Marriage of Huston v. Huston

RANDALL, Judge,

dissenting.

I respectfully dissent and would affirm the trial court, both as to child support and attorney fees.

Child support modification

Respondent was paying $300 a month child support and, upon a post decree support modification hearing, the trial court increased child support from $300 to $500 per month. Respondent’s net monthly income, as found by the trial court, and to which the majority agrees, is $1690. Strict guidelines support applied to that figure would result in child support of $591.50 a month. Thus, before this court on review is the question whether or not the trial *349court abused its discretion and should be reversed as a matter of law because the increase respondent is required to pay was $200 a month more, but not $291.50.

Initially the trial court applied the guidelines to a combination of respondent’s monthly net income of $1690 and his second spouse’s monthly net income of $600, and presumed that on a total net take home pay of $2290 a month, the guidelines, if strictly applied, would call for child support of $801 per month. As respondent correctly points out, and as the majority opinion and this dissent agree on, the correct figure to start with is the $1690 that obligor alone takes home.

Respondent claimed approximately $2500 a month in necessary living expenses and argued vigorously that, between his take home pay and that of his second spouse, they were just barely making it, based on the $300 per month child support which he was paying regularly. The trial court cut his claimed necessary monthly expenses sharply from $2500 down to $1900, accepted appellant’s contention that she was entitled to more money, and ordered an increase in child support from $300 to $500 a month. Since we must start from the proposition that guidelines support is only applied to obligor’s net take home pay ($1690 a month), it becomes clear that, between what the court found to be his necessary monthly living expenses and the new figure of $500 a month, his total monthly out-go now for living and child support is approximately $2400 a month. Those figures, by definition, show over 100 percent of respondent and his second spouse’s total net monthly take home will be consumed by necessary living expenses and court ordered child support.

It is impossible for this writer to find that the trial court, acting in good faith and doing the best it could with what money was available, was erroneous in only imposing on respondent an additional $200 a month, and not $291.50. Countless supreme court and court of appeals cases have cited the basic proposition that a trial court’s determination on appropriate child support matters will not be reversed absent a showing of a clear abuse of discretion. The majority acknowledges the correctness of this fundamental proposition of family law.

The majority points out that the trial court did not provide a complete breakdown between respondent’s own personal monthly living expenses and those pertaining to his second family. With the limited amount of money available to respondent, I cannot find that this makes a difference sufficient to justify a reversal and a remand. Even if we assume that the $1900 a month that the. trial court allowed to respondent as necessary monthly living expenses included items for his second family, and that his personal share of that $1900 was hundreds of dollars a month less,1 the fact still remains that the $500 a month child support he is now ordered to pay, coupled with just his home mortgage payment of $1051.06 and his monthly car payment of $185.67 (excluding all consideration for respondent’s necessary outlays for his own food, clothing, car expenses, insurance, medical, and other personal expenses) exceed what he takes home! It is just as likely on remand that the trial court might examine the present level of $500 and find that an equitable figure for child support is less than the $500 a month appellant was granted.

It is not in dispute that the first family of an obligor is primary, when there is more than one, and it is not in dispute that dependents by a second marriage are not factored into the child support guidelines. *350But it is also the law that a trial court can recognize the necessary and reasonable expenses that an obligor incurs by reason of a second family as one factor among several in determining the income an obligor has available when trying to determine an equitable amount for child support. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn.1986); Scearcy v. Mercado, 410 N.W.2d 43 (Minn.Ct.App.1987).

Here the trial court had before it all the evidence pertaining to what obligor made, appellant’s claimed monthly expenses, obli-gor’s claimed monthly expenses, and required a substantial increase from $300 to $500 a month in respondent’s child support. It is true, as the concurrence points out, that the trial court incorrectly felt that appellant would continue to receive both the new amount of court ordered support, plus her prior AFDC grant. However, on remand, elimination from appellant’s income of the prior AFDC grant will do nothing to change the amount of money respondent has available to pay support, which, as this dissent points out, is now set at a figure which, for all practical purposes, will require respondent to use his second spouse’s earnings to stay current.

When the record reflects that the trial court has before it all the evidence the parties choose to present and the trial court makes a conscientious effort to be fair to both sides, we cannot continue as a court of review to retry cases de novo and reverse and remand when the judge’s thinking and reasons approximate, but do not perfectly mirror, our own.

Attorney fees

Appellant also argues that the trial court abused its discretion by not requiring respondent to pay her attorney fees in addition to his own. Again, Minnesota law is replete with cases citing the basic proposition that the award of attorney fees in dissolution cases is a matter resting largely within the discretion of the trial court, and not to be reversed unless it is clear abuse of discretion. Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn.1977); Kirby v. Kirby, 348 N.W.2d 392, 394 (Minn.Ct.App.1984). I find no such abuse.

I dissent and would affirm the trial court on both issues.

. The trial court examined respondent’s evidence where respondent claimed $2500 a month necessary living expenses. The trial court slashed that figure approximately 25 percent down to $1900. Assume that we find the trial court erred in this finding of fact (I see no basis in the record to find such error) and, arguendo, slash respondent’s necessary monthly living expenses another 25 percent down to $1250, or only half of what he claims. That $1250, plus the court ordered child support of $500, comes to $1750, which is still more than respondent takes home. It is difficult to find that either law or equity contemplates sending this case on these facts back to the trial court for the possibility that the trial court will increase respondent’s obligation, from about 105 percent of what he has available to a figure even higher.