Pitkin v. Gross

385 N.W.2d 367, 1986 Minn. App. LEXIS 4207
CourtCourt of Appeals of Minnesota
DecidedApril 15, 1986
DocketC5-85-2040
StatusPublished
Cited by15 cases

This text of 385 N.W.2d 367 (Pitkin v. Gross) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pitkin v. Gross, 385 N.W.2d 367, 1986 Minn. App. LEXIS 4207 (Mich. Ct. App. 1986).

Opinions

OPINION

CRIPPEN, Judge.

Deborah Vail Pitkin, plaintiff in this paternity action, appeals from two trial court orders. The first order affirmed the family [368]*368court referee’s denial of her request for an award of attorney's fees, on the grounds that there is no provision in the paternity statutes for an award of attorney’s fees to private counsel. The second order modified the family court referee’s order for permanent child support, reducing the amount of support from $1500 to $900 per month. We reverse and remand.

FACTS

Appellant and respondent lived together for approximately fifteen months before their daughter, Kimberly Jean Gross, was born on September 1, 1984. The parties lived together for about two months after Kimberly’s birth. Appellant then moved into her parents’ home with Kimberly.

The parties attempted to resolve the issues of custody, child support, and attorney’s fees, but were unable to do so. Appellant retained private counsel and brought this action for determination of parentage in March 1985.

The case was heard before a family court referee in June of 1985. The referee approved the parties’ stipulations as to paternity, custody, and visitation. The referee held that there was no statutory authority for an award of attorney’s fees where the plaintiff had retained private counsel. The referee set child support at $1500 per month, the amount provided by the child support guidelines for a net income in excess of $6000.

Respondent sought review of the referee’s order for child support. Appellant subsequently sought review of the referee’s order denying her request for attorney’s fees.

The trial court modified the support order by reducing the monthly payments from $1500 to $900 and affirmed the referee’s holding that there was no authority for an award of attorney’s fees. Appellant challenges both decisions of the trial court.

ISSUES

1.Did the trial court furnish valid reasons for departure below child support guidelines?

2. Did the trial court have authority to award attorney’s fees to appellant?

3. Is appellant entitled to her attorney’s fees for this appeal?

ANALYSIS

1. The statutory child support guidelines apply in parentage actions. Lee v. Ystebo, 353 N.W.2d 264, 265 (Minn.Ct.App.1984). See Minn.Stat. § 518.551, subd. 5 (1984) (guidelines); Minn.Stat. § 257.66, subd. 3 (1984) (determinations under parentage act to be in accordance with marriage dissolution statutes, Minn.Stat. chapter 518).

In the absence of a clear showing that the trial court abused its discretion, a determination of child support will not be reversed. Reck v. Reck, 346 N.W.2d 675, 677 (Minn.Ct.App.1984), pet. for rev. denied, (Minn. Apr. 25, 1984). However, the trial court is prohibited from setting support in an amount less than indicated by statutory guidelines, “unless the court makes express findings of fact as to the reason for the lower order.” Minn.Stat. § 518.17, subd. 5 (1984). See Letourneau v. Letourneau, 350 N.W.2d 476, 478 (Minn.Ct.App.1984).

Respondent’s monthly net income is approximately $12,000. The support guidelines provide that, if the obligor’s monthly income is $6001 or more, the support obligation shall be the same dollar amounts as provided for in the guidelines for an obligor with a monthly income of $6000. Respondent’s support obligation for one child would be 25% of $6000, or $1500 per month. This was the amount of support originally determined by the family court referee.

The trial court, however, departed from the guidelines and reduced the referee’s award to $900 per month. The court gave three reasons for this departure: first, that respondent was already paying support for two other children of a previous marriage; second, that an eleven-month-old child does not need $1500 per month in child support [369]*369no matter what his father earns; and third, that “[t]he courts should not concern themselves with the needs of the mother of an illegitimate child in the same way they would had the mother been married to the father.” The trial court’s departure from the guidelines contradicts the controlling statutes and must be corrected.

(a) The trial court’s first rationale for a $600 departure is that respondent has a previous support obligation. The guidelines provide that “[previous support orders and maintenance orders may be considered if the obligor is paying them.” Minn.Stat. § 518.551, subd. 5(c) (1984). We have held that the trial court acted within its discretion when it evidently referred to the guideline figure for the total number of children the obligor was supporting and subtracted the approximate amount of the prior order to determine the new support amount. See Packer v. Holm, 364 N.W.2d 506, 507 (Minn.Ct.App.1985).1

Here, the trial court relied on Packer as authority in support of its departure and used the approach taken by the trial court in that case. Rather than calculating the maximum support for one child, the court calculated the support for three ($2100, 35 percent of $6000), subtracted respondent’s previous support obligation ($1200), and determined that Kimberly was entitled to the remainder. The trial court’s reliance on Packer was inappropriate in the circumstances here.

The trial court may consider previous support awards the obligor is paying. Minn.Stat. § 518.551, subd. 5(c). This consideration, however, is germane only to the obligor’s ability and duty to make payments. Here, the trial court made no findings of fact regarding the obligor’s limited ability to pay, nor is there any evidence in the record that the obligor will be unable to meet his support obligations. To the contrary, the evidence indicates that the obli-gor has income greatly in excess of his previous support obligations and his own reasonable and necessary expenses.

In Packer, the obligor’s resources were at issue. The obligor in that case earned $1350 per month and faced burdensome support obligations. In those circumstances, this court affirmed that the trial court’s apparent decision to consider the percentage of the obligor’s income that would be set aside if all of his children were counted together in applying the guidelines. Packer is not authority permitting the same approach where the obligor’s means are unlimited.

The guideline statutes provide:

Guidelines for support for an obligor with a monthly income of $6001 or more shall be the same dollar amounts as provided for in the guidelines for an obligor with a monthly income of $6000.

Minn.Stat. § 518.551, subd. 5. The trial court concluded that disregard of appellant’s prior support obligation takes improper account of his income in excess of $6000. We disagree. The statute prohibits determining that a percentage of this income be paid as support, but it does not preclude recognition of this income as a resource available for the obligor’s special needs.

(b) The trial court’s second rationale for a $600 departure is that

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Pitkin v. Gross
385 N.W.2d 367 (Court of Appeals of Minnesota, 1986)

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Bluebook (online)
385 N.W.2d 367, 1986 Minn. App. LEXIS 4207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pitkin-v-gross-minnctapp-1986.