This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-266

 

 

In Re the Marriage of:
Susan K. Handevidt, petitioner,
Appellant,

vs.

Todd G. Handevidt,
Respondent.

 

 

Filed August 22, 2000

Affirmed
Klaphake, Judge

 

Washington County District Court

File No. F688727

 

William E. Haugh, Jr., Michael D. Wentzell, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota St., St. Paul, MN† 55101-1379 (for appellant)

 

Tracey A. Galowitz, 3880 Laverne Avenue N., Lake Elmo, MN† 55042 (for respondent)

 

††††††††††† Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Davies, Judge.


U N P U B L I S H E D†† O P I N I O N

KLAPHAKE, Judge

In a 1988 dissolution proceeding, appellant Susan Handevidt was awarded child support and permanent spousal maintenance.† Ten years later, respondent Todd Handevidt moved to terminate his maintenance obligation.† Appellant then moved to increase child support.† The district court terminated maintenance and refused to modify child support.† Appellant moved for amended findings, which the district court granted in part by increasing child support.† On appeal, appellant challenges the termination of maintenance and the amount of the district courtís child support modification.† Respondent also filed a notice of review challenging the district courtís award of attorney fees to appellant and denying his motion for fees.

Because the district court did not abuse its discretion in its maintenance support determinations and by awarding attorney fees, we affirm.† Because respondent has not filed a separate motion for fees on appeal, we decline to consider his request.

D E C I S I O N

I.

††††††††††† As a preliminary matter, respondent argues that this court does not have jurisdiction to hear this appeal because appellantís motion for amended findings or a new trial was not proper.† Specifically, respondent argues that appellantís motion was an improper motion for reconsideration, which is insufficient to toll the time to appeal a judgment.† See Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996) (motion which only reiterates argument on prior motion is impermissible motion for reconsideration), review denied (Minn. Dec. 23, 1996).† Thus, respondent argues that appellant could only have appealed from the judgment and that the time for appeal has expired.

††††††††††† The supreme court recently addressed the issue of what constitutes a proper posttrial motion in Madson v. Minnesota Mining & Mfg. Co., 612 N.W.2d 168 (Minn. 2000).† Under Madson,

the test for determining whether a motion is authorized, and therefore proper, is to determine whether on the face of the document the party has filed a motion that is expressly allowed under subdivision 2 [of rule 104.01].

 

Id. at 172 (emphasis added).† The face of appellantís posttrial motion documents reveals that appellant has filed a motion for amended findings, which is authorized by Minn. R. Civ. App. P. 104.01.† Accordingly, appellantís motion satisfies Madson and is a proper posttrial motion.

II.

††††††††††† Appellant challenges the district courtís termination of respondentís spousal maintenance obligation. The decision to modify a spousal maintenance obligation rests within the discretion of the district court.† Claybaugh v. Claybaugh,312 N.W.2d 447, 449 (Minn. 1981).† "Maintenance awards are not altered on appeal unless the district court abused its Ďwide discretion.í" Hecker v. Hecker, 543 N.W.2d 678, 680 (Minn. App. 1996) (quoting Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982)), affíd, 586 N.W.2d 702 (Minn. 1997).

Minn. Stat. ß 518.64, subd. 2 (1998), sets forth the circumstances under which a maintenance obligation can be modified.† The statute places a dual burden on the party seeking modification: first, to demonstrate that a substantial change in the partiesí circumstances has occurred and, second, to show that the substantial change has the effect of rendering the original award unreasonable and unfair.† See Nardini v. Nardini, 414 N.W.2d 184, 198-99 (Minn. 1987); Rydell v. Rydell, 310 N.W.2d 112, 115 (Minn. 1981).

††††††††††† Appellantís circumstances have changed substantially since the most recent order modifying maintenance.† At that time appellant was unemployed and, even when she was employed, appellant earned a net monthly income of $1,127. †In addition, the partiesí daughter was still a minor and the twins were only six years old.† At the time of respondentís February 1999 modification request, appellant earned a net income of $1,653 per month, the daughter had become emancipated, and the twins no longer required appellantís full-time care.

††††††††††† Appellantís income from all sources comes within $100 of her reasonable monthly expenses.† Under these circumstances, the court reasonably found that maintenance of $429 per month was excessive.† See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (stating ďmaintenance depends on a showing of needĒ).† The district court carefully considered all relevant factors relating to the award and modification of maintenance and decided to terminate maintenance.† Considering all of the circumstances of this case and the broad discretion afforded the district court in maintenance matters, the decision to terminate maintenance was not an abuse of discretion.† See Claybaugh, 312 N.W.2d at 449.

III.

††††††††††† Appellant also challenges the district courtís child support determinations.† Respondent has a dual support obligation under which he must pay a fixed amount calculated on the basis of his regular income, generally amounting to $872 per month. Respondent must also pay a percentage of his net profit-sharing income when he receives it.† The district court increased respondentís profit-sharing obligation, but refused to modify the fixed obligation.

††††††††††† With respect to the fixed obligation, appellant argues that respondent over-withholds from his paychecks and, consequently, respondentís tax refunds should have been included in his income.† We disagree.† In Lenz v. Wergin, 408 N.W.2d 873, 876 (Minn. App. 1987), this court explained that net income may be calculated either by using tax tables to find standard deductions or by deducting the amounts actually withheld.† If the court opts for the latter approach, however, amounts refunded must be added to find the correct net income.† Id.; see also Tibbetts v. Tibbetts, 398 N.W.2d 16, 20 (Minn. App. 1986) (remanding for consideration of tax refunds where fatherís net income was seemingly based on actual withholding).† In this case, the district court used standard deductions.† The district courtís consideration of the tax refunds was therefore unnecessary with respect to respondentís base obligation.[1]

††††††††††† The analysis with respect to the profit-sharing aspect of the obligation is different.† Respondent must pay 30 percent of his net profit-sharing income.† By overwithholding, respondent can reduce his net income from profit-sharing and, accordingly, can reduce his child support obligation.† A failure to consider respondentís overwithholding would allow him to improperly reduce his obligation.† Cognizant of this fact, the district court found a substantial change in circumstances and ordered that respondent pay 40 percent of his net profit-sharing income as child support.

††††††††††† Appellant argues that the increase in percentage does not adequately deal with respondentís overwithholding.† Based on our review of the record, we conclude that the increase creates a result that is more than equitable.† As with its maintenance determination, the district courtís decision on child support was detailed, thoughtful, and supported by the record.† Accordingly, we observe no abuse of discretion.† See Claybaugh, 312 N.W.2d at 449.††††††††††††††††††††††††††††


IV.

††††††††††† Respondent argues that the district court abused its discretion by awarding appellant attorney fees related to her motion for amended findings.† An award of attorney fees is committed to the discretion of the district court and will not be reversed absent an abuse of that discretion.† Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

††††††††††† As a general rule, an award of attorney fees must be accompanied by specific findings that one party does have the ability to pay and the other does not.† See Courey v. Courey, 524 N.W.2d 469, 473 (Minn. App. 1994); Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991); see also Minn. Stat. ß 518.14, subd. 1 (1998).† Here, the district court did not make specific findings on the partiesí ability to pay.† Nevertheless, the absence of specific findings does not necessarily mandate a reversal of the award.† See Gully v. Gully, 599 N.W.2d 814, 825-26 (Minn. 1999) (affirming award of attorney fees, despite absence of express finding on husbandís ability to pay, because district courtís language implied conclusion that husband had ability to pay); Dobrin v. Dobrin, 555 N.W.2d 921, 925-26 (Minn. App. 1996) (affirming fees awarded in order discussing partiesí economic situations in general terms but not mentioning specific income figures where partiesí finances were fully discussed in prior orders), revíd on other grounds, 569 N.W.2d 199 (Minn. 1997) (expressly declining to disturb court of appealsí decision on attorney fees).

††††††††††† Just prior to the award of attorney fees, the district court issued an order extensively discussing the partiesí financial situations.† According to the courtís calculations, appellantís income fell just short of her expenses while respondentís income exceeded his expenses.† From these findings, it is clear that the district court determined that appellant did not have the ability to pay her fees and that respondent did have the ability to pay.† We will not disturb the courtís award of attorney fees.†

V.

††††††††††† Respondent argues that the district court abused its discretion by refusing to award the attorney fees he incurred with respect to appellantís motion to amend findings.† Besides awarding fees based on need, a court may award fees against a party who unreasonably adds to the length or expense of a dissolution proceeding.† Minn. Stat. ß 518.14, subd. 1.† Appellantís motion was not frivolous, nor was it made in bad faith.† In fact, the motion caused the district court to change its determination on child support, a decision not substantively challenged by respondent.† Because the motion itself was proper, the refusal to award attorney fees was not an abuse of discretion.† See Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996) (declining to award attorney fees where appellantís arguments were not frivolous or made in bad faith).

††††††††††† In his brief, respondent also requests fees incurred in this appeal.† But because respondent has not filed a separate motion for fees on appeal, we decline to consider his request.† See Minn. R. Civ. App. P. 139.06 (party seeking fees on appeal must submit separate motion); Illinois Farmers Ins. Co. v. Neumann, 596 N.W.2d 685, 689 (Minn. App. 1999) (denying motion for attorney fees where motion did not comply with rule 139.06), review denied (Minn. Sept. 14, 1999).

††††††††††† Affirmed.

 



[1]† We note that a tax refund should be considered when it is the result of factors unrelated to the standard deductions.† See Koury v. Koury, 410 N.W.2d 31, 33 (Minn. App. 1987) (requiring consideration of tax refunds that resulted, in large part, from real estate investments).† Appellant, however, did not argue to this court or to the district court that the tax refunds are a result of anything besides respondentís overwithholding.