(dissenting).
I fully concur in the majority’s characterization of the Marriage Termination Agreement as an instrument designed to maximize the money available for the support of the parties’ children while minimizing the income tax liability to the family unit, and I concur as well in the majority’s acceptance of the trial court’s conclusion that even though the parties denominated appellant’s payments pursuant to the Agreement as “maintenance,” in actuality the full amount of all payments made on or after January 1, 1988, was intended by both parties to be child support. In the light of the majority's recognition of the actual purpose of the payments required by the Agreement, I am utterly confounded by its disposition of this matter: remanding for termination of “maintenance” rather than effectuating the actual intent of the parties and the order of the trial court.
Certainly, the statutory mandate for the termination of maintenance upon remarriage of the receiving party may not be circumvented by inquiring whether the parties originally intended that the obligation continue beyond remarriage. Gunderson v. Gunderson, 408 N.W.2d 852, 853 (Minn.1987). As we pointed out in Gunderson, if the decree actually does not reflect the intent of the parties, the solution is amendment of the decree. Id. But it appears to me that if the trial court here did not actually amend the original decree, the intention to do so was clearly evinced in its order for an amended decree. In addition to its conclusion of law that respondent’s obligation — which was characterized as maintenance for tax purposes in the original judgment and decree — was actually intended by both parties to provide child support, in its order for amended judgment the trial court denied respondent’s “motion to modify child support” and further provided that respondent should continue to pay “child support” as set forth in paragraphs three and four of the 1984 decree. It may be that the amendment might have been more artfully framed, but it strikes me that the court’s choice of language reflects an attempt to continue the respondent’s child support obligation without altering the tax consequences. If the majority cannot accept the trial court’s order as an amendment of the original decree, it seems to me that it must at least recognize that the trial court has ruled that the parties were agreeing on child support, not on “maintenance” as that term is defined and used in Minn. Stat. ch. 518 and that the purposeful designation of child support as “maintenance” was employed solely to minimize income taxes. That recognition should be attended by remand with directions to amend the original decree to characterize all sums payable on and after January 1, 1988 as child support.
Neither can I agree with the majority’s apparent acceptance of the appellant’s contention that amendment of the 1984 judgment and decree constitutes a change of circumstances which relieves him of his contractual obligation for child support and justifies invoking the support guidelines found at Minn.Stat. § 518.551, subd. 5(a) (1988). Although we have previously noted that a trial court may set child support in excess of the guidelines, experience has demonstrated that child support is set below the guidelines with a fair degree of regularity but is almost never set in excess of the guidelines. Here, the court has expressly found that the child support provisions of the 1984 Agreement are neither unfair nor inequitable and, therefore, there is no basis for ignoring appellant’s contractual obligation and substituting therefor the child support prescribed by the statutory guidelines.
If the amendment of the decree shifts the tax burden from respondent to appellant or creates uncertainty with respect to the tax obligation, it is for the appellant to request further modification of the decree to include express application of section 71 of the Internal Revenue Code, as amended by the Tax Reform Act of 1984, Pub.L. No. 98-369, § 422(e)(1), (e)(2), 98 Stat. 494, 798 (1984), and modification of the formula used to determine the amount of support payments so that respondent receives the same after-tax dollars for the support of the children that she would have received were the pre-1984 tax law applicable. The *180record before us does not disclose any request by appellant for relief from the effect of the tax consequences of amendment of the decree but only relief from his contractual undertaking.
For these reasons, I would affirm the trial court’s amendment of the 1984 decree or, in the alternative, remand solely for amendment of the 1984 decree to substitute the term “child support” for the term “maintenance.”