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In re Custody of A.B.T.

Court of Appeals of Minnesota

September 3, 2013

In re the Custody of: A. B. T.
v.
Rachael A. Lauby, Appellant. Peter N. Tapper, petitioner, Respondent,

UNPUBLISHED OPINION

Dakota County District Court File No. 19AV-FA-11-2238

Lindsey J. Andersen, Minneapolis, Minnesota (for respondent)

Michael W. McNabb, Burnsville, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Kalitowski, Judge; and Cleary, Judge.

HOOTEN, Judge

In this child-support dispute, appellant-mother argues that the district court abused its discretion by imputing income to her and by applying an alternative method to calculate parenting time for purposes of the parenting-expense adjustment. We affirm.

FACTS

Appellant Rachael Lauby and respondent Peter Tapper are the parents of A.B.T., who was born on July 6, 2009. Appellant has another child, a son, who was born in 2002 and resides primarily with appellant. Respondent also has another child, a son, who was born in 2012 and resides with respondent, his wife, and his wife's minor son from another relationship.

Appellant has worked as a hair stylist at a salon in Edina since November 2000. After the birth of her son in 2002, appellant worked at the salon 33 hours per week. Respondent has worked 40–45 hours per week as a manager at a coffee shop in Minneapolis. Before January 2011, respondent's mother provided child care for A.B.T. during the week at no charge. In January 2011, appellant decided to enroll A.B.T. in daycare during times that included respondent's then-agreed-upon parenting time. Appellant has paid all daycare costs since enrolling A.B.T.

Respondent commenced this action to establish custody, child support, and parenting time in July 2011. The district court appointed a neutral custody and parenting-time evaluator and scheduled trial for May 2, 2012. On May 2, the parties entered into a stipulation of facts, leaving the financial issues of child support, daycare expenses, and tax exemptions for resolution by the district court.

At trial, the parties admitted exhibits into evidence, discussed calculation of income for determining child support, and disputed how much income appellant received in tips and how the tips should be factored into her gross monthly income. Appellant argued that she qualified as a caretaker for A.B.T. and that therefore the district court should use her 33-hour work schedule in calculating her gross income instead of imputing additional income to her based on a full-time, 40-hour work week. The parties discussed parenting time and agreed that they would follow the parenting-time schedule recommended by the evaluator.

The parties did not agree, however, on how parenting time should be calculated for purposes of parenting-expense adjustments. Rather than calculating the percentage of parenting time based upon overnights, the district court used an alternative method of calculating the percentage of parenting time by simply counting and comparing the number of hours that the child was with each parent. Respondent argued that this alternative calculation method available under Minn. Stat. § 518A.36 (2012) should be used because "it's fair to use the actual time [reflected in the parties' agreed-upon schedule] versus overnights." Appellant countered that the alternative method is not allowed only "when the child has significant time in the parent's physical custody and is under the direct care of the parent". Appellant argues that since the child was not under the "direct care" of respondent when respondent was working, the district court erred in utilizing the alternative method of calculating parenting time and finding that respondent had 45.1 to 50 percent of the parenting time for purposes of the parenting-expense adjustment.

In its order and judgment filed in May 2012, the district court found that appellant's income information was not complete because she was unable to provide any record of her tip income and had not claimed any tip income on her tax returns since 2002. The district court found that appellant has an average gross monthly income of $3, 728, and, noting that her income information as it related to tips was "suspect, " imputed to her a gross monthly income of $4, 660. The district court found that respondent's average gross monthly income is $2, 833, and that the combined parental income for determining child support is $6, 795. The district court found that appellant's percentage of their gross incomes is ...


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