In re Christina Louise Nightingale, petitioner, Respondent, vs. John Robert Nightingale, 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This opinion will be unpublished and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

A04-217

 

In re Christina Louise Nightingale, petitioner,

Respondent,

 

vs.

 

John Robert Nightingale,

Appellant.

 

Filed August 17, 2004

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. F0-93-12691

 

Wayne A. Jagow, Jagow, Groves, Meinerts & Holbeck, 350 West Burnsville Parkway, Suite 625, Burnsville, MN 55337 (for respondent)

 

James C. Lofstrom, 4635 Nicols Road, Suite 206, Eagan, MN 55122 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant-father John Nightingale argues that under Minn. Stat. § 518.551, subd. 5(b) (2002), he should not be responsible for child-care expenses incurred by respondent-mother Christina Nightingale for the parties' 14-year-old child, and that if he is responsible, the amount the district court apportioned to him is excessive.  We affirm. 

D E C I S I O N

I.

            Work-related "child care costs" are to be apportioned between the parties based on their net incomes, unless that apportionment "would be substantially unfair."  Minn. Stat. § 518.551, subd. 5(b).  "[T]o reflect the approximate value of state and federal tax credits available to the obligee[,]" "child care costs" are defined as "75 percent of the actual cost paid for child care[.]"  Id.  The district court ruled that nanny expenses incurred by respondent qualify as "child care costs" and apportioned them between the parties.  Appellant argues that the "child care costs" referred to in the statute are "daycare expenses."  He also argues that because the IRS and the state government do not allow tax credits for dependent-care expenses incurred for children over age 13, and because the parties' child is age 14, these nanny expenses cannot be "daycare expenses" and therefore he cannot be held responsible for them.  We review a district court's reading of a statute de novo.  Bol v. Cole, 561 N.W.2d 143, 146 (Minn. 1997).  We reject appellant's argument. 

            Statutes are given their plain meaning.  Amoco Corp. v. Comm'r of Revenue, 658 N.W.2d 859, 871 (Minn. 2003).  And the plain meaning of "child care costs" includes expenses reasonably incurred for the supervision of children.  Here, it is undisputed that respondent is a flight attendant who spends extended periods out of town, that leaving the child unsupervised for up to five-day periods while she is out of town would be unreasonable, and that she incurs the nanny expenses to assure the availability of care for the child when she is out of town.  We conclude that the plain meaning of "child-care costs" includes the nanny expenses incurred here. 

            In addition, "child support" is for a child's "care, support and education" and includes child-care expenses.  Minn. Stat. §§ 518.54, subd. 4 (2002), .551, subd. 5(b).  It is undisputed the nanny costs are incurred for the care and support of the child and that appellant has a child-support obligation. 

            Finally, we note that even if we adopted appellant's argument that child-care costs  do not include these nanny expenses, because respondent incurs these significant child-related expenses, the district court could properly award respondent reimbursement for the expenses by ordering appellant to pay support above the guideline amount.  See Minn. Stat. § 518.551, subd. 5(i) (2002) (addressing deviations from child-support guidelines).   

II.

            The district court apportioned 28.76% of the child-care costs to appellant, stating that it was "not substantially unfair."  Appellant argues that this apportionment is unfair because respondent unilaterally determines the child's needs and the costs to meet those needs and, in doing so, bids well-paid flight schedules without considering the nanny expenses generated by working those schedules.  But as the child's sole legal and physical custodian, respondent is allowed to make expense-related decisions for the child.  See Minn. Stat. § 518.003, subd. 3(a), (c) (2002) (defining legal and physical custody).  Also, the district court found that because of cutbacks by respondent's employer, she "must" fly extended trips, and even with respondent's bidding of the schedules about which appellant complains, she still has an apparent monthly deficit.  Removing appellant's child-care contribution would increase that apparent deficit and increase the possibility that the district court would set appellant's support obligation at an above-the-guideline amount. 

            Appellant complains about respondent paying the nanny twice a month even if the nanny did not work during one of those periods.  But because the number of overnights respondent has to fly each month does not change, this pay schedule will not alter the amount the nanny is paid each month.  Moreover, respondent's deposition suggests that irregularly paying the nanny could mean that the nanny will become unavailable.  We also reject appellant's argument that the child's grandmother or emancipated brother could care for the child.  Respondent's deposition indicates that the grandmother does not like the child and that the brother and the child do not speak to each other. 

            Apparently assuming that the child will be self-sufficient before age 17, appellant challenges the district court's order that there be a review of the nanny expenses when the child reaches age 17.  But if the child should become self-sufficient before age 17, appellant can move to modify his obligation.  Minn. Stat. § 518.64, subd. 2 (2002).

            Finally, we reject appellant's argument that the apportionment of child-care costs is an improper punishment for his alleged conduct prompting a prior order for protection and order that he not have contact with the child.  Regardless of his prior conduct, appellant currently lives in St. Louis, Missouri, and thus cannot care for the child when respondent is out of town. 

            Affirmed.