I was reviewing a recent Minnesota Court of Appeals decision, Nelson v. Nelson (A22-0077) and, came to the conclusion that the old adage “actions speak louder than words” rings true in most cases…..except when talking about Minnesota child support law.

That adage is ‘flipped’ when applying the reduction in child support obligations for the costs of caring for a child in that parent’s care (this reduction is referred to by statute as the ‘parenting-expense-adjustment’ at Minn. Stat. §518A.36, subd. 1(a)).

Per this recent decision, it’s in fact words that speak louder than action. In creating Minnesota’s child support laws, lawmakers created a formula to reduce a parent’s child support obligation, to account for the costs of caring for a child when a child is in that parent’s care. This reduction is called the ‘parenting-expense-adjustment’. It’s a formula that calculates a reduction in child support, considering the amount of overnights a child spends with each parent, and, reducing child support accordingly.

In 2009, the Minnesota Court of Appeals, in its decision Hesse v Hesse (778 N.W.2d 98 (Minn. Ct. App. 2009) determined that a father who had court-ordered parenting time, but chose not to exercise that time, and wasn’t incurring the costs that the legislature intended to give him credit for, could still benefit from the parenting-expense-adjustment formula, and pay less child support. The father’s decision not to use that time, per the Court, was ‘irrelevant’.

One cannot be blamed for thinking that this decision thwarted the intent behind the law. Nevertheless, the Court of Appeals reasoned that the Minnesota lawmakers, when creating that ‘parenting-expense-adjustment’, determined that it was the ‘court-ordered parenting time’ and not the ‘actual parenting time’ that qualified the parent for a reduction in child support; regardless of whether that parent was using the parenting time or not.

Recently, that holding in Hesse was challenged by a parent who brought up 2016 changes made to the parenting-expense-adjustment. Those changes included language providing that the reduction would be based on: “the approximate number of annual overnights the… children will likely spend with the parent” [Emphasis added].

These changes, including the choice to use words like ‘approximate’ and ‘likely’ gave hope that lawmakers purposefully intended that the court look beyond the wording of the court order, and look at the parent’s actual parenting time spent with the child. This would make sense, as, the intent of the reduction is to capture the actual cost of having a child in that parent’s care. And, like the facts in Hesse, the other parent was not using their court-ordered parenting time, and therefore not incurring a cost.

The Court of Appeals, once again, chose for words over action.

Nelson reiterated that when calculating the parenting-expense-adjustment to a child support order, the courts must use the court-ordered amount of parenting time, not the amounts of parenting time actually being exercised.

While this decision may not align well with public policy, which is to ensure that parents have enough support to appropriately care for their children, the Court did well to adhere to its fundamental principle that “public policy of a state is for the legislature to determine and not the courts.”

It is for another day and another forum to dictate whether public policy will serve the needs of children, but, for now, per the Minnesota Court of Appeals, and the lawmakers of this state, when it comes to child support and parents getting credit for caring for their children, words speak louder than action.

If you have questions related to parenting time and child support, please consult legal counsel. The attorneys at Beyer & Simonson are always willing to discuss your family law matter with you.

Meet Tim Simonson

Tim has been practicing for more than twenty (20) years now, He's handled divorce, child support, child custody, third party and grandparent rights, domestic abuse, parenting time, and many other areas of family law. He always enjoys the chance to meet people and see whether he can help find solutions to their legal problems.

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If you are facing divorce and any of the divorce-related issues such as spousal maintenance, child support, child custody, property division, or domestic abuse matters, you need our experienced Minneapolis divorce attorneys to help you. Contact Beyer & Simonson in Edina, Minnesota today at (952) 303-6007.

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