Opinion
No. C9-00-34.
Filed July 3, 2000.
Appeal from the District Court, Carver County, File No. F3-96-552.
Robert A. Standke, (for appellant)
Nancy C. Platto, (for respondent)
Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Foley, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant claims the district court erred by (1) modifying visitation without making adequate factual findings; (2) applying the "best interests" standard rather than the "endangerment" standard in modifying visitation; and (3) modifying respondent's child support obligations using the Hortis/Valento formula and without making adequate factual findings.
FACTS
T.M.H. was born on March 15, 1994, to appellant Mikel Humbert and respondent Sherry Korkowski. Pursuant to an order filed on April 24, 1996, the parties were granted joint legal custody of the child. Appellant retained primary physical custody, and respondent was granted reasonable visitation rights.
Because the parties could not agree on a visitation schedule, they returned to court several times. On October 13, 1997, the district court ordered the appointment of a visitation expeditor to mediate the parties' disputes. The mediation failed, and on January 7, 1998, the district court issued a visitation schedule providing for holiday visitation, telephone contact, and overnight visits on alternating weekends. The court ordered respondent to pay $135 per month in child support.
In the ensuing months the parties' dispute over visitation issues became more contentious, leading to hearings in June and October 1998. On November 4, 1998, the district court issued an order finding, among other things, that the parties "lack[ed] the ability to communicate and cooperate with one another in meeting the needs of their child in a joint parenting manner" and were incapable of co-parenting T.M.H. "as envisioned by a `joint legal custody' arrangement." It awarded appellant legal and primary physical custody, issued a detailed visitation schedule for respondent, ordered the appointment of a guardian ad litem, and ordered the guardian ad litem to select a psychologist or counselor to work with the child . The visitation schedule set out a thorough alternating-holiday visitation schedule and added a mid-week overnight visit and four weeks of uninterrupted visitation per year.
Shortly thereafter, appellant moved for amended findings or a new trial, or both, and recommended a different visitation schedule. On January 25, 1999, following a December 1998 hearing, the district court replaced the mid-week visit with a mid-week telephone call and set out detailed procedures for the four uninterrupted week-long visits.
In February 1999, the guardian ad litem filed a report including recommendations for visitation. In May, the county child support office filed a proposed order for modification of support. In June, the guardian ad litem filed another report including a detailed visitation schedule. Respondent moved for implementation of the guardian ad litem's recommendations and for recalculation of child support in accordance with the proposed visitation schedule. After a motion hearing on June 24, 1999, the district court adopted a modified version of the guardian ad litem's recommended visitation schedule pending further order of the court.
On August 11, 1999, the district court issued an order implementing a visitation schedule largely as recommended by the guardian ad litem and retaining jurisdiction over the support issue pending a later hearing. The visitation schedule added an overnight visit every Thursday, listed procedures for participating with the child in school-related events, and replaced the four weeks of uninterrupted visitation with a summer plan providing each parent with three uninterrupted weeks with the child. The schedule called for one additional week of visitation for each parent during the summers of 2001, 2002, and 2003. The schedule also provided other details, including procedures for dropping off and picking up the child for visits.
In its memorandum accompanying the order of August 11, the district court stated:
In adopting the Guardian's recommendations, this Court has decided to go with a plan of extremely rigid and structured parenting, which in effect leaves the parties no flexibility. In doing so, the Court agrees with the basic premise of the Guardian that certainty in terms of parenting opportunities from the viewpoint of [T.M.H.] is the key to his stability, and is less stressful for him, and thus serves his best interests and welfare the most. The key is not to cut down on the number of times that a child may go from one parent to the other, but to make those transitions more certain, planned, structured, and down right rigid.
* * * This Court can and has increased the visitation and parenting contact by mother with the child based upon that increase being in the child's best interests.
On October 14, 1999, the district court filed a support order and judgment stating that it imputed income to respondent "as calculated by the Carver County Department of Human Services, thus setting her guideline child support at $268.00 per month." It determined that, based on net income of $904 per month, appellant's child support obligation equaled $208 per month. The court's order and the accompanying memorandum show that it used the Hortis/Valento formula to offset the parties' guideline support obligations and, based on appellant's caring for the child 62 percent of the time, ordered respondent to pay appellant $85 per month.
DECISION I.
The district court has extensive discretion in deciding visitation questions and will not be reversed absent an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). Appellant alleges the findings supporting the visitation schedule implemented in the order of August 11, 1999, are inadequate under Minn. Stat. § 518.175, subd. 5 (1998), which permits modification of a visitation order when the district court determines the modification would serve the best interests of the child.
While the district court did not issue fact findings per se, its memorandum accompanying the order explains that, given the animosity between the parties shown throughout their visitation dispute, the district court found it in the best interests of the child to increase visitation and parenting contact for respondent under an "extremely rigid and structured" visitation plan. The plan clearly followed the recommendations of the guardian ad litem, which specifically addressed why the recommended schedule was in the child's best interests. The record of this protracted dispute is extensive, and it supports the district court's rationale, as outlined in its memorandum, for modifying visitation. See Van Zee v. Van Zee, 257 N.W.2d 389, 389-90 (Minn. 1977) (considering district court's memorandum in assessing whether district court abused its discretion in finding best interests served by granting visitation rights); Sieren v. American Family Fin. Servs. of Wisc., Inc., 356 N.W.2d 408, 410 (Minn.App. 1984) (looking to district court's memorandum for clarification of order).
Based on our thorough review of the record, we are satisfied that the district court properly determined the modification would serve the best interests of the child. Under the circumstances, the district court did not abuse its discretion by failing to make explicit findings.
II.
Appellant claims that the visitation modification constituted a substantial change in the custody of the child, and, therefore, the district court erred by applying the "best interests" standard, used for visitation modification, rather than the "endangerment" standard, required for a modification of custody. Appellant's argument relies on Lutzi v. Lutzi, 485 N.W.2d 311 (Minn.App. 1992), in which this court stated that "the endangerment standard must be employed where a party proposes full custody during the school year after having previously shared custody on an equal basis." Id. at 315. While the modification in this case clearly increased respondent's already significant visitation time, it does not approach the severity of the change attempted in Lutzi. In Lutzi, a proposal for visitation was used as a vehicle to effect a de facto change in custody. That has not occurred here. This was clearly a visitation modification, the primary change in visitation being the addition of one overnight visit per week. Based on these facts, we are convinced the district court properly applied the traditional "best interests" standard.
III.
Appellant claims the district court erred both in applying the Hortis/Valento formula to modify respondent's support obligation and in failing to make adequate findings supporting the support modification. Modification of child support is within the trial court's discretion and will not be reversed absent an abuse of discretion. Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn.App. 1993), review denied (Minn. June 22, 1993).
The Hortis/Valento formula requires a parent who shares joint physical custody to pay guideline child support only for the period of time that the other parent has custody of the child. See Valento v. Valento, 385 N.W.2d 860, 862 (Minn.App. 1986) (setting out formula for calculating child support when parties share joint physical custody), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn.App. 1985) (applying offset principle in all joint custody cases unless reasons for not applying formula exist). It is designed to take into account the contribution of the custodial parent, Valento, 385 N.W.2d at 862, and has been applied where one parent has sole physical custody but both parents provide "a significant amount of physical care" for the child. Tweeton v. Tweeton, 560 N.W.2d 746, 748 (Minn.App. 1997), review denied (Minn. May 28, 1997). This court recently held that application of the Hortis/Valento formula is limited to cases in which the parties "have joint physical custody or when the non-custodial parent provides a nearly equal amount of physical care." Rumney v. Rumney, 611 N.W.2d 71, ___, 2000 WL 719569, at *4 (Minn.App. 2000).
Under Rumney, application of the Hortis/Valento formula on the facts presented here appears suspect. We are unable to exercise meaningful review of the district court's decision to modify support because specific findings supporting the modification were not made. Based on our review of the record, we are unable to reach a conclusion on whether the district court considered the proper factors. See Minn. Stat. § 518.64, subd. 2 (Supp. 1999) (listing factors to be considered for modification of support award); see also Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986) (requiring district court to make specific findings of fact on statutory factors supporting modification and stating record is inadequate if it fails to reveal district court actually considered appropriate factors). Therefore, we reverse the district court's modification of child support and remand for reconsideration of this issue and specific findings on the factors listed in Minn. Stat. § 518.64.