This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Jan Lynette Carlson, petitioner,
Ronald Gerald Carlson,
Filed April 23, 2001
Reversed and remanded
Carver County District Court
File No. F795396
Marla M. Zack, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for respondent)
Michael Ormond, Ormond Law Offices, 300 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for appellant)
Considered and decided by , Presiding Judge, , Judge, and , Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges the denial of his motion to modify his child-support obligation. He argues that the district court failed to make the findings necessary to support its decision and abused its discretion by awarding attorney fees to respondent. Because the district court failed to make necessary findings on both the support issue and the attorney-fee award, we reverse and remand.
Appellant Ronald Carlson and respondent Jan Carlson dissolved their marriage in February 1996 pursuant to a stipulated decree. Respondent received sole physical custody of their two minor children, and appellant was awarded liberal visitation. At the time of the dissolution, appellant earned $52,000 per year and his employer paid his business expenses. His support obligation was established at the guidelines amount of $855 per month and was increased by cost-of-living adjustments in 1998 and 2000.
Since the dissolution, appellant has changed employment several times. He was terminated from a sales position in July 2000. In August 2000, he moved to reduce his support obligation because of his unemployment.
The day before the August 30, 2000, modification hearing, appellant found new employment. He submitted to the court a letter from his new employer estimating that his annual income would be $49,400. At the hearing, appellant argued (1) that his monthly obligation should be reduced to the guidelines amount of $645.48 per month because his salary had decreased since the dissolution judgment and (2) that his obligation should have been reduced for his time of unemployment. The district court denied appellant's motion and awarded attorney fees to respondent. The court concluded that appellant has the financial resources to pay [respondent] the full amount of child support as previously ordered and that there shall be no abatement of [his] child support obligation during his period of unemployment. This appeal followed.
The district court has broad discretion in deciding whether to modify a child- support obligation. Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). A reviewing court will reverse a decision regarding modification only if the district court abused its discretion by making a clearly erroneous conclusion that is against the logic and the facts on the record. Id. (quotation omitted). A child-support obligation may be reduced if the moving party shows substantially decreased earnings making the terms of the existing obligation unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (2000); Heaton v. Heaton, 329 N.W.2d 553, 554 (Minn. 1983). The moving party has the burden of showing that the terms of the prior support order are unreasonable and unfair. Heaton, 329 N.W.2d at 554.
Appellant argues that the district court erred by failing to make specific findings in denying his motion to reduce his child-support obligation. He asserts that the district court should have made findings reflecting (1) the six weeks that he received unemployment compensation and (2) the fact that he has a reduced annual income from the employment that he found the day before the modification hearing. The only finding made by the district court was:
that based upon all of the documents submitted, [appellant] has the financial resources to pay [respondent] the full amount of child support as previously ordered. Therefore, there shall be no abatement of [appellant's] child support obligation during his period of unemployment.
When considering a request for modification of child support, a district court is required to make express findings on the factors listed in section 518.64, subdivision 2. Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986). Findings are required to demonstrate that the district court actually did take all relevant factors into consideration. Erickson v. Erickson, 385 N.W.2d 301, 303 (Minn. 1986). Findings are necessary whether the court modifies or declines to modify child support. Olson v. Olson, 399 N.W.2d 660, 664 (Minn. App. 1987).
Because the district court here did not include any such findings in its order, this court has no basis for review of the district court's determination. Respondent argues that the record supports the district court's conclusion, but the supreme court has stated that
[w]hile the record may support a trial court's decision, it is nevertheless inadequate if that record fails to reveal that the trial court actually considered the appropriate factors. While we would agree that there are occasions where an appellate court can find support for a trial court's decision by an independent review of the record, such action is improper where, as here, it is unclear whether the trial court considered factors expressly mandated by the legislature.
Moylan, 384 N.W.2d at 865 (citations omitted).
The district court here failed to make findings addressing (1) whether there was a substantial change in the parties' circumstances and (2) whether any such change rendered the existing support obligation unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a). The court simply stated that appellant had the financial resources to pay his current support obligation of $953 per month, without making a finding of his net monthly income. See Videen v. Peters, 438 N.W.2d 721, 724 (Minn. App. 1989) (stating that even if record tends to support district court's decision on modification of child support, remand is required if court fails to consider expressly whether there has been a substantial change in parties' circumstances and whether that change makes original order unreasonable and unfair), review denied (Minn. June 21, 1989). Because there are no findings to show that the district court considered the necessary statutory factors, we must reverse and remand.
Appellant lost his previous employment on July 21, 2000, but he did not file his motion for child-support modification until August 14, 2000. He argues that the district court should have reduced his support obligation for the six-week period that he was unemployed; appellant is thereby effectively requesting a retroactive child-support modification. Generally, modification of child support may not be made retroactive to a date before the moving party served notice of the motion for modification on the responding party. Minn. Stat. § 518.64, subd. 2(d) (2000). Modification may only be applied to an earlier period if the court expressly finds that the party seeking modification was precluded from serving a motion due to significant physical or mental disability, a material misrepresentation of another party, or fraud on the court. Id., subd. 2(d)(1). Because there is no evidence that appellant was precluded from serving his motion before August 14, there is no basis for making any modification of support effective earlier than that date.
But, although appellant was unemployed at the time of the August 30, 2000 hearing, the record shows that he had secured new employment that was scheduled to begin on September 5, 2000. In the interest of judicial economy, the district court on remand should reopen the record and determine whether there was, overall, during the period August 14, 2000, until the date of hearing on remand a substantial change in the parties' circumstances that renders appellant's existing support obligation unreasonable and unfair. See Gardner v. Gardner, 391 N.W.2d 865, 870 (Minn. App. 1986) (remanding and ordering district court to reopen record to obtain evidence of current financial circumstances).
If appellant's support obligation is modified, the court must either set appellant's obligation at the guidelines amount or explain, in written findings, its reasons for deviating from the guidelines, as required by Minn. Stat. § 518.551 (i) (2000). See Kahn v. Tronnier, 547 N.W.2d 425, 429 (Minn. App. 1996) (stating that deviation from child-support determination under guidelines must be supported by explanatory findings), review denied (Minn. July 10, 1996).
Appellant challenges the district court's award of $450 in attorney fees to respondent. In a proceeding under chapter 518, an award of attorney fees rests almost entirely within the discretion of the district court, and an award will not be disturbed absent a clear abuse of discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).
Appellant asserts that the district court's failure to make statutorily required findings warrants a reversal of the attorney-fee award. Under Minn. Stat. § 518.14, subd. 1 (2000), a district court shall award attorney fees, costs, and disbursements provided it finds that (1) 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) the party from whom fees, costs, and disbursements are sought has the means to pay them, and (3) the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. Respondent cites Gully for the proposition that the absence of specific findings does not mandate a remand. In Gully, the supreme court found that a lack of specific findings on the statutory factors for a need-based award under section 518.14, subdivision 1, is not fatal to such an award where review of the order reasonably implies that the district court considered the relevant factors. Gully, 599 N.W.2d at 825-26.
Here, there is nothing on the face of the order from which we can determine whether the district court considered the relevant factors. Therefore, we reverse the fee award and remand the question of attorney fees for the necessary findings.
Reversed and remanded.