Opinion
No. C8-97-420.
Filed August 19, 1997.
Appeal from the District Court, Hennepin County, File No. DC211466.
Ellen Dresselhuis, (for Appellant).
John H. Daniels, Jr., Willeke Daniels, (for Respondent).
Considered and decided by Lansing, Presiding Judge, Randall, Judge and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant-mother challenges the district court's decision granting respondent-father joint physical custody of their children and excluding respondent's bonus income from the court's calculation of child support. Respondent challenges the court's award of 100% of two marital assets to appellant. We affirm the court's grant of custody, but reverse and remand for reconsideration the issues of bonus income and division of the two assets in question.
FACTS
Appellant, Deborah Ann McNulty, and respondent, Joseph James Marrone, were married in 1988. They have two children, ages 11 and 6. The couple separated in 1995 and McNulty petitioned for dissolution. Marrone sought joint physical custody of the children over McNulty's objection and the dissolution proceeded to trial on the issues of custody and support.
The family court custody evaluator recommended that McNulty and Marrone be granted joint physical custody. The evaluator's recommendation was based on home visits, interviews with the children, and the couples' past pattern of equally sharing child care responsibilities. The district court granted McNulty and Marrone joint physical custody and made detailed findings in support of its decision under Minn. Stat. § 518.17, subd. 1 (1996) (listing factors district court must consider when determining custody of child), and Minn. Stat. § 518.17, subd. 2 (listing factors the district court must consider when joint custody is sought). The court applied the "cross-award" formula of Broas v. Broas , 472 N.W.2d 671 (Minn.App. 1991) in calculating child support. At Marrone's request, the district court excluded Marrone's annual bonus income from its calculation of child support.
McNulty moved for amended findings, seeking reversal of the district court's decision to grant joint physical custody, recalculation of child support, and the inclusion of Marrone's annual salary bonus in a calculation of child support. Marrone also moved for amended findings, requesting the court to award him a share of McNulty's employee stock plan and retirement pension, both of which were concededly marital assets. The district court denied the requested amendments and this appeal followed.
DECISION I.
An appellate court will not reverse a custody determination unless the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law. Pikula v. Pikula , 374 N.W.2d 705, 710 (Minn. 1985). We will sustain a trial court's findings unless they are clearly erroneous. Id.
Joint physical custody may be appropriate when the record indicates that the parties can cooperate in maintaining a joint custody arrangement, share similar parenting philosophies, and can cooperate regarding major decisions regarding the children's lives. See Veit v. Veit , 413 N.W.2d 601, 605 (Minn.App. 1987) (affirming an award of joint physical custody based on evidence that parties were able to cooperate regarding child care); Berthiaume v. Berthiaume , 368 N.W.2d 328, 332-33 (Minn.App. 1985) (affirming a grant of joint physical custody when record provided evidence of parties' ability to make decisions cooperatively).
When joint physical custody is sought over the objection of a party, the trial court must make detailed findings on each of the factors outlined in Minn. Stat. § 518.17, subd. 2, and explain how the factors led to the court's decision that joint custody would be in the child's best interest. Minn. Stat. § 518.17, subd. 2 (1996). An award of joint physical custody may be inappropriate if the parties have not demonstrated that they are capable of cooperating with each other. See Minn. Stat. § 518.17, subd. 2(a); Greenlaw v. Greenlaw , 396 N.W.2d 68, 74 (Minn.App. 1986) (deciding that award of joint physical custody was an abuse of discretion because the parties could not cooperate); Heard v. Heard , 353 N.W.2d 157, 161-62 (Minn.App. 1984) (reversing an award of joint physical custody when record indicated that parties could not cooperate or resolve disputes).
The custody evaluator testified that McNulty and Marrone's past pattern of child care, their demonstrated ability to resolve differences, and their complementary parenting styles contributed to his conclusion that joint physical custody was appropriate. Further, McNulty and Marrone successfully mediated a temporary parenting schedule and stipulated that they would mediate future custody disputes. Marrone submitted evidence that the parties' stipulated parenting agreement resulted in a nearly equal division of child care because of the frequency of McNulty's time away from home while she works as a flight attendant. McNulty testified and continues to argue that Marrone overstated the time she is away from home.
By concluding that Marrone cares for the children 45% of the time, the district court adopted Marrone's testimony as credible over McNulty's. We will not disturb the court's findings on this issue on review. See Minn.R.Civ.P. 52.01 (providing that in reviewing findings of fact, "due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses").
Based on the evidence presented, the district court made detailed findings on each of the statutory factors and concluded that joint physical custody was appropriate. The court's findings on this issue are amply supported by the record.
II.
Having concluded that Marrone would be caring for the children 45% of the time in a joint physical custody arrangement, the district court ordered a cross-award of child support pursuant to Broas v. Broas , 472 N.W.2d 671, 673 (Minn.App. 1991). McNulty argues that the award was inappropriate because the district court erroneously concluded that the children reside with Marrone 45% of the time and because the award violates Minn. Stat. § 518.551, subd. 5(b)(E) (1996), which precludes a deviation from the child support guidelines if the noncustodial parent provides child care for the custodial parent.
Under the cross-award formula, applied in joint physical custody situations, a parent is required to pay guideline child support only for the months that the other parent has custody of the children. Valento v. Valento , 385 N.W.2d 860, 862 (Minn.App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis , 367 N.W.2d 633, 636 (Minn.App. 1985); see also Broas , 472 N.W.2d at 673 (applying the Hortis/Valento formula in a joint custody situation). In cases in which custody is not shared equally, the guideline amount is reduced to reflect the amount of time support is owed while the other parent has custody. Broas , 472 N.W.2d at 674; Valento , 385 N.W.2d at 863. Here, the court reduced Marrone's statutory guideline support obligation to reflect the fact that the children reside with him 45% of the time.
Because we conclude that the district court did not abuse its discretion in granting joint physical custody, we find the court appropriately applied the cross-award formula in calculating child support. There is no merit in McNulty's argument regarding Minn. Stat. § 518.551, subd. 5(b)(E). Marrone is not a "noncustodial" parent providing child care.
III.
Marrone, who is a computer programmer, receives an annual bonus in addition to his base salary. Marrone testified that he wanted to use the annual bonus to establish a retirement fund for himself. The district court excluded the bonus income from the court's calculation of child support, finding that the "amount of the annual bonus tends to fluctuate substantially" and that "no objective standards are utilized in the calculation of the annual bonus."
The trial court has broad discretion in determining a support obligation and a reviewing court will affirm such a determination if it has "an acceptable and reasonable basis in fact." Bliss v. Bliss , 493 N.W.2d 583, 586 (Minn.App. 1992), review denied (Minn. Feb. 12, 1993).
For the purpose of setting child support, income is defined as "any form of periodic payment to an individual." Minn. Stat. § 518.54, subd. 6 (1996). Bonuses are a form of periodic payment and can be considered income. Compare Haasken v. Haasken , 396 N.W.2d 253, 261 (Minn.App. 1986) (affirming the exclusion of bonuses from net income because they were variable and "not guaranteed") with Desrosier v. Desrosier , 551 N.W.2d 507, 509 (Minn.App. 1996) (reversing a district court's child support order excluding bonus income); and Novak v. Novak , 406 N.W.2d 64, 68 (Minn.App. 1987) (affirming child support order requiring parent to pay as additional support a percentage of his income derived from bonuses, even though bonuses were not guaranteed), review denied (Minn. July 22, 1987).
Here, Marrone's 1996 projected annual bonus of $7,000 would increase his base salary by 19%. Marrone's past bonuses have increased his base salary by: 14% in 1991; 32% in 1992; 28% in 1993; 50% in 1994 and 15% in 1995. They are quite regular and, thus, are "periodic payments" within the meaning of Minn. Stat. § 518.54, subd. 6. The district court should have at least conservatively considered them in determining Marrone's child support obligation. If they ever cease, Marrone has the basis to move the court for a reasonable adjustment. See Minn. Stat. § 518.64 (1996) (addressing modification of child support).
On remand, the trial court is not ordered to take part of respondent's bonuses, but it should seriously consider whether they are periodic payments within the meaning of the Minnesota Statutes that designate sources of income available for child support.
IV.
The district court awarded McNulty 100% of her stock holdings and retirement pension, which the parties agree were marital assets, free and clear of any claim by Marrone. Marrone challenges this award as an abuse of discretion. We agree.
A trial court's division of marital property must be just and equitable, but need not be equal. See Ruzic v. Ruzic , 281 N.W.2d 502, 505 (Minn. 1979) (division of marital property need not be mathematically equal, but must be just and equitable). The court must consider a variety of factors when dividing marital assets. See Minn. Stat. § 518.58, subd.1 (1996) (describing the factors the court shall consider when dividing marital property). In addition, the court may consider "all other matters disclosed by the evidence" at trial. See Ruzic , 281 N.W.2d at 505 (citation omitted).
The district court made no findings regarding its award to McNulty of 100% of these two marital assets. The court's failure to do so was an abuse of discretion. In light of our decision to remand the issue of Marrone's bonuses to the court for further consideration, fairness dictates that we remand for further consideration the division of these two marital assets. See Nelson v. Nelson , 291 Minn. 496, 497-98, 189 N.W.2d 413, 415-16 (1971) (reviewing in toto the district court's decisions regarding child support, property division, spousal maintenance, and attorney fees in evaluating the fairness of the awards); Driscoll v. Driscoll , 414 N.W.2d 441, 446 (Minn.App. 1987) (considering together the property division and child support award to determine if court's award of equity in the homestead and maintenance was an abuse of discretion).