Opinion
No. C7-01-1547.
Filed April 16, 2002.
Appeal from the District Court, Dakota County, File No. F40050302.
Richard A. Emerick, (for appellant)
Stephanie L. Milota, (respondent pro se)
Lisa D. Kontz, Assistant Dakota County Attorney, (for intervenor Dakota County)
Joyce M. Grannis, (for guardian ad litem)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant challenges the district court's order regarding the parties' income, child support, day care, and the award of attorney fees to respondent. Because the district court's determination of appellant's income is reasonable based upon the facts, we affirm. But, because the basis upon which the district court determined child support, day-care contribution, respondent's income, and attorney fees cannot be discerned, we reverse and remand on those issues.
FACTS
Appellant Scott Morell and respondent Stephanie Milota were in a relationship for five years that resulted in the birth of their son in 1995. They never married, but appellant submitted to blood testing and signed a recognition of parentage soon after the child's birth. About five years after he signed the recognition of parentage, appellant moved for an adjudication of paternity and custody of his son. The paternity judgment provided that the child's "temporary residence" would remain with mother, and father was to pay temporary child support. A guardian ad litem was appointed to make recommendations concerning custody of the child.
In accordance with the guardian ad litem's recommendation and the parties' agreement, the district court ordered, on May 10, 2001, that the parties share joint legal custody, and that the child's "primary residence" be with respondent, "for the purposes of enrolling the Child in school and receipt of mail." The district court then determined the parties' parenting schedule, which provides that both appellant and respondent have significant parenting time with the child. When the agreement of the parties was placed on the record, the district court said that it would enter a second, separate order addressing the parties' financial issues.
The district court's second order, entered July 10, 2001, found that appellant's gross monthly income was $2,500 and his net monthly income was $1,850. The district court made no findings as to respondent's gross or net monthly income. The court then "specifically [found] that the facts of this case [did] not warrant application of the Valento formula," and ordered appellant to pay to respondent $426.50 in child support and $162.50 in child-care expenses. The court did not address whether the parties' stipulated custody arrangement constituted an award of sole physical custody in respondent with visitation in appellant or joint physical custody.
Appellant filed a motion for amended findings of fact relating to the parties' incomes, the amount of time each party has with the child, and the child's day-care expenses, and requested that his child-support obligation be recalculated under the Hortis/Valentoformula. The district court denied appellant's motion. Appellant then appealed the district court's July 10, 2001, order.
DECISION
1. Child support
Appellant argues that the district court erred in declining to apply the Hortis/Valento formula to calculate child support. We have considered both the judgment directly challenged by appellant and the district court's May 10 order to determine whether the district court acted properly in its child-support and child-care determinations. See Minn.R.Civ.App.P. 103.04 (on appeal from a judgment this court may review any order involving the merits or affecting the judgment).
After this court's inquiry, appellant submitted a letter requesting that we take "judicial notice" of a transcript and order for protection included in the index to his appellate brief, as it contains "admissions" that the custody situation in this case is, in fact, a joint custody arrangement. These documents are from a different district court file, they were not made part of the file on appeal, and the proceedings occurred after the order on appeal was entered in the district court. Moreover, appellant's request is not properly before this court because it was not made by motion. See Minn.R.Civ.App.P. 127 (requiring relief to be sought by motion).
We may not base a decision on matters outside the record on appeal, and matters not produced and received in evidence below may not be considered on appeal. Plowman v. Copeland, Buhl Co., 261 N.W.2d 581, 583 (Minn. 1977). However, documents outside the record may be considered when: (1) they are documentary; (2) they are conclusive; and (3) they will be used to affirm the district court. Id. Since appellant is seeking reversal of the district court's order, the transcript and order were not considered.
Appellant also includes documents from an administrative hearing in which new figures relating to respondent's income were submitted, but of which, appellant argues, the district court "was not aware" at the time the order determining the financial issues of the parties was entered. Documents relating to this hearing are not part of the record on appeal. See J.W. v. C.M., 627 N.W.2d 687, 697 (Minn.App. 2001) (documentation not received until after the district court's order was entered was not admitted into evidence and is outside record on appeal) , review denied (Minn. Aug. 15, 2001). We may not base a decision on matters outside the record on appeal, and matters not produced and received in evidence below may not be considered on appeal. Plowman, 261 N.W.2d at 583. Thus, these documents also were not considered on appeal.
The district court has broad discretion to provide for the support of the parties' children. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The district court abuses its discretion if it improperly applies the law or if it clearly errs by establishing child support in a manner that is against logic and the facts on record. Id.; see Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (in child custody case, district court abused discretion if law was misapplied).
Appellant argues that we are to look at the amount of time the child spends with each parent in determining whether the district court erred in declining to apply the Hortis/Valentocalculation. However, determining child support "solely on the amount of time the noncustodial parent spends with the child * * * is at odds with the legislative scheme" of relying on whether the parent has sole or joint physical custody for the determination of child support. Rogers v. Rogers, 622 N.W.2d 813, 821 (Minn. 2001). Because the district court's order does not state whether its child-support determination was based upon a joint physical or sole physical custody situation, we will consider its conclusions in both of these contexts.
a. Joint physical custody
In cases of joint physical custody, the application of the Hortis/Valento formula to determine child support is an application of the child-support guidelines. Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn.App. 2001). Under the Hortis/Valento formula, the guideline child-support amount is "the amount indicated by the guidelines, but only for the periods of time that the other parent has actual custody" of the child. Id. (citation omitted). The resulting figure is presumed to be the correct amount of child support. Id. While this presumption is rebuttable, deviations from the guideline amount may be made only if the district court makes the findings required in Minn. Stat. § 518.551, subd. 5(i). Id.
The district court did not make any findings beyond concluding that "the facts of this case do not warrant application of the Valento formula." Thus, it appears the district court did not believe that this was a situation that warranted the application of joint-physical-custody guideline support. However, the district court's conclusion may also imply that the court intended to deviate from the Hortis/Valentoformula (which technically is not an application of guideline support), in which case it would be necessary for the court to make the required statutory findings.
b. Sole physical custody
Where one party has sole physical custody of the child, child support is to be paid according to statutory guidelines, which "establish a rebuttable presumption that the prescribed amount is owed." Rogers, 622 N.W.2d at 819. If the district court applies guideline child support, it must
make written findings concerning the amount of the obligor's income used as the basis for the guidelines calculation and any other significant evidentiary factors affecting the determination of child support.
Minn. Stat. § 518.551, subd. 5(i) (Supp. 2001). In this case, the district court found that appellant's net monthly income was $1,850, and ordered him to pay respondent $426.50 in child support. However, using this finding, guideline support is actually $462.50. The court made no other findings relating to child support, and it is unclear whether it intended to order guideline support but made a clerical error, or whether it intended to deviate from the statutory guideline support amount.
To overcome the rebuttable presumption that appellant owes the guideline amount, the district court must make
written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria of paragraph (c) and how the deviation serves the best interest of the child.
Minn. Stat. § 518.551, subd. 5(i); Rogers, 622 N.W.2d at 815. If the district court intended to deviate from guideline support, it would be necessary for it to make the required statutory findings.
Because the district court made no specific findings relating to physical custody of the child and no findings explaining why guideline support was not ordered, it is impossible to determine whether the court committed an error in its child-support calculation or failed to make findings justifying a deviation. We therefore remand for further findings not inconsistent with this opinion.
2. The parties' incomes
Appellant argues that the district court erred in its findings of the parties' respective incomes. Findings on income will be affirmed if those findings have a reasonable basis in fact and are not clearly erroneous. State, County of St. Louis v. Tinker, 601 N.W.2d 468, 470 (Minn.App. 1999).
In the "Facts" section of his brief, appellant notes that because his attorney withdrew during the time period in which the parties were to submit documentation of their income and earnings, his documentation was not submitted. Thus, the district court's order was made "considering only the documents and arguments submitted on by [respondent]." However, appellant does not argue that the district court erred in making income determinations based only on respondent's and the county's submissions. We decline to reach an issue in the absence of adequate briefing. State, Dep't of Labor Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997). We also decline to address allegations unsupported by legal analysis or citation. Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n. 1 (Minn.App. 1994). Thus, if appellant meant to argue that this was error, it has been waived.
a. Appellant's income
The district court found that appellant's net monthly income was $1,850, and that this amount was based, "in part on [appellant's] own admission of his net income." The court also found that appellant's gross monthly income was $2,500. The record contains an undated copy of an interrogatory in which appellant answered $1,850 to the question of the "exact amount of [appellant's] present take-home pay per month, excluding overtime." In the same interrogatory, appellant answered that his gross monthly income was $2,500.
The record also contains earnings statements for the months of May to August 2000, each of which states that the net amount paid to appellant for the month was $2,308.75. Earnings statements for the months of September to December 2000, show that the total net amount paid for each month was $1,850. All earnings statements indicate that appellant's "total earnings" for the month was $2,500. Finally, at the hearing on April 26, 2001, appellant argued that his gross income for the year 2000 was $24,000. From this amount, the county calculated appellant's gross monthly income as $2,000 and net monthly income as $1,467.
Based upon the evidence submitted, the district court's finding that appellant's gross monthly income was $2,500 and net monthly income was $1,850 is reasonable. There is no clear error in the district court's finding of appellant's income, and it is affirmed.
b. Respondent's income
The district court made no finding as to respondent's income, even though evidence of her income was timely submitted. If, upon remand, the district court finds that this is a sole custody situation and awards statutory guideline child support to respondent, it is not necessary for the court to make findings of respondent's income to determine child support, and no error was committed. See Minn. Stat. § 518.551, subd. 5(i) (if the court applies guideline child support, the court must make written findings concerning the amount of obligor's (i.e., appellant's) income used as basis for determining guidelines calculation). However, if the district court intended to deviate from the guidelines, written findings regarding respondent's income must also be made. See Minn. Stat. § 518.551, subd. 5(i) (if court deviates, it must specifically address criteria of paragraph (c)); Minn. Stat. § 518.551, subd. 5(c)(1) (Supp. 2001) (court must take into consideration earnings and income of both parents).
If the district court determines that the parties have a joint-physical-custody situation, then it must make findings relating to respondent's income, whether it applies the Hortis/Valento formula or not. See Schlichting, 632 N.W.2d at 792 (support amount is amount indicated by statutory guidelines, but only for period of time that other parent has custody; if deviating, Minn. Stat. § 518.551, subd. 5(c) findings required, which include findings of both parties' income).
Whether the district court erred in failing to make findings relating to respondent's income hinges on the district court's findings relating to custody. If, on remand, the district court finds that this is a custody situation that warrants findings of respondent's income, then those findings must be made.
3. Child-care costs
In the July 10 judgment, the district court ordered that appellant pay $162.50 monthly for child-care costs. Appellant argues that this order was in error because it did not take into consideration the amount he is currently paying for child care. We need not reach this issue because we hold that the district court abused its discretion in making its child support calculation.
The parties' child-care contributions are based upon each party's respective net monthly income, so we must consider both appellant's and respondent's net monthly income to determine whether appellant's child-care contribution was properly calculated. Minn. Stat. § 518.551, subd. 5(b) (Supp. 2001). Since the district court made no findings as to respondent's net monthly income, its child-care-contribution calculation could not have been based upon the parties' respective net monthly incomes, and the district court's child-care calculation is an abuse of discretion. We reverse the district court's child-care determination, and, on remand, the district court shall calculate appellant's child-care contribution in accordance with the statutory formula.
4. Attorney fees
Appellant argues that it was an abuse of discretion for the district court to order him to pay respondent's attorney fees. The district court awarded attorney fees of $500 to respondent because appellant "is financially able to and shall share in the cost of [respondent's] attorney fees."
In dissolution cases there are several bases for attorney fee awards. Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn.App. 2001). Because there are several bases for the award, the district court must identify the authority for its fee award in order for this court to properly review the award. Id. Here, the district court did not explicitly identify the basis for the fee award.
Generally, the award of attorney fees in dissolution cases is governed by Minn. Stat. § 518.14, subd. 1 (2000), which allows both need-based and conduct-based awards. Id. Thus, district courts must indicate to what extent the award is based upon need or conduct, or both. Id. In this case, the court did not do so, but, based upon the district court's factual finding supporting the award, it can be inferred that the entire award was need-based.
The district court shall award attorney fees if it finds that (1) the fees are necessary for the good-faith assertion of the party's rights and will not contribute unnecessarily to the length and expense of the proceeding; (2) the party from whom the fees are sought has the means to pay them; and (3) the party to whom fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1. Findings relating only to the second factor were made by the district court.
A lack of specific findings on the statutory factors is not fatal to an award where we are able to infer that the district court considered the statutory factors and where the district court was familiar with the case and had access to the parties' financial records:
[A] lack of specific findings on the statutory factors for a need-based fee award * * * is not fatal to an award where review of the order "reasonably implies" that the district court considered the relevant factors and where the district court "was familiar with the history of the case" and "had access to the parties' financial records."
Geske, 624 N.W.2d at 817 (quotation omitted). In this case, there are no findings of fact relating to any of the other statutory factors, and thus, the award of attorney fees is not supported. On this record, we are not able to make such inferences. Therefore, we remand the district court's award of attorney fees, and, on remand, the district court shall provide additional findings, if it chooses to award attorney fees.
5. Evidentiary hearing
Appellant argues that errors of fact could have been avoided if the district court would have held an evidentiary hearing on the financial issues. However, it is unclear whether appellant is claiming that the district court erred in this respect.
A review of the record shows that appellant never requested the district court to hold an evidentiary hearing. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (we will generally not consider matters not argued and considered in the court below). Furthermore, appellant cites no law in support of his argument. We decline to address allegations unsupported by legal analysis or citation. Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n. 1 (Minn.App. 1994). If appellant meant to argue that the district court erred in making its determinations without an evidentiary hearing, this argument has been waived.
6. Expenses incurred on appeal
In their briefs, each party requests that the other be required to pay costs and expenses on appeal.
Respondent requests reimbursement for her "time and expense" incurred on appeal. Appellant requests that "appeal costs" be assessed against respondent due to her behavior. Neither party cited authority for the request or provided documentation for the amount sought, and the inclusion of such requests within the briefs is improper. See Minn.R.Civ.App.P. 139.03 (costs and disbursements may be taxed within 15 days after filing of decision); 139.06 (request for attorney fees must be made by separate motion).
Pro se respondent's request of compensation for her "time" is improper. See State by Head v. Savage, 255 N.W.2d 32, 38 (Minn. 1977) (holding that award of attorney fees must be based on actual cash outlay for the services of counsel). Although Minn.R.Civ.App.P. 139.01 allows the recovery of costs for the prevailing party and Minn.R.Civ.App.P. 139.02 allows the prevailing party to recover disbursements necessarily paid or incurred on appeal, respondent is not the prevailing party in this action, and thus is not entitled to recover expenses on appeal. See Servin v. Servin, 345 N.W.2d 754, 759 (Minn. 1984) (an appellant prevails if the order or judgment is reversed or modified; a respondent prevails if the decision is affirmed without modification).
Although appellant argues that respondent's conduct is improper, there is no separate motion for attorney fees and we conclude that sanctions are not appropriate.