HF 2889

1st Engrossment - 89th Legislature (2015 - 2016) Posted on 05/24/2016 08:22am

A bill for an act
relating to family law; modifying the parenting expense adjustment for purposes
of child support; modifying guidelines for computing of child support; amending
Minnesota Statutes 2014, sections 518.175, subdivision 5; 518A.34; 518A.36;
Minnesota Statutes 2015 Supplement, sections 518A.26, subdivision 14;
518A.39, subdivision 2.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2014, section 518.175, subdivision 5, is amended to read:

Subd. 5.

Modification of parenting plan or order for parenting time.

(a) new text begin If
a parenting plan or an order granting parenting time cannot be used to determine the
number of overnights or overnight equivalents the child has with each parent, the court
shall modify the parenting plan or order granting parenting time so that the number of
overnights or overnight equivalents the child has with each parent can be determined. For
purposes of this section, "overnight equivalents" has the meaning provided in section
518A.36, subdivision 1.
new text end

new text begin (b) new text end If modification would serve the best interests of the child, the court shall modify
the decision-making provisions of a parenting plan or an order granting or denying
parenting time, if the modification would not change the child's primary residence.
Consideration of a child's best interest includes a child's changing developmental needs.

deleted text begin (b) deleted text end new text begin (c) new text end Except as provided in section 631.52, the court may not restrict parenting
time unless it finds that:

(1) parenting time is likely to endanger the child's physical or emotional health or
impair the child's emotional development; or

(2) the parent has chronically and unreasonably failed to comply with court-ordered
parenting time.

A modification of parenting time which increases a parent's percentage of parenting time
to an amount that is between 45.1 to 54.9 percent parenting time is not a restriction of
the other parent's parenting time.

deleted text begin (c) deleted text end new text begin (d) new text end If a parent makes specific allegations that parenting time by the other
parent places the parent or child in danger of harm, the court shall hold a hearing at
the earliest possible time to determine the need to modify the order granting parenting
time. Consistent with subdivision 1a, the court may require a third party, including the
local social services agency, to supervise the parenting time or may restrict a parent's
parenting time if necessary to protect the other parent or child from harm. If there is an
existing order for protection governing the parties, the court shall consider the use of an
independent, neutral exchange location for parenting time.

Sec. 2.

Minnesota Statutes 2015 Supplement, section 518A.26, subdivision 14, is
amended to read:

Subd. 14.

Obligor.

"Obligor" means a person obligated to pay maintenance or
support. For purposes of ordering medical support under section 518A.41, a parent who
has primary physical custody of a child may be an obligor subject to a payment agreement
under section 518A.69. new text begin If a parent has more than 55 percent court-ordered parenting
time, it is a rebuttable presumption that the parent shall have a zero dollar basic support
obligation. A party or public authority seeking to overcome this presumption must show,
and the court must consider, the following:
new text end

new text begin (1) a significant income disparity, which may include potential income determined
under section 518A.32;
new text end

new text begin (2) the benefit and detriment to the child and the ability of each parent to meet
the needs of the child; and
new text end

new text begin (3) whether the application of the presumption would have an unjust or inappropriate
result.
new text end

new text begin The presumption of a zero dollar basic support obligation does not eliminate that parent's
obligation to pay child support arrears pursuant to section 518A.60.
new text end

Sec. 3.

Minnesota Statutes 2014, section 518A.34, is amended to read:

518A.34 COMPUTATION OF CHILD SUPPORT OBLIGATIONS.

(a) To determine the presumptive child support obligation of a parent, the court shall
follow the procedure set forth in this section.

(b) To determine the obligor's basic support obligation, the court shall:

(1) determine the gross income of each parent under section 518A.29;

(2) calculate the parental income for determining child support (PICS) of each
parent, by subtracting from the gross income the credit, if any, for each parent's nonjoint
children under section 518A.33;

(3) determine the percentage contribution of each parent to the combined PICS by
dividing the combined PICS into each parent's PICS;

(4) determine the combined basic support obligation by application of the guidelines
in section 518A.35;

(5) determine deleted text begin the obligor's deleted text end new text begin each parent's new text end share of the new text begin combined new text end basic support
obligation by multiplying the percentage figure from clause (3) by the combined basic
support obligation in clause (4); and

(6) deleted text begin determine the parenting expense adjustment, if any, as deleted text end new text begin apply the parenting
expense adjustment formula new text end provided in section 518A.36 deleted text begin , and adjust the obligor's basic
support obligation accordingly deleted text end new text begin to determine the obligor's basic support obligation new text end . deleted text begin If the
parenting time of the parties is presumed equal, section 518A.36, subdivision 3, applies
to the calculation of the basic support obligation and a determination of which parent
is the obligor.
deleted text end

(c) new text begin If the parents have split custody of the joint children, child support shall be
calculated for each joint child as follows:
new text end

new text begin (1) the court shall determine each parent's basic support obligation pursuant to
paragraph (b) and shall include the amount of each parent's obligation in the court order. If
the basic support calculation results in each parent owing support to the other, the court
shall offset the higher basic support obligation with the lower basic support obligation
to determine the amount to be paid by the parent with the higher obligation to the parent
with the lower obligation. For the purpose of the cost-of-living adjustment required under
section 518A.75, the adjustment must be based on each parent's basic support obligation
prior to offset. For the purposes of this paragraph, "split custody" means that there are
two or more joint children and each parent has at least one joint child more than 50
percent of the time;
new text end

new text begin (2) if each parent pays all child care expenses for at least one joint child, the court
shall calculate child care support for each joint child as provided in section 518A.40. The
court shall determine each parent's child care support obligation and include the amount of
each parent's obligation in the court order. If the child care support calculation results in
each parent owing support to the other, the court shall offset the higher child care support
obligation with the lower child care support obligation to determine the amount to be paid
by the parent with the higher obligation to the parent with the lower obligation; and
new text end

new text begin (3) if each parent pays all medical or dental insurance expenses for at least one
joint child, medical support shall be calculated for each joint child as provided in section
518A.41. The court shall determine each parent's medical support obligation and include
the amount of each parent's obligation in the court order. If the medical support calculation
results in each parent owing support to the other, the court shall offset the higher medical
support obligation with the lower medical support obligation to determine the amount to
be paid by the parent with the higher obligation to the parent with the lower obligation.
Unreimbursed and uninsured medical expenses are not included in the presumptive amount
of support owed by a parent and are calculated and collected as provided in section 518A.41.
new text end

new text begin (d) new text end The court shall determine the child care support obligation for the obligor
as provided in section 518A.40.

deleted text begin (d) deleted text end new text begin (e) new text end The court shall determine the medical support obligation for each parent as
provided in section 518A.41. Unreimbursed and uninsured medical expenses are not
included in the presumptive amount of support owed by a parent and are calculated and
collected as described in section 518A.41.

deleted text begin (e) deleted text end new text begin (f) new text end The court shall determine each parent's total child support obligation by
adding together each parent's basic support, child care support, and health care coverage
obligations as provided in this section.

deleted text begin (f) deleted text end new text begin (g) new text end If Social Security benefits or veterans' benefits are received by one parent as a
representative payee for a joint child based on the other parent's eligibility, the court shall
subtract the amount of benefits from the other parent's net child support obligation, if any.

deleted text begin (g) deleted text end new text begin (h) new text end The final child support order shall separately designate the amount owed for
basic support, child care support, and medical support. If applicable, the court shall use
the self-support adjustment and minimum support adjustment under section 518A.42 to
determine the obligor's child support obligation.

Sec. 4.

Minnesota Statutes 2014, section 518A.36, is amended to read:

518A.36 PARENTING EXPENSE ADJUSTMENT.

Subdivision 1.

General.

(a) The parenting expense adjustment under this section
reflects the presumption that while exercising parenting time, a parent is responsible
for and incurs costs of caring for the child, including, but not limited to, food, new text begin clothing,
new text end transportation, recreation, and household expenses. Every child support order shall specify
the percentage of parenting time granted to or presumed for each parent. For purposes
of this section, the percentage of parenting time means the percentage of time a child is
scheduled to spend with the parent during a calendar year according to a court order
new text begin averaged over a two-year period new text end . Parenting time includes time with the child whether it is
designated as visitation, physical custody, or parenting time. The percentage of parenting
time may be determined by calculating the number of overnights new text begin or overnight equivalents new text end
that a deleted text begin child deleted text end new text begin parent new text end spends with a deleted text begin parent, or deleted text end new text begin child pursuant to a court order. For purposes of
this section, overnight equivalents are calculated new text end by using a method other than overnights
if the parent has significant time periods on separate days where the child is in the parent's
physical custody and under the direct care of the parent but does not stay overnight. The
court may consider the age of the child in determining whether a child is with a parent
for a significant period of time.

(b) If there is not a court order awarding parenting time, the court shall determine
the child support award without consideration of the parenting expense adjustment. If a
parenting time order is subsequently issued or is issued in the same proceeding, then the
child support order shall include application of the parenting expense adjustment.

Subd. 2.

Calculation of parenting expense adjustment.

new text begin (a) For the purposes of
this section, the following terms have the meanings given:
new text end

new text begin (1) "parent A" means the parent with whom the child or children will spend the least
number of overnights under the court order; and
new text end

new text begin (2) "parent B" means the parent with whom the child or children will spend the
greatest number of overnights under the court order.
new text end

new text begin (b) new text end deleted text begin The obligor is entitled to a parenting expense adjustment calculated as provided
in this subdivision. The court shall: deleted text end new text begin The court shall apply the following formula to
determine which parent is the obligor and calculate the basic support obligation:
new text end

deleted text begin (1) find the adjustment percentage corresponding to the percentage of parenting
time allowed to the obligor below:
deleted text end

	deleted text begin Percentage Range of Parenting Time deleted text end	deleted text begin Adjustment Percentage deleted text end
deleted text begin (i) deleted text end	deleted text begin less than 10 percent deleted text end	deleted text begin no adjustment deleted text end
deleted text begin (ii) deleted text end	deleted text begin 10 percent to 45 percent deleted text end	deleted text begin 12 percent deleted text end
deleted text begin (iii) deleted text end	deleted text begin 45.1 percent to 50 percent deleted text end	deleted text begin presume parenting time is equal deleted text end

deleted text begin (2) multiply the adjustment percentage by the obligor's basic child support obligation
to arrive at the parenting expense adjustment; and
deleted text end

deleted text begin (3) subtract the parenting expense adjustment from the obligor's basic child support
obligation. The result is the obligor's basic support obligation after parenting expense
adjustment.
deleted text end

new text begin (1) raise to the power of three the approximate number of annual overnights the child
or children will likely spend with parent A;
new text end

new text begin (2) raise to the power of three the approximate number of annual overnights the child
or children will likely spend with parent B;
new text end

new text begin (3) multiply the result of clause (1) times parent B's share of the combined basic
support obligation as determined in section 518A.34, paragraph (b), clause (5);
new text end

new text begin (4) multiply the result of clause (2) times parent A's share of the combined basic
support obligation as determined in section 518A.34, paragraph (b), clause (5);
new text end

new text begin (5) subtract the result of clause (4) from the result of clause (3); and
new text end

new text begin (6) divide the result of clause (5) by the sum of clauses (1) and (2).
new text end

new text begin (c) If the result is a negative number, parent A is the obligor, the negative number
becomes its positive equivalent, and the result is the basic support obligation. If the result
is a positive number, parent B is the obligor and the result is the basic support obligation.
new text end

Subd. 3.

Calculation of basic support when parenting time deleted text begin presumed deleted text end new text begin is new text end equal.

deleted text begin (a) deleted text end If the parenting time is equal and the parental incomes for determining child support of
the parents also are equal, no basic support shall be paid unless the court determines that
the expenses for the child are not equally shared.

deleted text begin (b) If the parenting time is equal but the parents' parental incomes for determining
child support are not equal, the parent having the greater parental income for determining
child support shall be obligated for basic child support, calculated as follows:
deleted text end

deleted text begin (1) multiply the combined basic support calculated under section 518A.34 by 0.75;
deleted text end

deleted text begin (2) prorate the amount under clause (1) between the parents based on each parent's
proportionate share of the combined PICS; and
deleted text end

deleted text begin (3) subtract the lower amount from the higher amount.
deleted text end

deleted text begin The resulting figure is the obligation after parenting expense adjustment for the
parent with the greater parental income for determining child support.
deleted text end

Sec. 5.

Minnesota Statutes 2015 Supplement, section 518A.39, subdivision 2, is
amended to read:

Subd. 2.

Modification.

(a) The terms of an order respecting maintenance or support
may be modified upon a showing of one or more of the following, any of which makes
the terms unreasonable and unfair: (1) substantially increased or decreased gross income
of an obligor or obligee; (2) substantially increased or decreased need of an obligor or
obligee or the child or children that are the subject of these proceedings; (3) receipt of
assistance under the AFDC program formerly codified under sections 256.72 to 256.87
or 256B.01 to 256B.40, or chapter 256J or 256K; (4) a change in the cost of living for
either party as measured by the Federal Bureau of Labor Statistics; (5) extraordinary
medical expenses of the child not provided for under section 518A.41; (6) a change in
the availability of appropriate health care coverage or a substantial increase or decrease
in health care coverage costs; (7) the addition of work-related or education-related child
care expenses of the obligee or a substantial increase or decrease in existing work-related
or education-related child care expenses; or (8) upon the emancipation of the child, as
provided in subdivision 5.

(b) It is presumed that there has been a substantial change in circumstances under
paragraph (a) and the terms of a current support order shall be rebuttably presumed to be
unreasonable and unfair if:

(1) the application of the child support guidelines in section 518A.35, to the current
circumstances of the parties results in a calculated court order that is at least 20 percent
and at least $75 per month higher or lower than the current support order or, if the current
support order is less than $75, it results in a calculated court order that is at least 20
percent per month higher or lower;

(2) the medical support provisions of the order established under section 518A.41
are not enforceable by the public authority or the obligee;

(3) health coverage ordered under section 518A.41 is not available to the child for
whom the order is established by the parent ordered to provide;

(4) the existing support obligation is in the form of a statement of percentage and not
a specific dollar amount;

(5) the gross income of an obligor or obligee has decreased by at least 20 percent
through no fault or choice of the party; or

(6) a deviation was granted based on the factor in section 518A.43, subdivision 1,
clause (4), and the child no longer resides in a foreign country or the factor is otherwise no
longer applicable.

(c) A child support order is not presumptively modifiable solely because an obligor
or obligee becomes responsible for the support of an additional nonjoint child, which is
born after an existing order. Section 518A.33 shall be considered if other grounds are
alleged which allow a modification of support.

(d) new text begin If child support was established by applying a parenting expense adjustment
or presumed equal parenting time calculation under previously existing child support
guidelines and there is no parenting plan or order from which overnights or overnight
equivalents can be determined, there is a rebuttable presumption that the established
adjustment or calculation shall continue after modification so long as the modification is
not based on a change in parenting time. In determining an obligation under previously
existing child support guidelines, it is presumed that the court shall:
new text end

new text begin (1) if a 12 percent parenting expense adjustment was applied, multiply the obligor's
share of the combined basic support obligation calculated under section 518A.34,
paragraph (b), clause (5), by .88; or
new text end

new text begin (2) if the parenting time was presumed equal but the parents' parental incomes for
determining child support were not equal:
new text end

new text begin (i) multiply the combined basic support obligation under section 518A.34, paragraph
(b), clause (5), by .075;
new text end

new text begin (ii) prorate the amount under item (i) between the parents based on each parent's
proportionate share of the combined PICS; and
new text end

new text begin (iii) subtract the lower amount from the higher amount.
new text end

new text begin (e) new text end On a motion for modification of maintenance, including a motion for the
extension of the duration of a maintenance award, the court shall apply, in addition to all
other relevant factors, the factors for an award of maintenance under section 518.552 that
exist at the time of the motion. On a motion for modification of support, the court:

(1) shall apply section 518A.35, and shall not consider the financial circumstances of
each party's spouse, if any; and

(2) shall not consider compensation received by a party for employment in excess of
a 40-hour work week, provided that the party demonstrates, and the court finds, that:

(i) the excess employment began after entry of the existing support order;

(ii) the excess employment is voluntary and not a condition of employment;

(iii) the excess employment is in the nature of additional, part-time employment, or
overtime employment compensable by the hour or fractions of an hour;

(iv) the party's compensation structure has not been changed for the purpose of
affecting a support or maintenance obligation;

(v) in the case of an obligor, current child support payments are at least equal to the
guidelines amount based on income not excluded under this clause; and

(vi) in the case of an obligor who is in arrears in child support payments to the
obligee, any net income from excess employment must be used to pay the arrearages
until the arrearages are paid in full.

deleted text begin (e) deleted text end new text begin (f) new text end A modification of support or maintenance, including interest that accrued
pursuant to section 548.091, may be made retroactive only with respect to any period
during which the petitioning party has pending a motion for modification but only from
the date of service of notice of the motion on the responding party and on the public
authority if public assistance is being furnished or the county attorney is the attorney of
record, unless the court adopts an alternative effective date under paragraph (l). The
court's adoption of an alternative effective date under paragraph (l) shall not be considered
a retroactive modification of maintenance or support.

deleted text begin (f) deleted text end new text begin (g) new text end Except for an award of the right of occupancy of the homestead, provided
in section 518.63, all divisions of real and personal property provided by section 518.58
shall be final, and may be revoked or modified only where the court finds the existence
of conditions that justify reopening a judgment under the laws of this state, including
motions under section 518.145, subdivision 2. The court may impose a lien or charge on
the divided property at any time while the property, or subsequently acquired property, is
owned by the parties or either of them, for the payment of maintenance or support money,
or may sequester the property as is provided by section 518A.71.

deleted text begin (g) deleted text end new text begin (h) new text end The court need not hold an evidentiary hearing on a motion for modification
of maintenance or support.

deleted text begin (h) deleted text end new text begin (i) new text end Sections 518.14 and 518A.735 shall govern the award of attorney fees for
motions brought under this subdivision.

deleted text begin (i) deleted text end new text begin (j) new text end Except as expressly provided, an enactment, amendment, or repeal of law does
not constitute a substantial change in the circumstances for purposes of modifying a
child support order.

deleted text begin (j) MS 2006 [Expired]
deleted text end

(k) On the first modification deleted text begin under the income shares method of calculation deleted text end new text begin
following implementation of amended child support guidelines new text end , the modification of basic
support may be limited if the amount of the full variance would create hardship for either
the obligor or the obligee.

(l) The court may select an alternative effective date for a maintenance or support
order if the parties enter into a binding agreement for an alternative effective date.

Sec. 6. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 5 are effective August 1, 2017.
new text end