This opinion will be unpublished and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

C8-01-746
C3-01-1383

 

 

In Re the Marriage of:

Barbara Nyhammer, f/k/a

Barbara Lyons, petitioner,

Appellant (C8-01-746, C3-01-1383),

 

Lynette M. Bledsaw,

Appellant (C3-01-1383),

 

vs.

 

Tracy Lyons,

Respondent.

 

 

Filed March 26, 2002

Affirmed; motion denied

Halbrooks, Judge

 

 

Dakota County District Court

File No. F99414207

 

Lynette M. Bledsaw, Chadwick & Mertz, P.A., 600 West 79th Street, Suite 210, PO Box 623, Chanhassen, MN 55317 (for appellant and pro se)

 

Barbara S. Lutter, Lehmann & Lutter, P.A., 1380 Corporate Center Curve, Suite 214, Eagan, MN 55121 (for respondent)

 

 

 

            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant Barbara Nyhammer challenges the modification of respondent Tracy Lyons’s child support obligation and visitation rights.  She argues that the district court abused its discretion by (1) failing to make adequate and accurate findings in modifying Lyons’s child support obligation, (2) denying Nyhammer’s motion for discovery of Lyons’s wife’s income and his corporation’s finances, (3) increasing Lyons’s visitation rights, (4) denying Nyhammer’s motion for attorney fees, (5) granting Lyons attorney fees, and (6) denying Nyhammer’s motion for amended findings.  Nyhammer also moves to strike portions of Lyons’s appellate brief and appendix.  The district court erred in denying Nyhammer’s motion for amended findings, but reversal on this issue is unnecessary because the same arguments have been made and determined on the merits on appeal.  Because we conclude that the district court did not abuse its discretion in any of the remaining matters, we affirm.  Nyhammer’s motion to strike is without merit and is denied. 

FACTS

            Appellant Barbara Nyhammer and respondent Tracy Lyons divorced in 1994 and both have remarried.  They share joint legal custody of their two children, presently ages 8 and 12, but Nyhammer has sole physical custody.  At the time of their marriage dissolution, Lyons was entitled “to the right of reasonable and liberal visitation * * * as the parties agree.”  His child support obligation was initially set at $100 per month, but was to increase to 30% of his net income when he obtained employment as a chiropractor.

            Lyons relocated to Wisconsin, where he is currently the Clinic Director of the Genesis Chiropractic Clinic.  The clinic is owned by his wife, who is also a chiropractor.  As of June 2000, Lyons was paying $502 per month in child support and had visitation with the children every third weekend, from Friday to Sunday during the school year and from Thursday to Sunday in the summer.

            On June 16, 2000, Lyons moved the district court for a modification of the visitation schedule, a change in the visitation exchange site, and for appointment of a guardian ad litem to conduct a visitation evaluation.  Nyhammer responded with a motion to increase Lyons’s child support obligation.  At the hearing, the parties stipulated to an increase in Lyons’s child support to $658 per month.  The court appointed a guardian ad litem and reserved a decision on Lyons’s other motions pending the guardian’s assessment. 

            Nyhammer requested a change of venue, which Lyons opposed and the district court denied.  Nyhammer then noticed Lyons’s deposition and attached an exhibit to the deposition notice that listed 30 items for Lyons to produce either before or at the deposition.  The requested documents related to the financial records of Lyons, his wife, and the corporation.  No requests for production of documents or interrogatories were served.  Despite the resolution of the child support issue by prior stipulation, Lyons produced those listed documents that were within his personal control and submitted to a deposition.

Following the deposition, Nyhammer moved the court to compel Lyons to produce the financial records for his wife and the corporation.  Nyhammer also asked that Lyons’s monthly child support obligation be increased by $165 to cover Nyhammer’s liability for Lyons’s student loan payment, if he failed to pay it, and for attorney fees.

            By its order of February 20, 2001, the district court denied Nyhammer’s motion in its entirety, finding that Lyons’s wife’s income was not relevant to the child support or visitation issues and that Lyons had taken all necessary steps to establish his sole responsibility for repayment of his student loan.  The court permitted discovery for one additional week and set an evidentiary hearing for March 29 and 30, 2001, to address any issues raised in the guardian ad litem’s report. 

            On March 28, 2001, Nyhammer moved for amended findings from the February 20, 2001 order.  The parties appeared in district court the next day for the evidentiary hearing.  The guardian ad litem, by means of her report, recommended that Lyons have additional parenting time with the children to include extended time during school holidays and vacations and the month of July each summer.

            The parties reached agreement on all issues but the summer allocation of time.  After considering the evidence, the district court ordered on April 17, 2001, that Lyons would have four weeks of parenting time during the summer of 2001 in two separate two-week increments of time, and would have four consecutive summer weeks with the children beginning in the summer of 2002.

            On April 19, 2001, the district court denied Nyhammer’s motion for amended findings and attorney fees and awarded Lyons $500 in attorney fees based on Nyhammer’s attorney’s “abuse of the system.”  The court found that Nyhammer’s motion, “notwithstanding its propriety or lack thereof, is untimely and in violation of the time requirements and thus the rules.”

            On April 25, 2001, Nyhammer filed a notice of appeal from the April 17, 2001 order concerning the summer schedule and the orders of February 20, regarding discovery and Lyons’s student loan obligation, and April 19 award of attorney fees.

            We dismissed the portion of Nyhammer’s appeal related to the award of attorney fees to Lyons because judgment had not yet been entered.  Lyons then moved the district court to reduce the parties’ oral agreements to an enforceable order, for a finding that Nyhammer violated these agreements, to establish an exchange place for visitation, and for awards of compensatory visitation, out-of-pocket expenses, and attorney fees.

            The district court issued an order on July 2, 2001, determining that Lyons’s child support obligation was $709 per month based on the Minnesota Child Support Guidelines.  The court also appointed Marilyn Fawcett to serve as a parenting-time expeditor pursuant to Minn. Stat. § 518.1751 (2000).  The court denied all other motions regarding attorney fees and compensatory visitation.

            On August 7, 2001, the district court ordered judgment on its earlier award of attorney fees to Lyons.  Nyhammer then filed her second notice of appeal, challenging the July 2, 2001 order concerning Lyons’s child support obligation and the judgment awarding attorney fees.  Because Nyhammer’s two appeals were consolidated, we will address all of the issues.

D E C I S I O N

1.         Lyons’s child support.

           

Nyhammer argues that the district court erred by not making “express findings” concerning the factors listed in Minn. Stat. § 518.64, subd. 2 (2000), including the parties’ incomes prior to and at the time of Nyhammer’s motion.  Nyhammer contends that the court did not make the necessary finding of a substantial change in circumstances rendering the prior amount of support unreasonable and unfair.  Nyhammer asserts that the court also failed to include Lyons’s complimentary use of a corporate sport utility vehicle when computing his income and thus erred in determining Lyons’s child support obligation.  Finally, Nyhammer argues that the court should have increased Lyons’s monthly support obligation by an additional $165 to cover her potential liability for Lyons’s monthly student loan payment.

The district court has broad discretion to modify child support and its decision will not be reversed unless clearly erroneous.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  It is well settled that courts are required to make express findings on certain statutory factors pursuant to Minn. Stat. § 518.64 when considering a modification of child support.  Id. at 865.  Specifically, the court must find that there has been a substantial change in circumstances and if so, determine whether the change renders the current obligation unreasonable and unfair.  Olson v. Olson, 399 N.W.2d 660, 663 (Minn. App. 1987).  Even if the record otherwise supports the district court’s decision, failure to make these findings generally requires reversal.  Moylan, 384 N.W.2d at 865.

Here, it was not necessary to make a finding that a substantial change had occurred that made the existing child support obligation unfair or unreasonable because the parties agreed that Lyons’s child support payment should be increased.  The only dispute was with respect to the amount of the increase.  The court found that the parties agreed that Lyons’s child support obligation would be calculated in accordance with the Minnesota Child Support Guidelines in Minn. Stat. § 518.551, subd. 5 (2000), and the court’s order outlines its calculation of Lyons’s net monthly income of $2,364.64, resulting in a guidelines support obligation of $709 per month.

We conclude that the district court’s failure to make findings on the propriety of a child support modification is not error when the propriety of a modification is not disputed and the district court made findings to support its determination of the obligor’s net income. 

Nyhammer next argues that the findings the district court made with respect to Lyons’s net income are inaccurate because they fail to include the value of the use of a vehicle allegedly provided to Lyons free of charge by his employer.  But Nyhammer presented no evidence on this issue.  The only support for Nyhammer’s argument is her attorney’s allegations at a hearing and the inclusion of the argument in Nyhammer’s application for temporary relief.  In light of this record, we do not find that the court’s exclusion of this alleged non-cash benefit from Lyons’s income is clearly erroneous.  See Minn. R. Civ. P. 52.01 (stating that the court’s findings are reversed only if clearly erroneous); see also State ex rel. Sime v. Pennebaker, 215 Minn. 75, 77, 9 N.W.2d 257, 259 (1943) (disregarding affidavit of counsel as containing “nothing of evidentiary worth” and “founded upon mere hearsay” when it addressed facts of case).

Nyhammer’s final contention on the issue of the child support award relates to Lyons’s student loan payment.  Nyhammer contends that the support amount should be increased by $165 per month to reimburse her for her potential liability for the debt.  “[W]here a child support obligor’s discharge in bankruptcy negatively affects the obligee’s financial circumstances, the obligee may seek modification of child support * * * .”  Marden v. Marden, 546 N.W.2d 25, 27 (Minn. App. 1996). 

In Marden, the court found that the former wife could receive an increase in the support obligation where the former husband discharged his debts in bankruptcy, leaving the wife responsible for the monthly $500 payment.  Id.  We have also held in other cases that a spouse can be protected when faced with paying a former spouse’s discharged obligations.  See Coakley v. Coakley, 400 N.W.2d 436, 441 (Minn. App. 1987) (permitting modification to obligation amount where obligor shifted his debts to obligee via bankruptcy); see also Foster v. Childers, 416 N.W.2d 781, 785-86 (Minn. App. 1987) (disallowing the obligor from using bankruptcy to shift his obligation to pay obligee’s attorney fees).

In all of these cases, we ruled that the obligor’s discharge of the debt “negatively affected” the obligee’s financial circumstances when the obligee became responsible for paying the debt.  Here, the district court found that “[Lyons] took all necessary steps to clarify with the loan creditors that he was the one responsible for full payment of the loan obligations.”  This finding is supported by an agreement between Lyons and his creditor in the record that states that, despite his bankruptcy, Lyons will continue to make the loan payments.  Although Nyhammer concedes that she has never made any loan payments, Nyhammer argues that she would be responsible if Lyons failed to make payments and that the support should be increased to cover this potential liability.  But because the debt obligation has never shifted to Nyhammer in the sense that she has been required to make payments, her finances have not been “negatively affected.”  The district court’s decision to exclude the loan payment from the child support calculation was not an abuse of discretion.

2.         Discovery.

           

            Lyons and his wife file separate tax returns.  Lyons produced copies of his tax returns for 1995-1999 and pay stubs for 2000 and submitted to a deposition.  Nyhammer argues that the district court erred in denying her requests to discover Lyons’s wife’s finances because Lyons’s modest income does not correlate with his busy chiropractic practice and, therefore, he must be concealing income through his wife and the business. 

The district court has wide discretion to grant or deny discovery requests and this court will not overturn those decisions unless there is a clear abuse of discretion.  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Minn. Stat. § 518.64, subd. 2(c)(1) (2000), provides that courts should not consider the finances of a party’s spouse when determining if a support obligation should be modified.  But courts are allowed to impute income to a party if it finds that the party is voluntarily underemployed.  Minn. Stat. § 518.551, subd. 5b(d) (2000).  In addition, courts are permitted to use a party’s earning capacity when they find that it is impracticable to determine the party’s actual income or that the stated income is unjustifiably self-limited.  Devault v. Waller, 494 N.W.2d 92, 94 (Minn. App. 1992); County of Morrison v. Watland, 448 N.W.2d 71, 74 (Minn. App. 1989). 

            Nyhammer’s motion did not allege that Lyons had other sources of income.  Her argument was based on the allegation that Lyons should be making more money by this point in his chiropractic practice.  Lyons disputed this allegation throughout the proceedings.  Because we leave credibility determinations to the district court, we cannot say that it was clearly erroneous to find that Lyons’s testimony with respect to his income was more credible than Nyhammer’s speculation.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to the district courts on matters of credibility).  Further, the record supports the district court’s findings on this issue.  As a result, we do not find that the court abused its discretion by denying Nyhammer’s requests for discovery of the financial records of Lyons’s wife or the corporation.

3.         Lyons’s visitation rights.

 

Nyhammer does not object to the court’s decision with respect to the total number of weeks for Lyons’s summertime visitation.  Instead, she contests the award of four consecutive summer weeks beginning in 2002.  Nyhammer argues that it is not in the best interests of the children to have such extended time with Lyons and asserts that it is unlikely Lyons will make effective use of this time, given his full-time work schedule.

This court will not reverse a district court’s decision on visitation rights unless there is a clear abuse of discretion.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  Nyhammer’s objections to the modification of visitation are not supported by the record and her suggestion that the children will be harmed in some way by being with their father for four consecutive weeks is contrary to the guardian ad litem’s conclusions.  The court did not abuse its discretion in its determination of visitation.

4.         Nyhammer’s request for attorney fees.

 

            The district court consistently denied Nyhammer’s requests for attorney fees and, in fact, found that “the never-ending return to the courthouse by [Nyhammer] is an abuse of the system.”  Nyhammer argues the court erred by denying her need-based request for fees because she earns little income as a full-time student and Lyons earns a great deal.  She also alleges that an award of conduct-based fees was appropriate because it is Lyons who contributed unreasonably to the length of the case by being evasive and deceitful.

            A district court has considerable discretion to grant or deny attorney fees and it will not be overturned unless it clearly abuses its discretion.  Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).  After our review of this extensive record, nothing suggests that the district court was unreasonable in denying Nyhammer’s request for fees.  Although Nyhammer claims that Lyons’s evasiveness led to the unreasonable delay, the district court concluded that Nyhammer’s numerous motions caused the delay in this case.  Nyhammer speculates about Lyons’s financial resources, but provided no evidence to the court that she lacks the resources to pay her own fees other than her statement that she is a full-time student.  Thus, we conclude that the court was within its discretion in denying her requests for attorney fees.

5.         The award of attorney fees to Lyons.

 

After finding that “the never-ending return to the courthouse by [Nyhammer] is an abuse of the system,” the district court ordered Nyhammer’s attorney, Lynette Bledsaw, to pay Lyons $500 in attorney fees.  Nyhammer argues the court erred by doing so because all of her motions and other filings were supported by the law and made in good faith.

A district court has considerable discretion to grant or deny attorney fees and it will not be overturned unless it clearly abuses its discretion.  Jensen, 409 N.W.2d at 63.  Because the district court is uniquely situated to observe the parties’ conduct, we defer to the district court’s determinations on these matters unless they are unsupported.  Anderson v. Lindgren, 360 N.W.2d 348, 353 (Minn. App. 1984).  Given the plethora of motions and challenges by Nyhammer to virtually all of the district court’s decisions in this matter, we cannot say that the district court abused its discretion in awarding these attorney fees.

6.         Amended findings.

 

            Nyhammer also argues the district court erred by concluding that her motion for amended findings was untimely when she filed it on the 33rd day after being served with notice by mail.  See Minn. R. Civ. P. 52.02 (stating that motions to amend must be filed within the time allowed for motions for a new trial, which in this case Minn. R. Civ. P. 59.03 and Minn. R. Civ. P. 6.05 set at 33 days).  We agree.  But Nyhammer’s motion for amended findings presented the same issues that form the basis for this appeal, i.e., discovery matters, Lyons’s support obligation, and attorney fees.  Thus, while we agree the district court erred by finding that Nyhammer’s motion was untimely, reversal on this basis is not required because we have addressed all of the arguments Nyhammer raised in that motion. 

7.         Lyons’s brief and appendix.

            Finally, Nyhammer argues that portions of Lyons’s brief and appendix violate Minn. R. Civ. App. P. 130.02 by including materials that were not before the district court.  She contends that both the brief and appendix include more than “only those omitted items” from her filings.  Both Nyhammer and Lyons ask for attorney fees incurred with this motion.

            Minn. R. Civ. App. P. 130.02 permits Lyons to include relevant pleadings, motions, orders, etc., in his appendix if Nyhammer fails to do so.  Here, Lyons’s appendix contains relevant documents that Nyhammer did not include in her appendix, including several motions, affidavits, and orders of the district court.  Lyons’s brief is properly responsive to the arguments raised by Nyhammer.  Nyhammer’s motion to strike and both parties’ requests for attorney fees are denied.

            Affirmed; motion denied.