This opinion will be unpublished and

may not be cited except as provided by

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







In Re the Marriage of:

Michele M. Weitzel-Green, petitioner,





Scott Lee Green,



Filed November 6, 2001

Affirmed in part, reversed in part, and remanded

Randall, Judge


Carver County District Court

File No. F6-98-355



Elizabeth B. Bryant, Kelly M. McSweeney-Loonan, Zalk & Bryant, P.A., 5861 Cedar Lake Road, Minneapolis, MN 55416 (for respondent)


Kay Nord Hunt, Marc A. Johannsen, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for appellant)


Considered and decided by Hanson, Presiding Judge, Randall, Judge, and Foley, Judge.*


R. A. RANDALL, Judge

Appellant-father, a joint-physical custodian, challenges the district court's denial of his motion to modify his child-support obligation alleging (1) his increased expenses, respondent-mother's increased income, and the parties' children's increased needs demonstrate that he is presumptively entitled to modification under the Hortis/Valento formula even though the parties originally stipulated to a support obligation higher than appellant was obligated to pay; and (2) the district court failed to make adequate findings. By notice of review, respondent argues that the district court erred by denying her request for attorney fees. Because the district court failed to make adequate findings to afford meaningful appellate review, we reverse and remand.


Appellant Scott Lee Green and respondent Michele Weitzel-Green were married in September 1985, and their marriage was dissolved in December 1998 per a stipulation approved by the district court. The parties stipulated to joint legal and physical custody of their four minor children, and appellant agreed to pay $1,600 per month in child support, all of the children's activity fees, and half of the children's sports equipment costs. These stipulated amounts were not consistent with the child-support guidelines or the Hortis/Valento formula, but the district court reviewed the stipulation amounts and found them acceptable.

At the time of dissolution, appellant's net monthly income was $4,600 based on a gross yearly income of $90,000, and his reasonable expenses were $3,700, which included an allowance for a monthly rent payment and the children's activities. Respondent's net monthly income was $1,989 based on a gross yearly income of $28,000, and her reasonable monthly expenses were $4,000. Sometime after the marriage was dissolved, appellant moved out of his home and began living with his family so he no longer had a monthly rent payment.

In August 2000, appellant moved the court to modify his support obligation. Although appellant's gross yearly income remained the same as in 1998, he claimed that his expenses had significantly changed due to his children's increased extracurricular activities and his desire to purchase a home. He also asserted that his support obligation should be modified because respondent's gross yearly income had increased to $40,000 plus an $8,000 draw. Respondent moved for attorney fees, asserting that she was entitled to need-based fees based on the disparity between the parties' incomes. She also asserted that she was entitled to conduct-based fees because appellant unreasonably contributed to the length and expense of the proceedings. The district court did not make specific findings on the parties' income or expenses, but it concluded that a substantial change in circumstances did not exist and denied appellant's motion to modify his child-support obligation. The court also denied respondent's request for attorney fees. Both parties now challenge the district court's decision.




I. Adequacy of the District Court's Findings


The decision to modify a child support order is within the sound discretion of the district court, and its decision will be reversed only when it is based on a clearly erroneous conclusion that is against logic or the facts. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).

The Hortis/Valento formula is an application of the child support guidelines. Schlichting v. Paulus, 632 N.W.2d 790, 792 (Minn. App. 2001). The support obligation under the formula is presumed to be correct, but this presumption is rebuttable, and the district court may deviate from the guideline amount if it makes appropriate findings required under the governing statute. Id. at 792-93.

If the district court deviates from the child support guidelines, the court must make written findings identifying the support amount calculated under the guidelines and the reasons why the court deviated. Minn. Stat. 518.551, subd. 5(i) (2000). Also, the court must specifically address the criteria listed in Minn. Stat. 518.551, subd. 5(c) (2000) and how the deviation serves the child's best interests. Id.

Appellant argues that, applying the Hortis/Valento formula, the statute's presumptive requirement to reduce his support obligation is met. See Minn. Stat.  518.64, subd. 2(b) (2000) (stating substantial change in circumstances rendering current support order unreasonable and unfair is presumed if application of guidelines to parties' current circumstances results in calculated order that is at least 20 percent and $50 higher or lower than current support order). Appellant contends that the district court failed to set forth sufficient findings to demonstrate that it considered the requisite statutory factors when making its decision. Appellant cites to Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) to support his argument. While Stich involved a challenge to the district court's findings in support of a spousal maintenance award, the supreme court did provide guidance as to what constitutes insufficient findings. The court noted that effective appellate review of a challenge to a district court's exercise of discretion can occur only if the district court made sufficiently detailed factual findings to demonstrate that it considered the relevant statutory factors. Id. at 53. The court concluded that the district court's findings were insufficient because it did not make findings regarding the parties' expenses or whether the obligor had the financial ability to pay maintenance, both of which are statutory factors the court should have considered when it made its maintenance determination. Id.

The guidelines amount for child support is a rebuttable presumption, and the district court may deviate from the guidelines if the deviation is in a child's best interests. Minn. Stat.  518.551, subd. 5(i). Here, the court's original order was based on the parties' stipulation that set appellant's support obligation at $1,600 per month, an amount much higher than appellant would have been obligated to pay if the court had applied the Hortis/Valento formula. The parties agreed to the $1,600 in light of their "income and expenses, the children's needs, and the Minnesota Child Support Guidelines." Presumably,
appellant had the children's best interests in mind when he agreed to a support payment that was higher than he was obligated to pay.

The district court's only finding on the modification issue is located in its memorandum in support of its order, where the court simply stated:

Despite the volume of documentation that both parties have submitted, the Court is not convinced that there's been a substantial change of circumstances so as to make the terms of the original Judgment and Decree unfair. Both parties were represented by competent counsel who produced and submitted to the Court for approval, a comprehensive and complete marital termination agreement. This agreed upon language was incorporated into the Findings of Fact, et cetera. I am unwilling to modify this agreement based upon the information subsequently submitted by [appellant].


The district court's memorandum does not demonstrate that the court considered the requisite statutory factors and does not discuss in detail the "volume of documentation." The court did not make specific findings regarding the parties' income and expenses or the children's needs (among others not made), and the court's memorandum does not explain why or how it concluded that a substantial change in circumstances did not exist. See Kowalzek v. Kowalzek, 360 N.W.2d 423, 426 (Minn. App. 1985) (concluding district court's findings on parties' resources did not meet bare acceptable minimum for review because court did not set forth findings on essential statutory factors).

Because the court did not make specific findings or otherwise explain how it arrived at its decision, it is difficult to discern the basis for the court's decision, especially given the fact that respondent acknowledges her income increased from $28,000 per year to more than $40,000 per year. Appellant contends, with some support in the record, that his expenses have significantly increased.

Thus, we remand this case to the district court for factual findings to support its decision. Doing so will allow the district court to consider whether modification is appropriate and, if so, to determine a fair and equitable support obligation that takes into account any substantial changes in the parties' circumstances and the children's best interests. We do note that since the original stipulation had a reasonable basis to bypass Hortis/Valento, this remand, contrary to appellant's argument, does not mandate that Hortis/Valento be now applied. The spirit and equitable basis for Hortis/Valento is simply one of the factors that the district court, using its discretion, can look at when reviewing appellant's request for modification.

II. Attorney Fees

Respondent argues that this district court erred in denying her request for attorney fees. Respondent asserts that she is entitled to need-based fees based on the disparity between the parties' incomes. She also asserts that she is entitled to conduct-based fees because appellant unreasonably contributed to the length and expense of the proceedings by failing to acknowledge the parties' original stipulation when he moved to modify his support obligation, serving and filing his motion without the requisite documentation of his income, serving and filing unreliable pleadings, and failing to disclose voluntarily a pending purchase agreement for a home.

"The standard of review for an appellate court examining an award of attorney fees is whether the district court abused its discretion." Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999) (citation omitted). The district court "shall" award attorney fees, costs, and disbursements 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.


Minn. Stat. 518.14, subd. 1 (2000). The district court may also award, in its discretion, fees "against a party who unreasonably contributes to the length or expense of the proceeding." Id.

We have reviewed the record, and we affirm the district court's decision to deny respondent's request for attorney fees.

Affirmed in part, reversed in part, and remanded.

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