This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-00-1837

 

 

In Re the Marriage of:

 

Steven Leslie Murphy, petitioner,

Respondent,

 

vs.

 

Robin Estelle Murphy,

Appellant.

 

 

Filed March 20, 2001

Affirmed

Harten, Judge

 

Goodhue County District Court

File No. F5-97-1143

 

 

Richard D. Gorman, Gorman Law Office, 1626 Old West Third Street, Red Wing, MN 55066 (for respondent)

 

Kristine L. Dicke, Ryan & Grinde, Ltd., P.O. Box 6667, Rochester, MN 55903-6667 (for appellant)

 

††††††††††† Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.

 

U N P U B L I S H E D†† O P I N I O N

HARTEN, Judge

Appellant contends that the district court abused its discretion in failing to modify child support and maintenance and in denying her request for attorney fees.† Because we see no abuse of discretion, we affirm.

†FACTS

 

Appellant Robin Murphy and respondent Steven Murphy were married in 1978.† They have two sons, N.M., age 19 but not yet emancipated, and M.M., age 17.† When the marriage was dissolved in 1998, appellant received physical custody of the children; however, they spent much of that year and the next year in out-of-home placement.† The district court calculated respondentís income without considering his overtime pay, found that his guideline child support obligation was $964, and ordered him to pay appellant $550 in temporary monthly maintenance for five years.

Appellant challenged the dissolution judgment in this court.† She raised four issues, alleging that the district court had abused its discretion in (1) adopting respondentís financial calculations, (2) failing to apply the correct standards for imputed income and overtime income, (3) denying her permanent spousal maintenance, and (4) denying her an award of attorney fees and costs.† Appellant did not raise the amount of spousal maintenance as an issue.† In Murphy v. Murphy, No. C6-98-2340 (Minn. App. July 27, 1999), (Murphy I), we (1) reversed the district courtís finding on respondentís income and remanded for the inclusion of overtime income in his net income as established by the court, (2) reversed the district courtís decision on the duration of maintenance and made maintenance permanent, and (3) affirmed the district courtís denial of attorney fees. †Because appellant had not raised the amount of maintenance as an issue, this court did not address it.† Neither the district court nor appellant took any immediate action following the release of this courtís decision.

††††††††††† Six months later, the social services agency recommended that M.M. be discharged from placement and allowed to live with respondent, where N.M. had also chosen to live.† Respondent moved for a change of physical custody and termination of his child support obligation.† Appellant then moved to deny respondentís motion and to increase maintenance retroactively to July 1, 1998.[1]

Following a hearing, the district court issued two judgments.† One addressed the issue remanded by this court, i.e., the calculation of respondentís income.† In its original judgment, the district court had found respondentís gross earnings for 1998 to be $62,346; his net income available for child support to be $38,559, and child support to be $964.† On remand, the district court used respondentís 1998 tax returns and W-2 forms that had not been available at the time of judgment and found respondentís gross earnings to be $69,807, his net income available for child support to be $44,800, and child support to be $1,120.† The district court also found that the reasonable and necessary monthly living expenses of appellant and the two children were $3,300, of which $1,100 was attributable to the children and $2,200 attributable to appellant.† The judgment left child support at $964 because the children had not been with appellant during most of the relevant time, but amended temporary spousal maintenance of $550 monthly to permanent maintenance in that amount, as this court had directed in Murphy I.

††††††††††† The second of the two judgments (1) awarded temporary physical custody of both children to respondent, (2) found that respondent had had physical custody since March 2000, (3) terminated respondentís child support obligation and reduced his retroactive MarchóAugust 2000 obligation to $550, (4) reserved appellantís child support obligation, and (5) denied appellantís motion for increased spousal maintenance, noting that at the time of trial appellant claimed $3,822 monthly expenses for herself and two children and at the time of this motion claimed $3,675 expenses for herself alone, a difference of $147.

††††††††††† Appellant challenged both judgments.† A special term panel of this court ordered that only the appeal from the remanded issues go forward.† The only issue remanded was the calculation of respondentís income; however, appellant also challenges the district courtís failure to increase child support based on respondentís increased income and the denial of her motion for attorney fees on remand.[2]

††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† D E C I S I O N

1.† †††††† Respondentís Income

††††††††††† Findings of fact based on oral or documentary evidence are not set aside unless they are clearly erroneous.† Minn. R. Civ. P. 52.01.† We see no error in either the district courtís finding that respondentís gross income for 1998 was $69,807 or its finding that his net income was ďapproximately $43,000.Ē† The district court added the amounts listed on respondentís W-2 forms and arrived at the amount he listed as income on his 1998 tax form.[3]† Appellant provides figures and calculations purporting to show that respondentís actual income for 1998 was $73,376 and contends that the district court erred by not adopting them.† But she does not explain what was erroneous in the district courtís use of respondentís tax forms nor does she offer support for her view that a district court must adopt one partyís calculations of the other partyís income.

††††††††††† Appellant also objects to the district courtís failure to make findings on the specific amounts deducted to arrive at respondentís net income.† But this finding is commensurate with the district courtís earlier unchallenged finding on deductions, and the minimal discrepancy works to appellantís advantage.† The district courtís calculation of respondentís income on remand is not clearly erroneous.

2.†††††††† Child Support Award

††††††††††† A trial court has broad discretion to decide child support; this court will not reverse a decision on child support unless that decision was clearly erroneous. †Rutten v. Rutten, 347 N.W.2d 47, 50-51 (Minn. 1984).† The district court explained that, despite its finding on remand that respondentís income and, therefore, guideline child support were greater than it had previously found, it would not impose a retroactive increase in child support because, for most of the time appellant was receiving child support, the children were not with her but were in out-of-home placement. Appellant does not explain why she is entitled to the additional child support amount despite the fact that the children were not with her during that period.† The district courtís decision not to award appellant supplementary child support is not clearly erroneous.

3.†††††††† Attorney Fees[4]

††††††††††† The decision to award attorney fees rests within the discretion of the district court.† Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977).† On remand, the district court denied appellantís motion for attorney fees.† In Murphy I, we affirmed the denial of appellantís original motion for attorney fees, quoting the district courtís findings that neither party had the means to pay the fees, that respondent was substantially in debt and would continue to be, and that respondent had done nothing to protract or complicate the proceeding.† Appellant offers no argument to support her challenge to the denial of fees on remand except to assert that ď[r]espondent has ample ability to pay.Ē† But respondent now has both children, and appellant contributes nothing to their support.† Finally, we are mindful that we affirmed the denial of attorney fees in Murphy I.† We conclude that the district court did not abuse its discretion in denying attorney fees on remand.

††††††††††† Affirmed.



[1] Appellant claimed to be moving for an increase in maintenance pursuant to our decision in Murphy I, but that decision did not address the amount of maintenance; appellant had challenged only the duration of maintenance, not its amount.† In its memorandum following remand, the district court noted that, because appellant had not challenged the amount of maintenance and this court had not addressed it, the amount of maintenance had been tacitly affirmed. The court also noted that ď[appellantís] reasonable monthly needs are met by this award when coupled with her income.Ē

[2] Appellant also challenges the denial of her motion for increased maintenance, but that issue is not before us.† See this courtís special term order of November 28, 2000, restricting this appeal to the remanded issues.† The amount of maintenance was not remanded; it was neither raised nor addressed on the prior appeal.

[3] Respondent also listed $30 in taxable interest and $1,250 in taxable refunds or credits, bringing his total income to $71,087.

[4] In her brief, appellant also seeks attorney fees on appeal but she has not brought the motion required by Minn. R. Civ. App. P. 139.06.† We therefore do not address the issue.