Michael Charles Sasse, f/k/a Michael Charles Sasse Penkert, petitioner, Appellant, vs. Kathryn Elizabeth Penkert, f/k/a Delight Bernice Penkert, Respondent.
A14-0440
STATE OF MINNESOTA IN COURT OF APPEALS
Filed February 9, 2015
Halbrooks, Judge
Hennepin County District Court, File No. 27-FA-11-658
STATE OF MINNESOTA IN COURT OF APPEALS A14-0440
Michael Charles Sasse, f/k/a Michael Charles Sasse Penkert, petitioner, Appellant,
vs.
Kathryn Elizabeth Penkert, f/k/a Delight Bernice Penkert, Respondent.
Filed February 9, 2015 Affirmed in part, reversed in part, and remanded Halbrooks, Judge
Hennepin County District Court File No. 27-FA-11-658
Deborah M. Gallenberg, Honsa & Associates, P.A., Minneapolis, Minnesota (for appellant)
Nicholas M. Wenner, Jordan W. Anderson, Parker & Wenner, P.A., Minneapolis, Minnesota (for respondent)
Considered and decided by Connolly, Presiding Judge; Halbrooks, Judge; and Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
On appeal from the district court’s modifications of parenting time and child
support, appellant argues that the district court abused its discretion. We affirm the
FACTS
The marriage of appellant Michael Charles Sasse and respondent Kathryn Elizabeth Penkert was dissolved pursuant to stipulated findings of fact, conclusions of law, order for judgment and judgment and decree entered in 2011. The parties have two minor children in common. The original judgment granted the parties joint legal custody and awarded shared parenting responsibilities. At the time the district court entered the original judgment, appellant was a full-time student at the University of Minnesota’s College of Veterinary Medicine, and respondent was unemployed. Without explicitly addressing physical custody, the district court granted appellant 10-25% parenting time but stated, “Upon [appellant’s] completion of his Veterinary Medicine Degree the parties agree to review the issue of Joint Physical Custody and Parenting Time Schedule.” The original judgment provided that appellant would pay respondent $100 per month in basic child support and that child support could be reviewed and modified based upon a motion by either party.
On June 14, 2012, the parties filed a stipulation and order to amend the original
judgment, which the district court signed, but an amended judgment was never entered.
The stipulation provided that the parties would review parenting time when appellant
graduated from veterinary school “with the parties’ anticipation of establishing a 50/50
parenting schedule.” Appellant graduated from veterinary school on May 11, 2013.
Respondent filed a responsive motion, asking the district court to deny appellant’s motion in its entirety and to order that (1) the parenting-time schedule be modified according to respondent’s proposed schedule, (2) appellant’s basic child-support obligation be modified to $1,047 and respondent’s medical-support obligation be $38 per month, (3) the parties divide the children’s uninsured and unreimbursed medical expenses so that appellant pays 75% and respondent pays 25%, and (4) each party be responsible for childcare expenses incurred during their parenting time.
On September 19, 2013, the district court ruled on the parties’ motions in a post-decree order. Relevant to this appeal, the district court (1) denied appellant’s motion for
joint physical custody; (2) found that it is “in the children’s best interest to have
consistent, predictable contact with both parents provided that said parenting time does
not interfere with the children’s ability to attend school” and adopted respondent’s
proposed parenting-time schedule; (3) ordered that appellant’s child-support obligation
be $1,027 per month and respondent’s share of the health and dental coverage be $44 per
Appellant filed a “notice of motion and motion for review” on October 24, 2013.
Appellant moved the district court to amend various findings in its September 19 post-decree order regarding physical custody, parenting time, primary residence during the
summer, retroactivity of child support, respondent’s imputed gross income, the parties’
PICS percentages, and appellant’s request for a downward deviation. Appellant’s motion
did not identify the rule of civil procedure that served as the basis for the motion, but he
submitted a memorandum of law “in support of [appellant]’s request that the Court
amend various Findings of Fact . . . pursuant to Minnesota Rule of Civil Procedure 52.”
Respondent also filed a notice of motion and motion on October 24, 2013, moving the
district court to amend its September 19 order explicitly pursuant to
In two orders filed on January 22, 2014, the district court assumed that appellant’s
“motion for review” was a motion seeking “permission to bring a Motion to Reconsider.”
The district court denied the motion because appellant failed to follow the proper
procedure to bring a motion to reconsider and because he “failed to prove that the Court’s
Findings of Fact and Conclusions of Law were clearly erroneous.” The district court
granted respondent’s motion to amend the September 19 order. In an amended post-decree order, the district court modified the parties’ parenting-time schedule and child-
D E C I S I O N
I.
As a threshold matter, respondent asserts that this appeal is untimely. Therefore,
we must determine whether appellant filed the appeal within the 60-day time period
required under
We “liberally construe[] the contents of notices of appeal in favor of their
sufficiency.” Id. Rule 104.01 provides that “an appeal may be taken from a judgment
within 60 days after its entry, and from an appealable order within 60 days after service
by any party of written notice of its filing.”
[I]f any party serves and files a proper and timely motion of a type specified immediately below, the time for appeal of the order or judgment that is the subject of such motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding. This provision applies to a proper and timely motion:
. . . .
(b) to amend or make findings of fact under
Minn. R. Civ. P. 52.02 , whether or not granting the motion would alter the judgment; [or](c) to alter or amend the judgment under
Minn. R. Civ. P. 52.02 . . . .
Id., subd. 2.
II.
Before reaching the substantive issues in this appeal, we must determine whether
appellant’s October 24, 2013 motion was a motion to reconsider or a motion for amended
findings. Appellant’s motion was titled a “motion for review.” The district court found
that a motion for review was “not applicable in this procedural situation.”1 The district
court assumed that appellant was asking for permission to bring a motion to reconsider.
Appellant contends that his motion was a motion for amended findings pursuant to
The issue here is whether the district court erred in finding that appellant’s motion
was not a motion for amended findings under the procedural rules. We review the
interpretation of procedural rules de novo. Huntsman, 633 N.W.2d at 854. The rule
states, “Upon motion of a party . . . the court may amend its findings or make additional
findings, and may amend the judgment accordingly if judgment has been entered.”
Appellant’s motion does not cite rule 52.02 as its basis, but it states that it seeks to “amend” numerous findings of fact in the September 19 post-decree order. And appellant’s accompanying memorandum of law cites rule 52.02 as the basis for the motion. Appellant argues that his motion and memorandum satisfy the Lewis standard because they identify the alleged defects in the district court’s findings of fact and
“[A] motion for ‘amended findings’ that does no more than reargue a prior motion is really a motion to ‘reconsider.’” Id. at 315. While parties are required to do more than reargue a prior motion, the purpose of a motion for amended findings is to allow the district court to review its own discretionary findings. Id. Appellant’s motion asks the district court to amend numerous findings of fact and conclusions of law, and appellant’s memorandum argues that many of the district court’s findings are erroneous in light of the discussions during the September 4 hearing. Reading appellant’s memorandum of law in its entirety, the motion and memorandum sufficiently explain why appellant believes that the district court’s findings are erroneous and why his proposed findings are correct. We conclude that appellant’s motion was a proper motion for amended findings pursuant to rule 52.02.
Because we conclude that appellant properly moved for amended findings, the parenting-time and child-support issues were preserved and are properly before us.
III.
Appellant argues that the district court abused its discretion when modifying parenting time because it (1) awarded appellant less than 25% parenting time without making the appropriate findings to rebut the 25% statutory presumption, (2) based its parenting-time decision on an erroneous interpretation of what constitutes a change in “primary residence,” (3) failed to consider the best-interests factors in the aggregate, and
A. Statutory Presumption of 25% Parenting Time
Under Minnesota law, there is a rebuttable presumption that a parent is entitled to
at least 25% of the parenting time for their children.
The parties dispute what percentage of parenting time appellant has under the amended schedule, but it is undisputed that the district court awarded less than 25% parenting time to appellant. The district court did not state that it was awarding less than the 25% statutory presumption, and it did not find that sufficient evidence rebutted the presumption. The district court minimally addressed the children’s best interests and the
[I]t is not in the minor children’s best interests to have to make a trip of at least an hour in the morning rush hour on their way to school Monday mornings. Therefore, the Court will order that school year parenting time be [from Friday at 7:00 PM to Sunday at 5:00 PM every other week], except that . . . it is in the minor children’s best interest that [appellant] also have parenting time until 5:00 P.M. on the Mondays that the children do not have school if [appellant] has the day off of work.
But the district court indicated at the November 19 hearing that it did not intend to grant parenting time in an amount less than the statutory presumption. The record reflects that the district court stated that it “never intended in its post decree order to not be consistent with the presumption under the statute . . . . [T]he Court never intended not to have the presumption met.” In addition, the district court stated:
The Court will make amended findings to make sure that whatever parenting time schedule it amends, it changes to reflect the mistake that the Court made regarding the 25 percent, that it is clear what is the parenting time schedule. Holiday, summer and regular school. And it will meet the 25 percent.
The record lacks sufficient findings to conclude that the district court contemplated the fact that it was not satisfying the 25% presumption and that it intentionally granted parenting time in an amount less than the presumption.
Appellant argues that the district court erred in construing his proposed summer schedule as a change in the children’s primary residence and therefore abused its discretion by basing its parenting-time decision on an erroneous interpretation of what constitutes a change in primary residence. Appellant’s proposed schedule gave him three weeks of parenting time each month during the summer months of June, July, and August. The district court found that appellant’s “proposed schedule is a substantial modification from the school year schedule, such that [appellant]’s home would be the primary residence during the summer.” The district court relied on the original judgment, which designated respondent’s home as the children’s primary residence, and found that the circumstances did not support changing the primary residence of the children. The district court denied appellant’s proposed schedule and granted respondent’s proposed schedule.
This court recently held that “primary residence” means “the principal dwelling or place where the child lives” and that a district court’s modification of parenting time that significantly increases a party’s parenting time over summer break does not change the child’s primary residence. Suleski v. Rupe, 855 N.W.2d 330, 335 (Minn. App. 2014). Here, the district court did not have the benefit of the Suleski decision because Suleski was published after the district court characterized appellant’s proposed summer schedule as a change in primary residence for the children. But in light of the ruling in Suleski, we conclude that the district court erred in finding that a significant proposed change in parenting time for the summer months would equate to a change in the children’s primary
Appellant also argues that the district court erred by granting respondent three weeks of summer vacation parenting time because the district court indicated during the November 19 hearing that it did not intend to include the three weeks in the order. The district court ordered that the summer parenting-time schedule include a provision that appellant’s “parenting time could be extended one time each month in the months of June, July, and August from his regularly scheduled weekend to the following Friday at 5:00 p.m.” and that respondent “shall have three non-consecutive weeks of vacation during the summer.” Because it appears that the provision for three weeks of vacation parenting time merely allows respondent to exercise the notice provision in the order and to select her preferred vacation parenting-time weeks, we conclude that the inclusion of this provision is not error.
C. Best-Interests Factors
Appellant argues that the district court did not consider the best-interests factors in
the aggregate when determining the parenting-time schedule. Minnesota law provides
that the district court is to “grant such parenting time . . . as will enable the child and the
parent to maintain a child to parent relationship that will be in the best interests of the
child.”
The district court stated that a consistent and predictable schedule is in the best interests of the children. The district court also stated that its decision was, in part, based on ensuring that the children do not have to endure long commutes before school on Monday mornings and that the parenting time not interfere with the children’s ability to attend school. The district court expressed that its goal was for the children to maintain contact with both parents and recognized that it is in the children’s best interests to establish a holiday schedule that maximizes each parent’s access to the children. While the district court considered the children’s best interests, it did not make sufficient findings for meaningful appellate review.
D. Restriction on Parenting Time
Appellant argues that the district court failed to consider the parties’ previous
agreement that they would work toward a 50/50 parenting-time schedule and that this
constitutes a restriction of his parenting time under
The original judgment granted appellant 10-25% parenting time, including, at a minimum, one overnight each weekend and four two-hour visits during the week. On June 14, 2012, the parties stipulated to amend the original judgment. The stipulation changed appellant’s parenting time to two overnights every other weekend and one mid-week, three-hour visit, but it did not significantly change appellant’s parenting-time percentage. The stipulation also stated, “This schedule shall be reviewed upon completion of [appellant’s] Veterinary Medicine Degree with the parties’ anticipation of establishing a 50/50 parenting schedule.”
Appellant asserts that the district court abused its discretion in restricting his
parenting time because it did not make the requisite findings under
IV.
Appellant argues that the district court abused its discretion by modifying child support. The district court ordered that appellant’s child-support obligation be $1,027 per month and respondent’s share of the children’s health and dental coverage be $44 per month, leaving appellant with a net child-support obligation of $983 per month. Appellant argues that the district court (1) failed to consider respondent’s most recent earnings in calculating her imputed income, (2) failed to consider respondent’s financial support from her significant other in determining respondent’s income, and (3) failed to consider and grant appellant’s request for a deviation from the child-support guidelines. The district court has broad discretion to modify child-support orders. Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). We will reverse a district court’s child-support order only if “the district court abused its broad discretion by reaching a clearly erroneous conclusion that is against logic and the facts on record.” Id.
A. Imputing Income to Respondent
The district court found that respondent is voluntarily unemployed. After a finding that a parent is voluntarily unemployed, the district court must calculate the parent’s child-support obligation based on a determination of potential income, using one
Respondent has been unemployed since March 2010, when she was laid off from her job. Appellant argues that respondent’s paystub from 2009 and the Department of Employment and Economic Development (DEED) wage summary indicate that she is capable of earning a gross annual income of at least $40,000 per year or $3,333 per month. Respondent’s paystub indicates that in December 2009 her gross salary per pay period amounted to approximately $35,000 annualized. Respondent stated in her affidavit to the district court that the most she has ever earned in a year was $28,939 in 2009 and that she has never had an earning capacity of $40,000, as suggested by appellant. Respondent provided the district court with a list of potential jobs for which she qualified, and each job had annual wages of $20,000 to $28,000.
Based on a review of the record, we conclude that the district court considered
respondent’s most recent earnings when determining her potential income. The district
court stated that “[b]ased on [respondent’s] prior employment history, the Court finds
that [respondent] could earn approximately $30,000 per year or $2,500 gross income per
month.” The record demonstrates that the district court properly based its potential-income determination on respondent’s “probable earnings level based on employment
potential, recent work history, and occupational qualifications in light of prevailing job
opportunities and earnings levels in the community.”
B. Respondent’s Financial Support from Significant Other as Income
Appellant argues that the district court erred by failing to consider the financial support that respondent receives from her significant other, G.B. In her answers to interrogatories, respondent stated that she “also receives financial support from [G.B.], with whom Respondent is involved in a committed relationship, and who is the father of Respondent’s non-joint child.” Respondent also stated, “[G.B.] contributes to most of my living expenses.” At the September 4 hearing, the district court stated that it would not consider G.B.’s contributions to respondent’s expenses until it had the financial information regarding appellant’s wife’s contributions to his expenses.
Appellant argues that G.B.’s support should be considered “gifts” for the purpose of calculating respondent’s gross income. “A 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.” Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (Minn. Sept. 28, 2005). But whether a source of funds is income for child-support purposes is a question of law, which we review de novo. Sherburne Cnty. Soc. Servs. ex. rel. Schafer v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992).
“A valid gift requires: 1) donative intent; 2) delivery; and 3) absolute disposition of the property.” Barnier v. Wells, 476 N.W.2d 795, 797 (Minn. App. 1991). In Barnier, this court concluded that regular gifts received by the appellant from his father and his
Here, the record does not indicate the regularity of G.B.’s contributions to respondent or whether G.B.’s contributions meet the elements of a “gift.” We conclude that G.B.’s contributions to respondent’s living expenses are not income for child-support purposes and that the district court did not clearly err in determining respondent’s income for purposes of calculating child support.
C. Deviation from Guidelines
Appellant argues that the district court abused its discretion by denying appellant’s request for a deviation from the child-support guidelines.
In the exercise of its discretion, the district court may depart from the guidelines in appropriate cases based on the unavailability of money included in gross income, or based on other facts or considerations that suggest that the guidelines do not accurately represent the amount of the child-support obligation for which a parent should be responsible.
Haefele v. Haefele, 837 N.W.2d 703, 714 (Minn. 2013) (citing
[T]he court must take into consideration the following factors . . . in determining whether to deviate upward or downward from the presumptive child support obligation: (1) all earnings, income, circumstances, and resources of each parent . . . ; (2) the extraordinary financial needs and resources, physical and emotional condition, and educational needs of the child to be supported; (3) the standard of living the child would enjoy if the parents were currently living together, but recognizing that the parents now have separate households; (4) whether the child resides in a foreign country for more than one year that has a substantially higher or lower cost of living than this country; (5) which parent receives the income taxation dependency exemption and the financial benefit the parent receives from it; (6) the parents’ debts . . . ; and (7) the obligor’s total payments for court-ordered child support exceed the limitations set forth in section 571.922.
The district court stated at the September 4 hearing that it could not deviate “unless I have a complete picture of both parties’ income.” Appellant did not submit any additional financial information, and the district court found that the evidence was insufficient to justify a downward deviation from the child-support guidelines. “This court will not engage in speculation and [appellant] will not be heard to complain when he has failed to provide this court with a reviewable record.” Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985).
We note that the district court advised the parties to make any additional submissions relating to their family income and expenses by September 11, 2013, and neither party provided additional submissions. We conclude that the district court did not
Affirmed in part, reversed in part, and remanded.