This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-767
C6-99-1022

Nancy Townsend Webb, petitioner,
Appellant (C7-99-767),
Respondent (C6-99-1022),

vs.

David Potter Webb,
Respondent (C7-99-767)
Appellant (C6-99-1022).

Filed January 18, 2000
Affirmed
Amundson, Judge

Ramsey County District Court
F4-92-2853

Ronald D. Ousky, Gelhar & Ousky, P.A., Southgate Office Plaza, 5001 West 80th Street, Suite 935, Bloomington, MN 55437 (for appellant Nancy Townsend Webb)

Kathleen M. Newman, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent David Potter Webb)

 

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

In these consolidated cases, appellant challenges the district court’s award of sole physical custody of the parties’ minor children to respondent, a modification of the original custody order under which appellant had sole physical custody. Appellant also challenges the district court’s failure to find respondent in contempt for failure to pay child support and the district court’s modification of respondent’s child support obligation. Respondent challenges the district court’s award of attorney fees to appellant.

FACTS

The marriage of appellant Nancy Townsend Webb and respondent Daniel Webb was dissolved pursuant to a judgment and decree dated October 26, 1992. The parties have two minor children, D.W., born in 1987, and M.W., Webb born in 1991.

While Townsend Webb was originally awarded sole physical custody of the children, by the time Webb brought a motion for temporary custody on June 12, 1995, his visitation amounted to the children spending 50% of their time with him. In October 1995, the district court awarded Webb temporary joint physical custody of the children. Upon the motions of both parties, the district court held a hearing on the child custody issue on April 2, 1999, and awarded sole physical custody of the parties’ children to Webb.

As part of the original judgment, Webb was to pay "an amount required to meet the reasonable budgetary needs of the children including the expenses of maintaining the homestead." On March 29, 1994, Webb brought a motion to set child support in a fixed dollar amount. The district court amended the judgment, fixing Webb’s child support obligation at $1,291 per month and ordering him to provide a home for Townsend Webb at a cost of $1,724.25 per month.

In January 1998, Webb brought a motion to modify his child support obligation. On May 10, 1999, the district court granted Webb’s motion and ordered that his child support obligation for the time period commencing February 1, 1998, and ending on February 1, 1999, be reduced to $438 per month in cash support and $1,724.25 per month for the payment of the mortgage on Townsend Webb’s residence. Webb’s obligation to pay child support and maintain the home for Townsend Webb after February 1, 1999, was terminated. Additionally, the district court ordered Webb to pay Townsend Webb’s attorney fees in the amount of $40,305.90.

D E C I S I O N

I.

We limit our review of custody determinations to whether the district court abused its discretion. Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993). We will not set aside findings of fact unless clearly erroneous and will give due deference to the district court’s opportunity to judge the credibility of the witnesses. Minn R. Civ. P. 52.01. Furthermore, all evidence must be examined in the light most favorable to the district court’s findings. Ayers, 508 N.W.2d at 521.

To establish a prima facie case, the party seeking a modification of custody must establish four elements:

(1) a change in the circumstances of the child or custodian; (2) that a modification would serve the best interests of the child; (3) that the child’s present environment endangers [his] physical or emotional health or emotional development; and (4) that the harm to the child likely to be caused by the change of environment is outweighed by the advantage of change.

Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn. App. 1997). The change in circumstances must be significant and cannot be a review of conditions existing prior to the original custody order, but must consider only those that occurred since the order. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 690 (Minn. App. 1989), review denied (Minn. June 21, 1989).

The district court found that Townsend Webb’s alcohol use, inability to protect the children adequately from others, inability to meet the children’s needs, and general lack of availability supported a finding that the current custody arrangement was injurious to the emotional and physical well-being of the children and warranted a change in custody. We agree and affirm the district court’s custody modification.

The district court heard from several witnesses who testified that Townsend Webb’s alcohol use was problematic and that she consumed an excessive amount of alcohol in the children’s presence. The district court found that the children expressed concern about their mother’s alcohol use, and heard testimony that corroborated her use of alcohol in the presence of the children. Additionally, the record contains a chemical dependency evaluation recommending that Townsend Webb complete an outpatient chemical dependency treatment program because she manifested symptoms of alcoholism.

The district court found that Townsend Webb failed to protect one of the parties’ children from the verbal and physical abuse perpetrated by a man Townsend Webb dated for a time. Contrary to Townsend Webb’s assertion that the incident was insignificant and irrelevant because the individual in question no longer has contact with the children, the district court found that the effect of this incident on the child was significant and is a source of continuing emotional harm to the child. This finding is supported by the testimony of the child’s therapist, Dr. Pastor, and the guardian ad litem.

The district court found that Townsend Webb was inconsistent in her ability to meet the children’s daily needs such as attending school functions, delivering and picking up the children from various activities on a timely basis, and inaccessibility due to her involvement in social activities. Townsend Webb’s objection to these findings is largely a matter of opinion. Specifically, Townsend Webb disputes the significance of the evidence that led the court to such findings; she claims that some of the information presented to the district court evidenced an acceptable, albeit different, parenting style. The district court heard testimony from Dr. Pastor that Townsend Webb’s style of parenting caused the children to be overly anxious and wary of her dependability and that this was detrimental to their emotional well-being.

Because we must defer to the factfinder’s credibility determinations and because the evidence must be viewed in the light most favorable to the district court’s findings, we conclude that the evidence in the record supports the district court’s findings that Townsend Webb’s alcohol use, failure to protect the children, and inability to meet the children’s daily needs, negatively impacts their emotional and physical well-being.

We also conclude that these findings set forth a substantial change in circumstances supporting the district court’s modification of the original custody order. While the presumption in Minnesota is that the best interests of a child are served by a stable custody arrangement, Westphal v. Westphal, 457 N.W.2d 226, 229 (Minn. App. 1990), the district court found that Webb demonstrated that the benefits to the children of a change in custody outweighed any harm to the children as a result of a change of environment. Specifically, the district court found that "the children’s emotional and physical well being and development are currently jeopardized by the custodial arrangement set forth in the [j]udgment and [d]ecree." This finding is supported by the testimony of Dr. Pastor, who found that the children were harmed by the present joint custody arrangement and would benefit from an award of physical custody to one parent, and by Dr. Pastor’s recommendation that Webb be granted custody of the children.

The district court’s findings are supported by evidence in the record, and are entitled to our deference as to weight and credibility. Therefore, we affirm the district court’s custody modification.

II.

Townsend Webb contends that the district court erred when it (1) modified Webb’s child support obligation; (2) denied her motion to find Webb in contempt for failure to pay child support; and (3) terminated Webb’s obligation to pay the mortgage payment on her residence. Modification of child support is within the district court’s discretion and will not be reversed absent an abuse of discretion. Hennesy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974); Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993), review denied (Minn. June 22, 1993). The district court may modify child support upon a showing of:

(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party or the * * * children that are the subject of these proceedings[.]

Minn. Stat. § 518.64, subd. 2(a) (1998).

Townsend Webb argues that the district court erred when it reduced Webb’s cash support obligation from $1,291 per month to $438 per month for the time period commencing February 1, 1998, and ending on February 1, 1999. The district court found that there had been a substantial change in circumstance rendering the original support order unreasonable and unfair. Specifically, the court found that Webb’s gross annual income had decreased from $119,040 to $69,840 in 1998. The district court also had before it evidence that the children had been spending half of their time with respondent. The district court recalculated Webb’s child support obligation to $1,167.17 per month. The district court found that Webb paid the mortgage payment on Townsend Webb’s home, as well as her car payment and insurance premiums, totaling $2,162.45 per month. Accordingly, the district court found that there was no child support arrearage. The district court’s child support order reflected the parties’ agreement that Webb would pay Townsend Webb’s car and insurance premium payments and mortgage payment, which, in fact, amounted to a substantial upward deviation from the guideline amount.

Townsend Webb argues that the district court’s calculation of Webb’s gross annual income was erroneous. Webb concurs and admits it should have been approximately $79,000. But given that the child support award still exceeds the child support guidelines amount for this level of income, there is nothing in the record to indicate that the district court abused its discretion in modifying Webb’s child support obligation, and we conclude accordingly.

The district court has broad discretion to hold an individual in contempt because the purpose of contempt power is to provide the court with a means to enforce its orders. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986) (citing Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968)). However, the court may do so only where "the contemnor has acted ‘contumaciously, in bad faith, and out of disrespect for the judicial process.’" Erickson, 385 N.W.2d at 304 (quoting Minnesota State Bar Ass’n v. Divorce Assistance Ass’n, Inc., 311 Minn. 276, 284, 248 N.W.2d 733, 740 (1976)).

Townsend Webb moved the court to find Webb in constructive civil contempt for failing to pay child support from April 1997 to January 1998. The district court found that Townsend Webb’s motion was procedurally deficient because she failed to comply with Minn. R. Gen. Pract. 309.01(a),[1] which provides that "[c]ontempt proceedings shall be initiated by an order to show cause served upon the person of the alleged contemnor * * *." Specifically, the district court found that Townsend Webb failed to obtain an order to show cause and have it personally served. Furthermore, the district court found that she failed to plead her contempt motion with the requisite specificity.

The district court also found that a finding of contempt was moot because counsel entered into an agreement in October 1998 that Webb would pay $10,000 to cover all the alleged arrearages. The district court’s decision not to find Webb in contempt was proper as it was well within the district court’s discretion to decide whether such an order was necessary to compel him to comply with the court’s order.

Townsend Webb argues that the district court erred when it terminated Webb’s obligation to provide her with housing because this obligation was part of the parties’ original property settlement. But Webb’s obligation to provide Townsend Webb with housing was part and parcel of his child support obligation.

The original judgment and decree states that Webb’s obligation to provide Townsend Webb with housing ends when his obligation for child support terminates. Thus, the original judgment and decree by its plain language contemplates that Webb’s obligation to provide housing to Townsend Webb is contingent on his obligation to pay child support; we conclude the district court did not abuse its discretion in terminating this obligation.

III.

"Generally, the award for attorney fees [based on Minn. Stat. § 518.14] lies in the discretion of the court." Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). An award of attorney fees will not be upset absent an abuse of discretion." See id. Minn. Stat. § 518.14, subd. 1 (1998), provides, in relevant part, as follows:

Except as provided in subdivision 2, in a proceeding under this chapter, the court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:

(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

The district court found that all three requirements of subdivision 1 were satisfied. Specifically, the district court found that (1) Townsend Webb incurred attorney fees simply for collecting support and responding to Webb’s motion for a change in custody; (2) Townsend Webb’s expenses would have been virtually the same regardless of whether she had filed her counter-motion; (3) Webb had substantial resources with which to pay the attorney fees; and (4) Townsend Webb had little or no income and therefore her ability to pay legal fees was very limited. These findings are well supported by the record. Townsend Webb testified that she was in the process of starting her own business and was not yet generating income. On the other hand, the district court noted that Webb was soon to receive a multi-million dollar settlement. Accordingly, the district court awarded Townsend Webb $16,461.50 for attorney fees incurred in child-support-collection proceedings and $27,814.40 for fees incurred in the custody proceedings.

Because Townsend Webb met the requirements for attorney fees under Minn. Stat. § 518.14, subd. 1, we conclude that the district court did not abuse its discretion in awarding Townsend Webb attorney fees.

Affirmed.

[1] The district court refers to this rule as Minn. R. Fam. Court Pro. 309.01 in its order. The 300 series of the rules of general practice are the rules applicable in family proceedings.