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«This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2010). STATE OF MINNESOTA IN COURT OF ...»

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2010).




In re the Marriage of:

Danielle M. Kerr, n/k/a Danielle Dubois, petitioner,



Jonathan R. Kerr,


Filed February 27, 2012 Affirmed Huspeni, Judge* Dakota County District Court File No. 19-F8-07-010912 Christine J. Cassellius, Jessica L. Sanborn, Severson, Sheldon, Dougherty & Molenda, P.A., Apple Valley, Minnesota (for respondent) Jonathan R. Kerr, Minneapolis, Minnesota (pro se appellant) Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and Huspeni, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


HUSPENI, Judge In this child-support dispute, appellant challenges the district court’s denial of his motion to modify his child-support obligation and argues that the district court (1) miscalculated the basic support obligation and thus erroneously concluded that appellant’s increased income does not render the existing child-support order unreasonable or unfair, and (2) abused its discretion by concluding that appellant’s parenting-time percentage is below 45.1% because consideration was not given to holidays or significant time periods in which the parties’ children are in appellant’s care but do not stay overnight. Because the district court did not abuse its discretion in determining either appellant’s child-support obligation or his parenting-time percentage, we affirm.

FACTS Appellant Jonathan R. Kerr and respondent Danielle M. Kerr petitioned the district court to dissolve their marriage in September 2007. Several months later, respondent moved the district court for temporary child support, child-care support, and medical support for the parties’ two minor children. The parties submitted a parenting-time schedule whereby appellant would have the children for six overnights and respondent would have the children for eight overnights during every two-week period. The district court adopted the parties’ proposed biweekly parenting-time schedule and ordered appellant to pay monthly basic child support of $1,135. In reaching that amount, the district court utilized three methods to calculate appellant’s parenting-time percentage.

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biweekly parenting-time schedule is less than 45%.1 At the dissolution hearing in April 2008, appellant contended that his Sunday parenting time should be extended to Sunday overnights, that the parent responsible for picking up the children from daycare at the end of the day should be considered the responsible parent during the day, and that the parenting-time percentage should include holiday time and exclude daycare time. In the resulting August 2008 dissolution decree, the district court calculated appellant’s basic monthly child-support obligation to be $1,141, affirmed the existing biweekly parenting-time schedule, adopted a parenting-time schedule for holidays and vacation time, and determined that appellant’s parenting time was 42.8%. The district court also concluded that appellant’s requested changes to the biweekly parenting-time schedule for Sunday overnights was “not conducive to a stable and consistent schedule for the minor children,” and that the parent who takes the children to daycare in the morning is the responsible parent during the day.

Appellant moved for amended findings, arguing that the district court should not have determined the parties’ parenting-time percentage without considering the vacation and holiday parenting-time schedules or the amount of time each day that the children actually spend with each parent. The district court denied the motion as untimely. On appeal to this court, appellant did not challenge the parenting-time schedule or the 1 Under Minnesota’s child-support statute, the calculation of a parent’s child-support obligation is adjusted based on the parent’s parenting-time percentage. Minn. Stat.

§ 518A.36 (2010).

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other matters.

In November 2009, appellant moved the district court to modify the biweekly parenting-time schedule and child-support obligation, and specifically renewed his request that his Sunday parenting time be extended to overnights and that the parent responsible for picking up the children at the end of the day be considered the responsible parent during that day. Again, the district court denied the motion, concluding that modifying the biweekly parenting-time schedule is not in the children’s best interests.

Appellant’s motion for amended findings was denied.

In May 2010, appellant brought a motion before the child-support magistrate that included a request to recalculate the parenting-time percentage to reflect “the actual parenting time each party has with their minor children.” The child-support magistrate declined to consider this aspect of appellant’s motion, concluding that the issue had already been “fully and fairly litigated” and decided by the district court. The district court denied appellant’s motion to review the order of the magistrate.

In January 2011, appellant moved the district court to recalculate appellant’s parenting-time percentage; appellant argued that his increased income resulted in a change in circumstances making the terms of the existing child-support order unreasonable and unfair. He sought recalculation of the parenting-time percentage, to reflect the actual parenting time each party has with their children, using a two-year calendar reflecting the parties’ vacation time and holidays throughout the year rather than using the biweekly parenting-time schedule as representative of a full year. Appellant

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the district court concluded that the change in circumstances from appellant’s increased income did not make the terms of the existing child-support order unreasonable or unfair.

But the district court recalculated the parties’ parenting-time percentages to account for the two overnights gained by appellant based on each party’s annual two-week vacation time with the children. The district court declined to consider holidays in its recalculation, concluding that “there is no significant gain or loss of overnights by either party” due to holidays because the parties alternate holidays each year. The district court recalculated appellant’s parenting-time at 43.4%, which does not change appellant’s child-support obligation. This appeal followed.

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Appellant challenges the denial of his motion to modify his child-support obligation based on his increased income.2 District courts have broad discretion in determining whether to modify child-support orders. Ludwigson v. Ludwigson, 642 N.W.2d 441, 445 (Minn. App. 2002). The district court may modify an existing childWe note that appellate courts rarely, if ever, address this argument in a stand-alone appeal. Cf. In re D.T.R., 796 N.W.2d 509, 513 (Minn. 2011) (noting that, to have standing to appeal, a party must be aggrieved by the ruling at issue or have standing conferred by statute). Success on this issue would result in an increase in appellant’s dollar-contribution to child support—a result that one would hope would be universally agreed upon by parents of minor children and obviate any continued litigation. But here, success on the second part of appellant’s motion—his request that his parenting time be established as more than 45.1%—would result in a substantial reduction of his support contribution. Support and parenting-time issues are yoked together in Minn. Stat.

§§ 518A.27-.39 (2010), and appellant has yoked them together in his motion.

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circumstances that renders the existing child-support obligation unreasonable and unfair.

Minn. Stat. § 518A.39, subd. 2(a); Bormann v. Bormann, 644 N.W.2d 478, 480-81 (Minn. App. 2002). On appeal, we will not alter that decision absent an abuse of discretion. Ludwigson, 642 N.W.2d at 445. A district court abuses its discretion if it resolves the matter in a manner that is against logic and the facts on the record. Id.

Minn. Stat. § 518A.39, subd. 2(a) identifies eight types of changes that may qualify for modification, including the “substantially increased or decreased gross income” of one parent. Generally, the party requesting modification of the existing childsupport order has the burden of demonstrating both a substantial change in circumstances and the unfairness and unreasonableness of the existing child-support order because of that change. Bormann, 644 N.W.2d at 481. But the modification statute also provides (1) a presumption of a substantial change in circumstances and (2) a rebuttable presumption of unreasonableness and unfairness if “the application of the child support guidelines in section 518A.35, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $75 per month higher or lower than the current support order.” Minn. Stat. § 518A.39, subd. 2(b)(1). When this 20% and $75 difference is established, the presumption of a substantial change in circumstances is irrebuttable, but the presumption of unreasonableness and unfairness is rebuttable. Frank-Bretwisch v. Ryan, 741 N.W.2d 910, 914 (Minn. App. 2007).

Appellant based his motion to modify child support on the increase in his gross monthly income from $6,536 to $9,295 during the period between August 2008 and

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approximately $6,667 during that same period. Neither party disputes these increases. In acknowledging these new income amounts, the district court concluded that appellant’s monthly support obligation would be $1,302; a change of more than $75, but less than 20%, from appellant’s existing monthly obligation. Thus, the district court ruled that the statutory presumptions were not present in this case, and otherwise concluded that there had not been a substantial change in circumstances making the existing child-support order unreasonable and unfair.

The parties agree, however, that the district court miscalculated appellant’s new monthly basic child-support obligation. We agree; the parties correctly calculate a new monthly basic child-support obligation of $1,392,3 a figure that is both $75 more and 22% higher than the existing obligation and meets the irrebuttable presumption of the statute. Minn. Stat. § 518A.39, subd. 2(b); see also Frank-Bretwisch, 741 N.W.2d at 914 (holding that presumption of a substantial change in circumstances is irrebuttable). Thus, the district court erred by concluding that there was not a substantial change in circumstances.

Respondent argues that the district court’s miscalculation of appellant’s childsupport obligation is not reversible error because appellant was not harmed by the error.

3 The parties’ new combined gross income is $15,962 monthly, resulting in appellant’s pro rata basic support obligation of $1,582. See Minn. Stat. § 518A.35 (guideline for determining basic support obligation). After applying the 12% parenting expense adjustment, Minn. Stat. § 518A.36, appellant’s new support obligation is reduced to $1,392. After adding medical and child-care expenses, which have also increased, appellant’s resulting monthly total child-support obligation is both 22% and more than $75 higher than his existing monthly total child-support obligation.

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that the error prejudiced the complaining party. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975); see also Minn. R. Civ. P. 61 (requiring harmless error to be ignored). Here, appellant’s change in gross monthly income would result in a $251 increase in his monthly basic child-support obligation.

Thus, appellant was not prejudiced by the district court’s error.4 Finally, we note again that while a presumption of changed circumstances, as is present here, is irrebuttable, that presumption is, by itself, insufficient to permit a modification of child support. See Minn. Stat. § 518A.39, subd. 2(b)(1); FrankBretwisch, 741 N.W.2d at 914. There must be both changed circumstances and a finding—not just a statutorily-created rebuttable presumption—that the terms of the existing support order are unreasonable and unfair. Here, the existing support order is not unreasonable and unfair regarding appellant because, as noted above, any modification of his support obligation would result in an increase in his obligation.

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Appellant next argues that the district court abused its discretion because it did not consider the effect of holidays or significant time periods in which the parties’ children are in appellant’s care when the district court concluded that appellant’s parenting-time percentage is below 45.1%. The parenting-expense-adjustment statute requires that a 4 To the extent that appellant also seeks recalculation of his parenting-time percentage on this basis, we observe that appellant’s argument is unavailing. Neither Minnesota law, nor appellant’s brief, provides a legal basis for recalculating a party’s parenting-time percentage based on a party’s substantial increase in income.

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presumed for each parent.” Minn. Stat. § 518A.36, subd. 1(a). The yoking together of support and parenting time is expressed in the parenting-expense-adjustment statute, which provides for a 12% adjustment to the basic child-support obligation if the obligor’s parenting-time percentage is between 10% and 45%; but if the obligor’s parenting-time percentage is between 45.1% and 50%, parenting time is presumed equal and an alternative adjustment is applied to the basic child-support obligation. Minn. Stat.

§ 518A.36, subds. 2-3. Under that alternative adjustment, and accounting for the parties’ increased incomes, appellant’s monthly basic child-support obligation would decrease from $1,141 to $327. See id., subd. 3(b).

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