Dan O'Connell, Robert L. Richert, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, St. Paul, MN 55101 (for Appellant)

Mark Labine, Mark Labine & Associates P.A., Suite 204, Evenson Building, 2239 Carter Avenue, St. Paul, MN 55108 (for Respondent)

Considered and decided by Lansing, Presiding Judge, Peterson, Judge, and Mansur, Judge.[*]

This is an appeal from a district court order modifying child support. We hold that the district court's findings do not support its denial of the motion to increase child support or its grant of the motion to reduce child support, and we reverse and remand.

Hoffman moved to Texas in March 1996. She did not seek court approval or Troupe's approval before moving. Hoffman later amended her pending motion for increased child support to include a request for court approval of the move. Troupe responded with a motion to increase his visitation and reduce child support because of increased visitation costs.

The district court denied Hoffman's motion to increase support and granted Troupe's motion to increase his visitation to sixty days during the summer in Washington, one week during either Christmas or spring break, and additional visits in Texas with twenty-four-hour notice. The district court modified support by suspending support payments during the sixty-day summer visitation.

The district court's computation of net income lacks a basis in fact in three parts of the calculation. First, there is no evidentiary basis for the court's use of single withholding status to determine Troupe's net income. The record shows that Troupe, who has remarried, filed a joint 1995 tax return with his spouse. The district court's reliance on the single-person tax rate resulted in an excessive allowance for federal income tax. Second, the district court allowed a depreciation deduction in arriving at Troupe's income from rental property, reasoning that the depreciation deductions "reflect the diminution in value to which rental property is peculiarly susceptible." The record shows, however, that Troupe's rental property significantly increased in value. The district court must determine if Troupe's depreciation deductions are valid and not primarily for the purpose of sheltering income. See Pruessner v. Timmer, 414 N.W.2d 577, 579 (Minn. App. 1987). Finally, the district court failed to make a finding on whether Troupe's voluntary ten percent contribution to his employer's 401K plan, added to his employer's seven percent contribution, was a reasonable pension deduction. Minn. Stat. § 518.551, subd. 5(b); see also Mueller v. Mueller, 419 N.W.2d 845, 847 (Minn. App. 1988) (remanding IRA deduction and employer pension when no finding of reasonableness). The finding on net income is inadequately supported by the record.

The findings underlying the court's reduction of child support are also deficient. The district court may adjust child support to spread increased costs of visitation equitably, but shifting costs is equivalent to a modification of child support and must be supported by findings that would justify modification under Minn. Stat. § 518.64, subd. 2 (1996). Kellen v. Kellen, 367 N.W.2d 648, 651 (Minn. App. 1985) (applying Auge v. Auge, 334 N.W.2d 393 (Minn. 1983)). Cost-shifting that results in a deviation from the guidelines must be supported by specific findings. Minn. Stat. § 518.551, subd. 5(i) (1996) (guidelines presumptively apply whether establishing or modifying support); Moylan, 384 N.W.2d at 864 (any deviation from guidelines must be supported by requisite statutory findings).

The district court's reliance on Hoffman's failure to obtain permission for moving the children to Texas does not provide a basis for a downward deviation. See Minn. Stat. § 518.551, subd. 5(c); see also Horner v. Horner, 363 N.W.2d 340, 341 (Minn. App. 1985) (state's policy is not to consider fault in dissolution). The district court found that Troupe will have additional visitation expenses, but did not indicate the type or amount of those additional expenses or how they would justify a downward deviation. The record contains Troupe's estimate of expenses, but this estimate is based on many of the same expenses that Troupe has always incurred as a result of the separation between his residence and the children's. Under Kellen, when the moving party cannot establish the connection between removal and increased visitation expenses, a shift in visitation costs is error. Kellen, 367 N.W.2d at 651. The court must provide additional findings to justify a suspension of support payments during the children's summer visitation.

Reversed and remanded.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.