Kevin Gerard Olson, Appellant, vs. Heather Jax, Respondent.

Kevin Gerard Olson, Appellant, vs. Heather Jax, Respondent. A06-27, Court of Appeals Unpublished, December 19, 2006.

This opinion will be unpublished and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

A06-27

 

Kevin Gerard Olson,

Appellant,

 

vs.

 

Heather Jax,

Respondent.

 

Filed December 19, 2006

Affirmed in part and reversed in part

Randall, Judge

 

Ramsey County District Court

File No. P-F4-03-470

 

Sarah Westcott Bashiri, Linda R. Allen, Butler, Huson & Allen, P.A., 2330 U.S. Bank Center, 101 Fifth Street East, St. Paul, Minnesota 55101 (for appellant)

 

Joan H. Lucas, Lucas Family Law and Mediation, LLC, 889 Grand Avenue, St. Paul, Minnesota 55105 (for respondent)

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

On appeal in this custody dispute, appellant-father challenges the district court's award of sole physical custody and child support to respondent-mother.  Appellant also challenges the district court's order that appellant contribute to the child's post-secondary education, reimburse respondent for past-daycare expenses, and the order that the parties share the costs of extracurricular activities.

We affirm in part and reverse in part.

FACTS

            G.J. was born on January 20, 2003 to respondent.  Appellant was subsequently adjudicated G.J.'s father pursuant to the district court's order for temporary relief filed July 9, 2003.  Appellant and respondent were never married and never cohabited.

            Appellant resides approximately 40 minutes from respondent.  Appellant, an independent software developer, owns Kevin Olson Software Solutions ("KOSS"), a Minnesota C-corporation, providing computer consulting services.  Appellant works 40 hours per week billing clients $85 per hour and earning $35 per hour.  As owner of KOSS, appellant's work schedule is flexible, allowing him to care for G.J. during respondent's work day.  The parties dispute the amount of appellant's gross annual income and expenses.  Richard C. Berning, respondent's expert, calculated appellant's pre-tax income available for determination of child support as $175,125, including a $70,000 salary and net corporate income of $105,125, and net individual income of $120,976 ($10,081 net monthly income).  Karen Krita, appellant's expert, calculated pre-tax income as $112,760, and after-tax income as $80,509 annually or $6,709 monthly.  Krita did not include business income from KOSS in her calculations.

 

            Respondent resides in St. Paul, Minnesota, with G.J. and R.H., her eight-year-old daughter from a previous marriage.  Respondent and her former husband have joint legal and physical custody of R.H., and both acknowledge that respondent is R.H.'s primary parent and decision-maker.

            Respondent, a registered nurse, works in the operating room at United Hospital earning $29.37 per hour.  Respondent works two-12 hour shifts per week, including either a day shift, 7:00 a.m. until 7:00 p.m., or a night shift, 11:00 a.m. until 11:00 p.m.  Except for her two-12 hour shifts, respondent is able to care for G.J. and R.H.  Based upon her 2004 W-2, respondent earned gross annual income of $41,897[1] and net monthly income of $2,246[2].  Respondent claims monthly living expenses of $3,071, which includes 100% of respondent's fixed living expenses since respondent does not receive child support for R.H.

            Appellant brought a motion for temporary relief which the district court heard on May 28, 2003, when G.J. was four months old.  The July 9, 2003 temporary order granted temporary joint legal custody, immediate parenting time to appellant, temporary child support to respondent, and reserved the following issues:  physical custody, the child's
surname, and attorney fees.  The order permitted respondent to continue using daycare services.  The temporary order referred the parties to Ramsey County Domestic Relations for mediation and ordered a custody and parenting time evaluation in the event mediation failed.  The parties attempted mediation but it was unsuccessful.

            Kelly Gerleman, a "Family Court Officer," completed the custody evaluation.  Gerleman recommended joint legal and joint physical custody.  Gerleman suggested a parenting time arrangement where G.J. spends every other weekend with each parent and is in appellant's care while respondent is at work.

            Appellant challenges the district court's award of sole physical custody and child support to respondent, the parenting-time schedule, and the order that appellant contribute to an education IRA, reimburse respondent for past daycare expenses, and share extracurricular costs.

D E C I S I O N

I.  Child Custody

            Appellant argues that respondent was procedurally precluded from seeking sole physical custody due to an untimely request for such relief.  We disagree.  Respondent originally sought joint physical custody, however, changed her mind approximately 15 months after the child's birth and approximately one year after the commencement of the case.  The "Family Court Officer," Gerleman, submitted a recommendation for joint physical custody on January 28, 2004 to which respondent replied expressing disagreement by letter dated February 26, 2004.  On April 5, 2004 respondent formally filed a motion seeking an evidentiary hearing on, among other things, child custody.  The pretrial hearing was held on April 19, 2004 with the pretrial order, issued April 21, 2004, listing determination of sole physical custody as a matter for trial.  The trial was subsequently held on January 25 and March 3, 2005.

            Pursuant to Minn. R. Gen. Pract. 303.03(a)(1) a motion must be filed with the court administrator at least 14 days prior to the hearing.  Respondent complied with this requirement and timely filed her motion seeking sole physical custody.  Appellant's assertion of being unaware of respondent's position on child custody is contrary to the record. 

            Appellant argues that the district court erred in awarding respondent sole physical custody.  Custody awards are based on a child's "best interests."  Minn. Stat. § 518.17, subd. 3(a)(3) (2004); see Minn. Stat. § 518.17, subd. 1(a) (2004) (listing best-interests-of-the-child-factors).  When deciding whether to award joint physical custody, the district court must also consider certain statutory factors centering on the parents' ability to cooperate in making parenting decisions.  Bateman v. Bateman, 382 N.W.2d 240, 249 (Minn. App. 1986), review denied (Minn. Apr. 24, 1986); see Minn. Stat. § 518.17, subd. 2 (2004) (listing joint custody considerations).

            Appellant argues that several of the district court's findings supporting its custody determination are clearly erroneous.  A reviewing court will conclude that a finding is clearly erroneous if it is left with the definite and firm conviction that a mistake has been made.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  When considering a challenge to the district court's findings, we view the record in the light most favorable to the district court's determination and give deference to the district court's credibility determinations.  Id. at 472; see In re Welfare of D.L., 486 N.W.2d 375, 380 (Minn. 1992) (stating that "the trial court retains broad discretion because of its opportunity to observe the parties and hear the witnesses"). 

            Appellant disagrees with the court's finding that the parties are incapable of cooperation.  The record indicates that the parties initially were able to cooperate and put G.J.'s best interests above all else.  Respondent originally agreed to joint physical custody on the condition that respondent was G.J.'s primary caretaker and provided for G.J.'s primary residence, an arrangement similar to that of respondent and her former husband regarding R.H.  The district court found that "[t]here is no evidence that the parties can cooperate with one another as joint physical custodians.  To the contrary, the evidence shows there is deep disagreement over the role of Ms. Jax in [G.J.'s] life, disagreement which has resulted in minimization of contact and communication."  At trial, Gerleman expressed concerns regarding the parties' ability to cooperate.  After reviewing the record in the light most favorable to the district court's findings, we conclude these findings are proper. 

 

            Because appellant was willing and able to care for G.J. and actively took steps to learn more about caring for a young child, joint physical custody in this instance could have realistically been considered. G.J. has bonded with both parents and less time with appellant could hinder the continued growth of this bond with appellant.  It appears as though the court may have rewarded respondent for having parenting experience while simultaneously penalizing appellant for being a first time parent.  But, based on our deferential standard of review of factual determinations, we cannot conclude that the district court's findings are clearly erroneous.  See Vangsness, 607 N.W.2d at 474 ("That the record might support findings other than those made by the trial court does not show that the court's findings are defective.").  The district court did not abuse its discretion in awarding respondent sole physical custody.

II.  Parenting Time

A district court has broad discretion when determining a parenting-time schedule and will not be overturned absent an abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  When requested by either parent, the district court must grant parenting time to "enable the child and the parent to maintain a child to parent relationship that will be in the best interests of the child."  Minn. Stat. § 518.175, subd. 1(a) (2004).

Appellant argues that the district court abused its discretion by linking appellant's parenting time to respondent's work schedule.  Appellant fears that a change in respondent's work schedule (for example, to a 9:00 a.m. to 5:00 p.m. workday) would deprive him of parenting time and/or force him to expend time and money in bringing respondent back to court.  However, appellant, due to his self-proclaimed flexible work schedule, suggested and stipulated to a parenting schedule based on respondent's work schedule.  Since appellant proposed caring for G.J. while respondent was at work, the district court did not abuse its discretion in setting such a parenting-time schedule.  The parties will realize that as their child grows, their schedules will inevitably require adjustments.

III.  Child Support

            Appellant disagrees with the district court's award of child support.  A district court has broad discretion in ordering child support.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  The district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (against logic); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (improper application of law).

            Appellant disagrees with the district court's determination of his income.  Determination of the amount of an obligor's income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  "Income from self employment is equal to gross receipts minus ordinary and necessary expenses."  Minn. Stat. § 518.551, subd. 5b(f) (2004).  The district court has broad discretion to determine the income of a self-employed parent; "the opportunity for a self-employed person to support himself yet report a negligible net income is too well known to require exposition."  Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984).  The district court may consider cash flow, particularly when the calculation of income is a "difficult task."  Schelmeske v. Veit, 390 N.W.2d 309, 311-12 (Minn. App. 1986).  The court may also consider a person's lifestyle when it is inconsistent with reported income and personal expenses.  Johnson v. Fritz, 406 N.W.2d 614, 616 (Minn. App. 1987).

            The district court reviewed appellant's past tax returns and lifestyle, comparing pre-incorporation tax returns from 2001 and 2002 with appellant's post-incorporation earnings.  Appellant's 2001 and 2002 earnings, $174,406 and $139,292, respectively, were comparable with appellant's pre-tax total business income of $175,125, versus a claimed salary of $70,000.  The district court found appellant to have monthly disposable income of approximately $10,000.  The district court also found appellant's claimed living expenses of $3,287.80, including variable expenses for entertainment ($300), gifts ($100), vacations ($150), personal care ($50), and books/magazines ($100), unsupported by the record and unreasonable if appellant's income was as he claimed.  The district court utilized Berning's report and figures calculating appellant's net income, favoring Berning's data after finding appellant's expert less credible.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210
(Minn. 1988) (stating that the appellate court defers to credibility determinations made by the district court). 

            Appellant next argues the district court erred by mechanically applying the guidelines and failing to consider other statutory factors.  The child support guidelines establish a rebuttable presumption that a child support obligor owes a fixed percentage of the obligor's net income based on that income and the number of children to be supported.  Minn. Stat. § 518.551, subds. 5(b), (i) (2004).  After determining appellant's net income, the district court properly ordered child support based on the guidelines effective at the time of the order:  25% of appellant's net income capped at $6,975, resulting in a maximum amount of child support of $1,743.75 per month.  Any errors made were de minimis because the amount used for calculating support was capped at $6,975, which is significantly less than appellant's monthly disposable income of $10,000.

            Finally, appellant argues for a downward deviation in child support since the statutorily provided amount exceeds the child's needs and will consequently benefit respondent.  It is improper for child support to "upgrade" the obligee's standard of living, however, a child should benefit from the standard of living of both parents.  State v. Hall, 418 N.W.2d 187, 190 (Minn. App. 1988), review denied (Minn. May 4, 1988) (upgrade standard of living); Thompson v. Newman, 383 N.W.2d 713, 716 (Minn. App. 1986) (child should benefit).  G.J. is entitled to benefit from appellant's standard of living and the district court followed the statutory guidelines in awarding child support.

IV.  Education IRA

            The district court ordered:  "Commencing in 2004, Mr. Olson shall contribute $2,000.00 per year to a Cloverdell Education IRA for the minor child."  Appellant argues that his willingness to contribute was conditioned upon a lower child support obligation and that the district court abused its discretion by ordering appellant to make annual contributions to an education IRA when he had already been ordered to pay the statutory cap in child support.  We agree.  At one point during negotiations, appellant voluntarily agreed to contribute $2,000 annually to a Cloverdell Education IRA; however, negotiations between the parties failed.  Nothing in the record supports an unconditioned agreement by appellant to make that annual contribution.

            The district court's imposition of a Cloverdell IRA contribution, over and above child support, constituted an upward deviation without findings of fact.  See Minn. Stat. § 518.551, subd. 5(i) (2004) (stating that "if the court deviates from the guidelines, the court 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) (2004)] and how the deviation serves the best interest of the child").  We reverse in favor of appellant on this issue.

V.  Extracurricular activities

            Appellant argues the district court abused its discretion by requiring him to share the costs of G.J's extracurricular activities.  A district court has broad discretion in determining child support and will be reversed for abuse of discretion only if there is a "clearly erroneous conclusion that is against logic and the facts on record."  Rutten, 347 N.W.2d at 50.  

            Regarding this issue, the district court stated:

Extracurricular Activities.  The parties shall be equally responsible for the cost of any extracurricular activities in which they have enrolled the child, provided that the parties agree on such enrollment in advance.  If a party chooses to enroll the child in an extracurricular activity without the express consent of the other party, then he or she shall be solely responsible for any costs associated therewith.  The party incurring the costs shall immediately notify the other party by copying him or her with the invoice for said costs and reimbursement payment shall be made within thirty (30) days of receipt of said expenses.  In the event a party does not timely notify the other of such an expense, reimbursement shall be deemed waived.

 

            Respondent conceded that the paragraph appears ambiguous and that appellant cannot be held responsible for the costs of any activities unless he expressly agrees to enrollment in such activities in advance.  This paragraph presents a purely voluntary undertaking for the parent who wishes to enroll G.J. in an extracurricular activity.  This paragraph does not constitute an upward deviation of child support because it is not mandatory; appellant has choices.

            In McNulty v. McNulty the court ordered an upward deviation to cover a child's significant education and extracurricular expenses.  495 N.W.2d 471, 473 (Minn. App. 1993), review denied (Minn. Apr. 12, 1993).  The court found the case to be unique since appellant's support expenditures were regular, ongoing, and dedicated to the child's existing needs and expenses.  Id.  Further, "[t]he payments did not create, but rather, continued [the child's] accustomed standard of living.  Id.  Here, the minor child was only two years old at the time of trial and had not yet become accustomed to any standard of living and was not participating in any activities.  The court's order simply created a purely voluntary arrangement by which the parties may agree to share the costs of G.J.'s activities.

VI.  Past Daycare Expenses

            Appellant argues that the district court abused its discretion in ordering him to reimburse respondent for past daycare expenses.  We disagree.  It is within the district court's discretion to award daycare expenses in its consideration of child support.  Minn. Stat. § 518.551, subd. 5(b) (2004).  Daycare expenses should be allocated "to each parent in proportion to each parent's net income, as determined under this subdivision, after the transfer of child support."  Id.

            The district court ordered appellant to reimburse respondent $5,329, or 50% of respondent's total expenditure for daycare expenses incurred from May 2003 through April 2005.  Appellant argues that he should not be liable for past daycare expenses since he was available and offered to care for G.J. while appellant was at work.  Appellant cites Minn. Stat. § 518.175, subd. 8 (2004), which states that the "court may allow additional parenting time to a parent to provide child care while the other parent is working if this arrangement is reasonable and in the best interests of the child."  The 2003 temporary relief order permitted respondent to continue utilizing daycare services, and it structured a parenting time schedule around respondent's use of daycare services.  Even though appellant was willing and available, it was within the court's discretion to award respondent continued use of daycare.

            Appellant argues that the district court failed to use the statutorily prescribed formula in calculating each party's responsibility for daycare expenses.  "The cost of child care for purposes of this paragraph is 75% of the actual cost paid for child care, to reflect the approximate value of state and federal tax credits available to the obligee."  Minn. Stat. § 518.551, subd. 5(b) (2004).  The district court equally divided the $10,658 of total daycare expenses between appellant and respondent.  However, the total expense should have been reduced by 25% and subsequently allocated to the parties based on net income after the transfer of child support.  Using the figures adopted by the court, retroactive daycare expenses should have been apportioned $5,223 to appellant and $5,435 to respondent.  Although the district court failed to use the statutorily prescribed method of dividing daycare expenses, the difference in the end result was de minimis.

VII.  Due Process

            Appellant argues that he was denied his Fourteenth Amendment right to due process of law.  Appellant asserts that due to his attorney's inability to cross examine witnesses and re-direct witness testimony, many of the findings in the judgment and decree were erroneous.  Appellant, however, failed to develop his argument or cite any supporting legal authority.  If a brief does not contain an argument or citation to legal authority in support of the allegations raised, the allegation is deemed waived.  State v. Krosch, 642 N.W.2d 713, 719 (Minn. 2002).  Also, if a brief fails to make or develop any argument at all, the issue asserted is considered waived.  State v. Butcher, 563 N.W.2d 776, 780 (Minn. App. 1997) review denied (Minn. Aug. 5, 1997).            

            Appellant expresses displeasure with the court's decision to limit the length of the trial, thereby restricting his attorney's ability to comprehensively question witnesses.  The record shows that the trial was originally scheduled for a half day hearing but was extended to a trial lasting a day and a half.  The record shows that, excluding the parties, seven witnesses were called:  six by appellant and only one by respondent.  Appellant utilized his share of the trial time.  Appellant never moved for a continuance or asserted an emergency situation requiring an extension of the trial.  Appellant's due process rights were not violated.

VIII.  Name change

            Appellant argues that the district court should have ordered the child's last name to be changed from respondent's to his.  The district court's decision to grant or deny a name change is reviewed under an abuse-of-discretion standard.  In re Welfare of C.M.G., 516 N.W.2d 555, 561 (Minn. App. 1994).  A district court "shall" grant an application for a change in a minor child's name unless the court finds that the change is not in the best interests of the child.  Minn. Stat. § 259.11(a)(3) (Supp. 2005).  But, "judicial discretion in ordering a change of a minor's surname against the objection of one parent should be exercised with great caution and only where the evidence is clear and compelling that the substantial welfare of the child necessitates such change."  In re Saxton, 309 N.W.2d 298, 301 (Minn. 1981) (citation omitted). "When granting or denying a petition for a name change, the court must set forth clear and compelling reasons for its decision."  LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2000) (citation omitted), review denied (Minn. May 16, 2000). When determining a child's best interests, the district court should consider:  (1) the child's preference; (2) the effect of a name change on the child's relationship with each parent; (3) the length of time the child has had the current name; (4) the degree of respect the present and proposed names have within the community; and (5) the potential the name change might have to cause harassment or embarrassment.  Saxton, 309 N.W.2d  at 301.

            Appellant argues that the court's decision to deny appellant's name change request was based upon a mischaracterization of appellant's testimony.  Specifically, appellant believes the court misunderstood the following comment made during trial:  "And if they find out his sister has her father's name but he doesn't have his father's name, that's almost like adding a kick me sign to his back."  The district court misconstrued appellant's statement at trial, stating in the order, "Mr. Olson testified about the name change in terms of his own interests, saying ‘I might as well have a ‘kick me' sign on my back if [G.J.] doesn't have my last name.'"  Appellant's assertion is correct.  However, the court listed additional reasons for denying appellant's motion for a name change, finding that appellant had not met his burden of showing how the change would benefit the child.  G.J. has been known in the community with his current surname since birth.  It is in G.J.'s best interest to have the same surname as respondent, his physical custodian.  The district court did not abuse its discretion by concluding the child's best interests were served by denying a change in surname. 

IX.  Attorney Fees

            Appellant argues respondent is capable of paying her own attorney fees and that he neither contributed to the length nor the expense of the proceedings.  Minn. Stat. § 518.14, subd. 1 (2004) permits awarding need-based and conduct-based attorney fees in the court's discretion.  Sharp v. Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (Minn. Sept. 26, 2000).  Such a discretionary award will not be disturbed absent an abuse of that discretion.  Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991).

                        A court shall award need-based attorney fees to a party if it finds

(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

 

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

 

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

 

Minn. Stat. § 518.14, subd. 1.  Here, the district court extensively reviewed each party's financial situation, concluding that respondent was entitled to need-based attorney fees and that appellant had the means to pay them.  A review of the record indicates that the district court did not abuse its discretion in awarding respondent need-based attorney fees. 

            Then, because the district court also awarded conduct-based attorney fees, the district court must make findings regarding their basis "to permit meaningful appellate review."  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).  To support such an award, the district court must identify the offending conduct, the conduct must have occurred during the proceedings, and the conduct must be found to have unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1; Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  A showing of bad faith is not necessary to support an award of conduct-based attorney fees.  Id. 

            The district court found that appellant increased the length of trial by claiming substantially lower earned income, thereby requiring respondent to employ an expert.  We disagree.  The issues of child custody and child support were contentious here, as they often are.  The district court found that appellant failed to provide full and complete discovery.  We note that the financial composition of a self-employed individual was involved in this case, and the issue of calculating income available for child support was complex.  Two experts presented varying calculations, demanding that the district court make accuracy and reliability determinations.  We reverse the district court's award of conduct-based attorney fees to respondent; she will still receive her need-based attorney fees.

            Affirmed in part and reversed in part.

[1] Respondent earned gross wages of $44,697 in 2004; however, $2,800 was a nonrecurring bonus.  Respondent's expert removed the bonus to reach gross annual income of $41,897.  Respondent's net income is $26,954.

[2] Respondent's expert calculated her net monthly income to be $2,329 if respondent were able to eliminate $1,000 per year in pre-tax daycare cafeteria plan contributions.