn. Stat. § 518.551, subd. 5(i) (2002), to allow a deviation from the presumptively correct guidelines support obligation provided in Minn. Stat. § 518.551, subd. 5(b), to the $0 amount effectively imposed.  See Rogers v. Rogers, 622 N.W.2d 813, 815 (Minn. 2001) (addressing deviations from guidelines support amount).

            It is possible to read the CSM's findings that neither parent provides substantial support for J.L.D. to suggest that she is at least partially emancipated.  See, e.g., In re Fiihr, 289 Minn. 322, 325-27, 184 N.W.2d 22, 25-26 (1971) (addressing emancipation generally); In re Sonnenberg, 256 Minn. 571, 576, 99 N.W.2d 444, 447-48 (1959) (noting that "emancipation may be complete, partial, conditional, absolute, or limited as to time or purpose") (footnote omitted).  If J.L.D. is emancipated, child support for her might no longer be required.  Compare Minn. Stat. § 518.64, subd. 4a (2002) (addressing relationship between emancipation and obligation to pay child support) with Sonnenberg, 256 Minn. at 577, 99 N.W.2d at 448 (noting that "a partial or limited emancipation does not relieve a parent from the obligation of support . . . .").

But for two reasons we cannot read the CSM's order to find that J.L.D. is emancipated.  First, not only did the CSM not state that J.L.D. was emancipated, but also the CSM did find that J.L.D.'s older sibling "is emancipated effective June 30, 2003."  Thus, the CSM was aware of the possibility of emancipation and explicitly recognized the fact of emancipation when she thought it appropriate to do so.  Second, the CSM did not refer the question of whether J.L.D. was emancipated to the district court, nor did the CSM discuss in her order with regard to J.L.D. the indicia of emancipation described in Fiihr, Sonnenberg, and related cases.  See Minn. R. Gen. Pract. 353.01, subd. 3(b) (stating that custody proceedings and issues "shall not be . . . decided in the expedited [child-support] process"); id. 353.02 (addressing procedures used to refer out of expedited child-support process issues that are not addressable in that process but that are implicated in proceedings). 

            The CSM's order concludes that mother has no obligation to pay support to father for J.L.D., but the order does not find the existence of a statutory condition that relieves mother of the obligation to pay support; does not make findings supporting a deviation to a $0 from the guidelines support obligation; and, despite findings that J.L.D. lives with neither parent and that neither parent provides substantial support for her, does not address, or ask the district court to address, the question of emancipation.  Thus, even if the record supports the CSM's finding that J.L.D. does not live with father, that finding, by itself, is an inadequate basis for the CSM's support ruling, and it renders J.L.D.'s custodial status unclear.  Under these circumstances, we remand the case to the CSM for reconsideration of who, if anybody, has a legal duty to support J.L.D., and what, if any, child-support obligation mother has.  On remand, in the CSM's discretion, the record may be reopened to receive any necessary additional evidence.

            Remanded.

[1] The Hortis/Valento formula is used to determine a presumptive child-support obligation only when the parties have joint physical custody of the children.  Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn. App. 2001).

[2] Because the CSM did not address the impact on this support matter of Minn. Stat. § 518.57, subd. 4, neither do we.