This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Debbie ReNae Smith,





Dennis V. Carlson,




Filed June 13, 2000


Huspeni, Judge*


Hennepin County District Court

File No. PA 34831



Peter H. Watson, 205 Commerce at the Crossings, 250 Second Avenue South, Minneapolis, MN 55401 (for appellant)


Gary A. Debele, Walling & Berg, P.A., 121 South 8th Street, Suite 1550, Minneapolis, MN 55402 (for respondent)




            Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s order denying her motion to modify child support.  She contends that the district court (a) clearly erred when it found no substantial change in circumstances existed; (b) improperly adopted verbatim the proposed findings and conclusions of respondent; and (c) abused its discretion when it denied her motion for need-based attorney fees under Minn. Stat. § 518.14, subd. 1 (1998).  Because we see no error in any of the district court’s determinations, we affirm.


            Appellant Debbie ReNae Smith and respondent Dennis Vernon Carlson are the parents of twin boys, C.D.S. and D.W.S.  Smith and Carlson had a long-term relationship but were never married.  Carlson admitted paternity in a 1996 paternity action.  Smith and the children reside in a home owned by Carlson.  Carlson pays the utilities on that home.

As part of the paternity action, Smith sought an award of child support from Carlson.  Carlson admitted that his monthly income exceeded the statutory guideline maximum, but he did not provide Smith or the district court the financial information necessary to establish his actual monthly income.  Smith requested an upward departure from the maximum guideline amount based on Carlson’s ability to pay additional support and on the standard of living to which the children had allegedly become accustomed.  The district court noted that Carlson’s ability to pay additional support was, by itself, an insufficient basis to deviate from the guidelines.  At the time of the paternity hearing, Smith had not established the children’s standard of living with what the court considered sufficient evidence.  The district court ordered “temporary” child support of the maximum guideline amount, $1,690 per month.  It reserved the question of whether Smith could prove that an upward deviation was justified. 

            Smith’s subsequent motion for an upward modification of child support was denied.  The district court found that Smith had not proven that the maximum guideline support was insufficient to permit the children to maintain the standard of living to which they had become accustomed prior to the termination of their parents’ relationship.  The district court also declined to modify the obligation of Carlson to pay the utilities at the residence where Smith and the children live, and it required him to pay for the children’s educational and extracurricular expenses.  No appeal was taken from this order.

            Smith next brought a motion requesting the court’s permission to remove the children’s residence to Fergus Falls, Minnesota.  She also again sought an upward modification of child support.  Carlson opposed both the proposed move and the child support modification.[1]  After an evidentiary hearing, in an order dated February 4, 1999, the court permitted Smith to remove the children to Fergus Falls at the end of the 1998-99 school year, provided that Smith had “found proper housing for the children, [and] has made arrangements for the children’s education, counseling and medical needs.”  The court also ordered that Smith “may bring a motion for an increase in child support provided that [she] submits a detailed budget outlining the necessary monthly expenses for the children.”  The district court declined to rule at that time on the motion to modify Carlson’s support obligation because “child support was not an issue scheduled for trial.” 

In August 1999, although Smith had not yet moved to Fergus Falls, she brought another motion to modify child support.  The district court denied this motion on the basis that Smith had not demonstrated a change of circumstances and that she had not provided the court with sufficient evidence regarding the children’s expenses in Fergus Falls.  The court also denied Smith’s request for attorney fees on the basis that there was no evidence that Carlson proceeded in bad faith and that Smith has the ability to pay her own fees. 


1.         Child-support modification

            The district court has broad discretion to provide for the support of the parties’ children.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Appellate courts will not reverse a district court’s decision on modification of child support unless that decision was an abuse of the district court’s discretion.  Id. at 51.  But the district court may only modify a child-support order if the moving party establishes a change in circumstances rendering the existing order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (Supp. 1999); Marden v. Marden, 546 N.W.2d 25, 27 (Minn. App. 1996) (citation omitted). 

            A.        Substantial change in circumstances

Smith contends that her proposed move to Fergus Falls presents a change in circumstances and that the district court abused its discretion in denying her motion.  At the time of the hearing on the modification motion, however, there had yet to be any change in circumstances.  Smith and the children remained in Carlson’s home, which Carlson was continuing to maintain.  The district court noted that Smith had failed to comply with the conditions set forth in the prior order permitting her to move.  To date, Smith has failed to provide any documentation that she has secured “proper housing for the children, [and] has made arrangements for the children’s education, counseling and medical needs” as required by the district court’s February 4, 1999 order.

            The move out of Carlson’s residence to Fergus Falls, or any other location, may in fact create a substantial increased need.  This is one of the bases for modifying a child-support order.  Minn. Stat. § 518.64, subd. 2(a)(2).  But Smith bears the burden of establishing this increased need.  Meier v. Connelly, 378 N.W.2d 812, 818 (Minn. App. 1985).  She has failed to provide the district court documentary or affidavit evidence of the actual cost of housing and other expenses in Fergus Falls.  While we are not insensitive to the difficulty Smith may encounter in moving and establishing a new home for the children without the additional child support that may be appropriate and necessary, we cannot rule that the district court abused its broad discretion in requiring that more concrete evidence of actual expenses be submitted by Smith.  The current state of the record would require the court to speculate on whether the move to Fergus Falls will result in a substantial increase in need to maintain the children’s standard of living.  See Quaid v. Quaid, 403 N.W.2d 904, 908 (Minn. App. 1987) (noting that the court must base its support award on the parties’ present circumstances and not what the court expects them to be in the future), review denied (Minn. June 30, 1987).

            Finally, we conclude that Smith’s motion for increased child support was brought prematurely.  If, in the future, she is able to establish a change in circumstances based on non-speculative evidence, the court may evaluate the merits of a request for increased child support.  On the record before us, there was no abuse of discretion in denying the relief requested by Smith.

            B.        Upward deviation from the child-support guidelines

            Because we agree with the district court that Smith failed to establish a change in circumstances sufficient to warrant a modification of the existing child-support order, we also affirm the court’s decision that an upward deviation from the child-support guidelines was not justified at this time.

            C.        Adoption of Carlson’s proposed findings

            Smith also contends that the district court’s adoption of Carlson’s proposed findings of fact and conclusions of law was clearly erroneous.  We disagree.  Although the adoption of a party’s proposed findings and conclusions might raise a question as to whether the district court independently reviewed the evidence, doing so is not reversible error per se.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993).  It is ultimately the district court’s responsibility to assure that the findings and conclusions — from whatever source they are derived — are specific and provide a meaningful basis for appellate review.  Id.  The district court’s findings and conclusions in this case are specific and are supported by the record. 

2.         Attorney fees

            Smith also seeks review of the district court’s denial of her request for attorney fees.  Parties in family law proceedings may seek an award of attorney fees pursuant to Minn. Stat. § 518.14, subd. 1 (1998).  “Generally, the award for attorney fees [based on Minn. Stat. § 518.14, subd. 1] lies in the discretion of the court.”  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).  “A trial court’s decision regarding the award of attorney fees will not be upset absent an abuse of discretion.”  Bliss, 493 N.W.2d at 589 (citation omitted).

            An award of attorney fees under Minn. Stat. § 518.14, subd. 1, shall be made if the court finds that (1) they are necessary for a good-faith assertion of the party’s rights; (2) the party from whom they are sought has the means to pay them; and (3) the party seeking the fees does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1.  A court can also award fees under this section as a sanction.  Id. 

            In this case, the district court found that Carlson did not act in bad faith and that Smith had the ability to contribute to her own fees.  The record supports the court’s determination.  We find no indication that Carlson acted inappropriately.  In addition, Smith has a master’s degree in psychiatric nursing and is employable.  Her failure to obtain employment is an insufficient basis to mandate an award of attorney fees under Minn. Stat. § 518.14, subd. 1. 


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] The nature of Smith’s obligation to seek leave of the court to move the children to another location within the state is not before this court on appeal, nor is the district court’s decision to permit the move.