This opinion will be unpublished and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:

Dawn Kelli Young,






John Henry Young,




Filed June 4, 2002

Affirmed in part and reversed in part
Klaphake, Judge


Ramsey County District Court

File No. F8952630


Susan Gaertner, Ramsey County Attorney, Kristi Swanson Wendorff, Assistant County Attorney, 415 Government Center West, 50 West Kellogg Boulevard, St. Paul, MN  55102 (for respondent)


Dawn Kelli Young, 4971 Campbell Avenue, White Bear Lake, MN  55110 (respondent pro se)


William L.H. Lubov, Farhan Hassan, 820 North Lilac Drive, Suite 210, Golden Valley, MN  55422 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Hanson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant John Young moved for a reduction in his child support obligation, claiming that Ramsey County[1] improperly used overtime pay in determining his net monthly income. The district court denied appellant’s modification motion and ordered appellant to pay attorney fees to the county.  Because the district court did not abuse its discretion in refusing to modify appellant’s support obligation, we affirm.  But because there is insufficient evidentiary support in the record for an award of bad-faith attorney fees, we reverse the district court’s award of attorney fees.


            The district court has broad discretion to decide support modification issues and will be reversed only if its decision is against “logic and the facts on [the] record.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quotation omitted).  “Whether a source of funds is income for purposes of determining a person’s child support obligation is a question of law.”  Sherburne County Soc. Serv. on Behalf of Schafer v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992) (citation omitted).  The award of attorney fees pursuant to Minn. Stat. § 518.14, subd. 1 (2000), is a matter within the discretion of the district court and will not be reversed absent an abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

I.  Modification

            Appellant argues that the county improperly used overtime pay to calculate his net monthly income, thus inflating the amount of his support obligation.  On a modification motion, overtime compensation is excluded from income, if a party demonstrates, and the court finds, that:

(i)the excess employment began after entry of the existing support order;

(ii)the excess employment is voluntary and not a condition of employment;

(iii)the excess employment is in the nature of additional, part-time employment, or overtime employment compensable by the hour or fractions of an hour;

(iv)the party’s compensation has not been changed for the purpose of affecting a support or maintenance obligation; 

(v)in the case of an obligor, current child support payments are at least equal to the guidelines amount based on income not excluded under this clause[.]


Minn. Stat. § 518.64, subd. 2(c)(2) (Supp. 2001).

            Appellant has demonstrated all but the first factor.  The record before the district court indicates that appellant regularly earned overtime pay before entry of the current support order, although his overtime pay was not used to calculate the original support order.  The real issue, then, is whether the county can use his overtime pay to set the current support amount and whether the district court may now use the receipt of overtime earnings to support its denial of a reduction. 

            The district court may consider overtime pay when modifying, or refusing to modify, a support obligation if the record shows that the overtime income predated the support obligation by more than two years, even where the original judgment did not use overtime income to set the amount of support.  Johnson v. Johnson, 533 N.W.2d 859, 863-64 (Minn. App. 1995).  If a support obligor demonstrates that overtime income has increased since the dissolution, the court may prorate the overtime income to exclude that portion representing a post-dissolution increase.  Id. at 864.  Appellant, however, did not raise this issue before the district court, and thus may not now raise it for the first time on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Because there is evidence in the record to determine appellant’s income as including regular overtime, the district court did not abuse its discretion by failing to modify appellant’s support obligation.

II.  Attorney Fees

            Appellant contends that the district court abused its discretion by ordering him to pay $500 to the county in “bad faith attorney fees” because his motions were “found to be both factually and legally groundless.”  In particular, the court cited appellant’s motion to change visitation transportation, which the court had previously denied on September 1, 2000, and his motion to suspend his child support obligation during the six-week period of summer visitation.  Although the county provided representation on the support issue, respondent Dawn Young appeared pro se on the transportation issue and summer support obligation.

            In dissolution proceedings and related actions, an award of fees may be based on Minn. Stat. § 518.14, subd. 1 (2000).[2]  The district court must either make findings that the fees are need-based, which is not the case here, or that a party has “unreasonably contribute[d] to the length or expense of the proceeding.”  Id.  These conduct-based fees must be based on behavior occurring during the litigation and the court must identify the specific conduct on which it bases the fees.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).  Fees awarded for such conduct are made in the district court’s discretion.  Id. 

            The district court described appellant’s motion for transportation costs as “bad faith” and the motion for a suspension of support as “disingenuous and deceptive.”  The court, however, awarded these fees to the county, which did not represent respondent on those motions.  Moreover, although we affirm the district court’s denial of appellant’s modification motion, we conclude that appellant brought the motion in good faith.  The district court did not include findings that appellant’s motion contributed to the length or cost of the proceedings, the standard for imposition of attorney fees under Minn. Stat. 518.14, subd. 1.  We therefore reverse the district court’s award of attorney fees.

            Affirmed in part and reversed in part.


[1] Ramsey County is involved in this case to enforce appellant’s support obligation.  Under the terms of the judgment, appellant’s support obligation automatically increased as his support obligations for two other children from two other relationships ceased.  The county used the formula in the judgment to set the level of support after the emancipation of each of the older children.


[2] An award of bad-faith attorney fees may also be made as sanctions under Minn. Stat. § 549.211 (2000) or Minn. R. Civ. P. 11.  In either case, however, the court must hold a hearing on the award of fees, which did not occur here.