In re the Marriage of: Johnay Marie Fanning, n/k/a Johnay Marie Frandsen, petitioner, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0984

In re the Marriage of:
Johnay Marie Fanning, n/k/a Johnay Marie Frandsen, petitioner,
Respondent,

vs.

Quentin Michael Fanning,
Appellant.

Filed August 1, 2022
Affirmed in part, reversed in part, and remanded
Segal, Chief Judge

Hennepin County District Court
File No. 27-FA-19-3631

Kathryn M. Lammers, Heimerl & Lammers, LLC, Minnetonka, Minnesota (for
respondent)

Ryan J. Briese, Kristine J. Zajac, Zajac Law Firm, Minneapolis, Minnesota (for appellant)

Considered and decided by Bratvold, Presiding Judge; Segal, Chief Judge; and
Jesson, Judge.
NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
In this child-support dispute, appellant-father argues that the district court
misapplied Minn. Stat. § 518A.42 (2020) when determining his child-support obligation
and erred in determining respondent-mother’s income based on allegedly material
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misrepresentations by mother about the financial benefit she received from a trust. Because
we conclude that the district court misapplied Minn. Stat. § 518A.42 when it ordered father
to pay the minimum basic child-support amount in subdivision 2(a)(2) of that statute, we
reverse in part and remand. But because we discern no clear error in the district court’s
findings related to whether payments mother received from a trust should be included in
mother’s income for purposes of child support, we affirm on that issue.
FACTS
Appellant-father Quentin Michael Fanning and respondent- mother Johnay Marie
Frandsen were married in December 2005 and have three minor children. In March 2020,
the parties’ marriage was dissolved pursuant to a stipulated judgment and decree that
reserved the issues of custody, parenting time, and child support for future determination.
Following a trial, the district court awarded the parties joint legal and joint physical custody
of the children with equal parenting time. But the district court could not resolve the issue
of child support based on the record provided by the parties. The custody order noted that
the district court “ha[d] significant concerns about the parties’ testimony concerning their
incomes— or their financial positions, generally.” Based on “the parties’ lack of credibility
about their financial positions,” the district court determined that it “lack[ed] a sufficient
factual basis to make meaningful findings on income” and referred the matter to the
expedited process for a decision by a child-support magistrate (CSM) pursuant to Minn. R.
Gen. Prac. 353.02, subd. 2.
In March 2021, the CSM held a hearing. Mother testified that she was employed
by her father’s business, generally worked one day a week, and earned $1,000 per month
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from that employment. She was also a beneficiary, along with others, of a trust established
by her grandfather. B etween 2015 and 2019, mother received amounts from the trust
ranging between $30,000 to $41,000 each year, except in 2017 when she received
approximately $90,000. Additionally, the trust paid for the children’s private school tuition
in 2020. Mother acknowledged, however, that she does not “have any control over the
trustee’s decision making” and had not yet received any disbursements in 2021.
Father was not employed at the time of the hearing. He testified that he had applied
for various jobs and was attending college classes. He also testified that he had suffered a
traumatic brain injury but, when asked if he anticipated the injury would impact his
employment prospects, he stated that he had not “been able to gauge” the impact of the
injury and “without actually being in [his] next career” he could not “clearly answer that.”
In addition, father is also a trustee and one of the beneficiaries of a trust established by his
family, with assets valued at a total of over $4 million. According to an affidavit submitted
by father, he expects to receive “$9,000 per year ongoing” from that trust.
The CSM filed an order establishing child support. The CSM found that mother
earned $1,000 per month from her part-time employment and that she did not provide “any
claim of a disability that would prevent her from working full-time.” The CSM therefore
imputed additional income to mother up to full-time and found her monthly parental
income for determining child support (PICS) to be $2,397. The CSM declined to include
any financial benefit mother received from her family trust in mother’s PICS because the
CSM found the benefit to be “clearly in the nature of a gift.”
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The CSM found that father was not currently employed, but determined that it was
appropriate to impute full-time income to him “at minimum wage,” or $1,747 per month.
The CSM also added $750 to father’s monthly income based on father’s expectation that
he would receive $9,000 per year from his family trust, resulting in a finding that father’s
monthly PICS was $2,497.
The CSM ordered father to pay $75 per month, the basic minimum child-support
amount under Minn. Stat. § 518A.42, subd. 2 (the minimum support amount), and $1,275
in past child support. 1 Father moved the district court to review the CSM’s decision,
arguing that the CSM misapplied Minn. Stat. § 518A.42 when calculating father’s child-
support obligation, and that mother “provided false statements under oath and in discovery
responses regarding the income she has received from her family trust, making the final
determination of her income unreliable.” The district court denied father’s motion for
review and affirmed the decision of the CSM. Father now appeals.
DECISION
I. The district court misapplied Minn. Stat. § 518A.42 when calculating father’s
child-support obligation.

Father argues that the district court misapplied Minn. Stat. § 518A.42 when it
ordered him to pay the minimum support amount under that statute. As set out below, the
parties do not dispute the facts relevant to this issue. Appellate courts review de novo a

1 This total represents 17 months’ worth of past child support based on the support
obligation of $75 per month.
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district court’s construction of a statute. Haefele v. Haefele, 837 N.W.2d 703, 708 (Minn.
2013).
There is “a rebuttable presumption that a child support order should not exceed the
obligor’s ability to pay.” Minn. Stat. § 518A.42, subd. 1(a). An obligor’s “ability to pay”
is calculated under Minn. Stat. § 518A.42. Id. If the obligor’s “income available for support
. . . is equal to or greater than the obligor’s support obligation calculated under
section 518A.34, the court shall order child support under section 518A.34.” Id., subd. 1(b).
But if the obligor’s income available for support “is equal to or less than the minimum support
amount under subdivision 2 or if the obligor’s gross income is less than 120 percent of the
federal poverty guidelines for one person, the minimum support amount under subdivision 2
applies.” Id., subd. 1(d).
The parties here agree that father’s “income available for support ” is $1,209 per
month, and that father is the child-support obligor. The parties also agree that, because the
parties have equal parenting time, father’s child-support obligation as calculated under
Minn. Stat. § 518A.34(b), (f) (2020), would be $15 per month.
Finally, the parties agree that neither of the prerequisites set out in Minn. Stat.
§ 518A.42, subd. 1(d), for applying the minimum support amount are satisfied here:
(1) father’s “income available for support” is neither equal to nor less than the $75
minimum basic support amount in subdivision 2 for three children, and (2) father’s gross
income is not less than 120% of the federal poverty guidelines for one person. Despite
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this, the district court ordered father to pay $75 per month, the minimum support amount
for three joint children as set out in Minn. Stat. § 518A.42, subd. 2(a)(2).2
Father argues that, under the plain language of Minn. Stat. § 518A.42, subd. 1(b),
the district court erred in its conclusion that the minimum support amount applied to him.
Father argues that, instead, because his income available for support is “greater than the
obligor’s support obligation calculated under section 518A.34,” the statute dictates that
“the court shall order child support under section 518A.34,” which in this case is $15 per
month. Minn. Stat. § 518A.42, subd. 1(b) (emphasis added).
If, as appears to be the case here, the district court set father’s support obligation
based on the statute and not on a discretionary deviation from the presumptively
appropriate basic support obligation calculated under the support guidelines, we conclude
that the court misapplied the statute. First, we note that the district court stated in its order
that “the CSM correctly applied the presumptive minimum support order of $75 per
month.” Minn. Stat. § 518A.42, however, does not contain such a presumption. The statute
references two presumptions—that there “is a rebuttable presumption that a child support
order should not exceed the obligor’s ability to pay,” Minn. Stat. § 518A.42, subd. 1(a),
and that “[i]f the court orders the obligor to pay the minimum basic support amount under

2 We note that the CSM and district court applied the 2020 version of the statute, which
provided, in relevant part, that “for three or four children, the obligor’s basic support
obligation is $75 per month.” Minn. Stat. § 518A.42, subd. 2(a)(2). The statute has since
been amended, effective January 1, 2023, in a manner that will change the minimum
support amount for three children but will not alter our analysis of whether the minimum
support amount established in Minn. Stat. § 518A.42, subd. 2(a), applies under the facts of
this case. See 2021 Minn. Laws ch. 30, art. 10, § 69.
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this subdivision, the obligor is presumed unable to pay child care support and medical
support,” Minn. Stat. § 518A.42, subd. 2(b). The statute does not contain a presumption
that the minimum support amount applies in all cases. Indeed, a different statute refers to
the child -support obligation as calculated under Minn. S tat. § 518A.34 (2020) as “the
presumptive child support obligation.” Minn. Stat. § 518A.37, subd. 2 (2020).
Second, the plain language of Minn. Stat. § 518A.42, does not support the outcome
reached by the district court. Subdivision 1(b) of Minn. Stat. § 518A.42 specifies that,
when the obligor’s income for child support equals or exceeds the obligor’s obligation
under Minn. Stat. § 518A.34, as is the case here, “the court shall order child support under
section 518A.34.” Shall is a mandatory term. See Minn. Stat. § 645.44, subd. 16 (2020)
(stating that “‘[s]hall’ is mandatory”); see also DSCC v. Simon, 950 N.W.2d 280, 289
(Minn. 2020) (citing Minn. Stat. § 645.44, subd. 16 (2018) when construing a statute).
Third, subdivision 1(d) of Minn. Stat. § 518A.42 provides criteria—not satisfied
here—specifying when the minimum support amount is to be applied. And subdivision 2
of that section, which sets out the minimum support amounts, is prefaced by the statement
that, “[i]f the basic support amount applies, the court must order” the listed minimum support
amounts. Minn. Stat. § 518A.42 , subd. 2(a). Here, because the criteria for applying the
minimum support amount is not satisfied, the amount is not applicable.
Mother acknowledges that “neither of the triggering events set out in Minn. Stat.
§ 518A.42, subd. 1(d), requiring the minimum support amount . . . is present in this case.”
But she argues that it was still appropriate for the district court to order father to pay $75
per month in child support because “applying Minn. Stat. § 518A.42 in the manner [father]
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advocates would produce absurd results.” Mother posits, for example, that a parent who
has less available income than father could be obligated to pay the minimum support
amount and thereby pay more in child support than father. We acknowledge the logic of
mother’s argument, but this is an issue for the legislature to address, not the courts. See
Leifur v. Leifur, 820 N.W.2d 40, 43 (Minn. App. 2012) (refusing to reach a result consistent
with what this court called “meritorious policy arguments” because doing so would require
this court to “disregard unambiguous statutory language”), rev. dismissed (Minn. Nov. 1,
2012).
Mother also argues that an affirmance is needed “to ensure that [ the] children’s
needs are met. ” A court setting a support obligation has discretion to deviate from the
presumptively appropriate support amount. See, e.g., Minn. Stat. § 518A.43 (2020). But
here, neither the order of the CSM nor the order of the district court contains any indication
that such discretion was exercised. See Minn. Stat. § 518A.37 (2020) (requiring the district
court to make certain findings when exercising such discretion). The CSM’s order simply
states that the $75 support amount “is the statutory minimum support for three joint
children.” The district court’s order references Minn. Stat. § 518A.42, subd. 1(d), and
states that “the CSM correctly applied the presumptive minimum support order of $75 per
month.” Absent more, we must conclude that the order for father to pay the minimum
basic support amount of $75 was based on a misapplication of Minn. Stat. § 518A.42, and
not an exercise of the court’s discretion to deviate from the amount calculated under Minn.
Stat. § 518A.34. We therefore reverse the district court’s determination of father’s child-
support obligation and remand for a reevaluation.
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II. The district court did not clearly err in determining mother’s income.
Father challenges the district court’s determination of mother’s income. Generally,
the “determination of income must be based in fact and will stand unless clearly
erroneous.” Newstrand v. Arend, 869 N.W.2d 681, 685 (Minn. App. 2015) (quotations
omitted), rev. denied (Minn. Dec. 15, 2015). The clear-error standard of review “does not
permit an appellate court to weigh the evidence as if trying the matter de novo” or “to
engage in fact-finding anew.” In re Civ. Commitment of Kenney, 963 N.W.2d 214, 221-22
(Minn. 2021) (quotations omitted). “Deference must be given to the opportunity of the
[fact-finder] to assess the credibility of the witnesses.” Sefkow v. Sefkow, 427 N.W.2d 203,
210 (Minn. 1988).
Father argues that mother made “material misrepresentations” about her income and
the financial benefit she received from her family trust. He asserts that the district court’s
income determination must be reversed because mother’s alleged “misrepresentations call
into question the veracity of all [mother’s] submissions and negates the Court’s
determination that the trust income was in the nature of a gift and not income.” We are not
persuaded.
Father’s brief alleges that mother’s filings with the district court and testimony
contain contradictory allegations. But the district court referred the matter to the CSM
specifically because of “the parties’ lack of credibility about their financial positions.” It
is therefore unsurprising that there are discrepancies between mother’s filings and her
testimony. Indeed, the district court found neither party was very forthcoming about their
finances. We also note that father’s attorney questioned mother about the discrepancies
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during the hearing, highlighting father’s position for the CSM that mother’s testimony was
not credible.
Moreover, in its order denying father’s motion for review and affirming the CSM’s
order, the district court explicitly acknowledged the credibility problems posed by the
parties’ financial disclosures. The district court found:
[Father] accuses [mother] of making multiple false statements
both to the Court and during discovery. The record reflects
that both parties have credibility issues and that the CSM
correctly made income determinations based on the evidence
submitted and the testimony of the parties. The CSM wrote a
detailed and comprehensive order in this respect.

In short, the CSM made findings based on the evidence presented and its assessment
of the credibility of the parties —an assessment that was reviewed and approved by the
district court. By asking this court to conclude that the findings are erroneous because they
were based on discrepancies known to the CSM and district court, father is essentially
asking this court to reweigh the evidence and make independent credibility determinations.
This is outside the proper scope of appellate review. See id. (noting that an appellate court
misapplies the scope of review when it “usurp[s] the role of the [fact-finder] by reweighing
the evidence and finding its own facts”); see also Kenney, 963 N.W.2d at 223 (stating that,
on review for clear error, the “appell ate court is not to weigh, reweigh, or inherently
reweigh the evidence,” but must consider the evidence “only as is necessary to determine
beyond question that it reasonably tends to support the findings of the factfinder”
(quotation omitted)).
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Finally, father argues that “[t]rust income has traditionally been considered income
for the purposes of calculating child support.” Whether funds from a particular source are
considered to be income for child-support purposes is a legal question reviewed de novo.
Sherburne Cnty. Soc. Servs. ex rel. Schafer v. Riedle, 481 N.W.2d 111, 112 (Minn. App.
1992). Father cites Welsh v. Welsh to support his assertion that trust income is traditionally
included when calculating a party’s income for child-support purposes. 775 N.W.2d 364
(Minn. App. 2009). But as mother notes, father’s argument overstates the holding in Welsh.
In Welsh, a party was “the beneficiary of certain monthly payments from a trust.”
Id. at 366. The district court included the monthly trust income when calculating the
party’s income, and on appeal the party did “not challenge the finding that she receive[d]
monthly distributions from the trust.” Id. at 366, 369. Consequently, the Welsh court noted
that “gross income” included “any form of periodic payment to an individual,” and
determined that the payments from the trust were periodic and could be included when
calculating the party’s gross income. Id. at 369 (quoting Minn. Stat. § 518A.29(a) (2008)).
The requirement that, to be income, a payment must be periodic, has not changed
since Welsh. Compare Minn. Stat. § 518A.29(a) (2008) with Minn. Stat. § 518A.32(a)
(2020). Here, the CSM, affirmed by the district court, concluded that the funds received
by mother from her grandfather’s trust constituted gifts, not periodic payments. Based on
the evidence presented by the parties, we discern no error in this conclusion.
The only evidence in the record regarding the nature of mother’s trust payments is
from mother. Mother testified and submitted affidavit evidence to the effect that she is
only a beneficiary of the trust, not a trustee; the payments made to her are at the discretion
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and under the control of the trustees, not her; and she cannot predict whether and how much
she might receive from the trust. This fact distinguishes mother’s situation from both the
trust beneficiary in Welsh and from father, who indicated that he expects to receive an
annual benefit of $9,000 per year from his family trust. Thus, even though she has received
significant amounts from the trust, the determination that the trust payments to mother do
not qualify as “periodic payments” has support in the record and we therefore affirm the
district court’s calculation of mother’s income.
In summary, we conclude that the district court erred in its determination of father’s
child-support obligation, and we reverse and remand to the district court to reevaluate
father’s support obligation. The district court may, in its discretion, reopen the record on
remand. We, however, discern no error in the calculation of mother’s income and affirm
on that issue.
Affirmed in part, reversed in part, and remanded.