Marriage of Mentzos v. Mentzos

353 N.W.2d 683, 1984 Minn. App. LEXIS 3457

• Court: Court of Appeals of Minnesota
• Decided: August 28, 1984
• Docket: C4-83-1859
• Status: Published

Opinions

OPINION

PARKER, Presiding Judge.

This is an appeal from a dissolution judgment which awarded respondent/wife title to the homestead, subject to a lien in favor of appellant/husband, which ordered appellant to pay child support, and which provided that child support arrearages would become a charge against appellant’s homestead lien. We remand for additional findings.

FACTS

The parties were married in 1968 and were divorced in September 1983. They have three minor children. The youngest child is 11 years old. The wife has a net income of approximately $800 per month. She was the primary support for the family throughout the marriage. The husband is an unemployed musician and was rarely employed during the marriage.

The parties purchased a home for $20,-000 in 1972 on a government subsidy program. Evidence at trial showed it was appraised at $56,166, and $16,488 remained due on the mortgage. The trial court awarded respondent title to the home, subject to a lien in favor of appellant in the amount of $19,838 at eight percent interest. The lien is due when the last child reaches 18 years of age, the home is sold, or the wife dies.

The trial court further ordered appellant to pay $200 per month per child support. Any nonpayment shall be deducted from the appellant’s share of the equity in the home. The court did not make a finding as to appellant’s earning ability. There is also no finding by the court or allegation by appellant that he is unable to obtain employment.

ISSUE

Did the trial court abuse its discretion in establishing the amount of child support and authorizing a deduction for any nonpayments against appellant’s lien on the homestead?

DISCUSSION

The trial court has broad discretion in the division of property and child support. Spencer v. Spencer, 304 Minn. 549, 229 N.W.2d 18 (1975). Appellant received one half of the equity in the homestead, reflecting his presumed contribution to the marital property. Minn.Stat. § 518.58 (1982).

Minnesota Statutes § 518.551(5) (Supp.1983) established child support guidelines which were effective August 1, 1983, and are applicable to any decree issued after that date. Halper v. Halper, 348 N.W.2d 360, 362 (Minn.Ct.App.1984).

The guidelines are incorporated for use in all child support cases in Minn.Stat. § 518.17(5) (Supp.1983). This statute requires that the court set child support at an amount not less than the guidelines set for public assistance cases unless the court makes express findings of fact. By incorporating the financial guidelines, the statute also adopts the subdivisions governing their use. Section 518.551(5)(e) specifically requires findings to justify an upward departure from the guidelines, as well as a downward departure. Johnson v. Johnson, — N.W.2d -, - No. C5-83-1773, slip op. at 4 (Minn.Ct.App. August 14, 1984).

According to the support guidelines, $200 per month for each of three children requires a net income of at least $1800 per month. The trial court did not specifically find that appellant had the earning ability to meet that figure. The findings show that appellant’s actual net income during the marriage was minimal and often nonexistent. While it appears that there are no impediments to appellant’s earning a sufficient income to provide support for his children, we are reluctant to impose such a substantial burden without an express finding that he is able to pay that amount. The statute mandates such findings, and we are constrained to follow.

DECISION

Remand for further findings.