This opinion will be unpublished and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

C8-01-2108

 

In re: Jean Ann Geske,

f/k/a Jean Ann Marcolina, petitioner,

Respondent,

 

vs.

 

Jeffrey Alan Marcolina,

Appellant.

 

Filed June 4, 2002

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. DMF9942321

 

 

Amy Yanik Meisel, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for respondent)

 

Jeffrey A. Marcolina, 917 Palace Avenue, St. Paul, MN 55102 (Pro se appellant)

 

            Considered and decided by Schumacher, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.

U N P U B L I S H E D  O P I N I O N

 

TOUSSAINT, Chief Judge

            In this on-going child support and visitation litigation, pro se appellant Jeffrey Marcolina disputes the referee’s attorney-fee award to respondent Jean Geske.  In February 2000, the referee ordered appellant to pay respondent $10,000 in attorney fees pursuant to Minn. Stat. § 518.14 (2000).  In April 2001, this court remanded for more specific findings.  In October, the referee reiterated the fee award, with specific findings, and added $4,000 in fees for the appeal.  Because the award is supported by the record, we affirm. 

D E C I S I O N

Findings of fact shall not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  “The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court.”  Id.  That the record might support findings other than those made by the district court does not show that the findings are defective.  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).  Where the findings necessary for a legal conclusion are adequately supported, a court’s inclusion of other unsupported findings is harmless error.  Hanka v. Pogatchnik, 276 N.W.2d 633, 636 (Minn. 1979). 

In proceedings under Chapter 518, the court shall award attorney fees if the (1) fees are necessary for a good-faith assertion of a party’s rights in the proceeding; (2) party from whom fees are sought can afford to pay; and (3) party who seeks fees cannot afford to pay them.  Minn. Stat. § 518.14, subd. 1 (2000).  The court may also award additional fees against a party who unreasonably contributes to the length or expense of the proceeding.  Id.  The court must identify the basis for its award because fee awards may be based on need, conduct, or both.  Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001).  A fee award on remand for lack of adequate findings may include fees incurred on appeal.  Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991).  Fee awards under section 518.14 rest “almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999). 

Appellant initially argues that the referee should have excluded additional evidence by affidavit on remand.  This court, however, expressly left it to the district court’s discretion whether to reopen the record.  Geske, 624 N.W.2d at 820.  Moreover, a district court may resolve conflicts in evidence presented by affidavit, and the rule that on appeal evidence must be viewed in the light most favorable to the prevailing party applies to evidence presented by affidavit.  Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959).  Appellant also objects to the referee’s adoption of respondent’s proposed order.  But a court’s verbatim adoption of proposed findings is not by itself improper if the record supports the findings and shows that the court conscientiously considered all the issues.  Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  The referee found that the additional information in the affidavits was consistent with and clarified existing evidence.  Further, appellant never moved for district court review of the referee’s determinations or for amended findings, which necessarily limits our review.  See Warner v. Warner, 391 N.W.2d 870, 873 (Minn. App. 1986) (stating that parties are ill-advised to bypass district court review, because doing so reduces this court’s scope of review to examining whether the evidence supports the findings and whether the findings support the conclusions of law). 

Appellant disputes the referee’s findings on respondent’s 1999 income and expenses.  But appellant did not contest respondent’s income or expenses at the 1999 hearing.  Thus, appellant waived any objection to respondent’s income calculation.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that this court will not consider matters not argued and considered below).  Appellant also argues that respondent does not need help in paying attorney fees, but the referee found that respondent’s savings had been reduced because of attorney fees and that the $10,000 attorney-fee award did not cover all of respondent’s fees associated with the underlying litigation. 

Appellant contends that the referee failed to consider adequate 401K contributions, a monthly bankruptcy payment, and his own attorney fees or cost-of-living expenses in calculating his 1999 expenses.  But appellant cites no portion of the record showing that the referee underestimated his 401K contribution.  Moreover, the referee pointed out that appellant’s bankruptcy petition was dismissed for fraud and not included as an expense in the 1998 child support hearing.  And the referee did adjust appellant’s 1999 expenses for a seven percent cost-of-living increase—the same rate applied to respondent’s expenses. 

Appellant argues that he never had the opportunity to challenge the conduct-based fee award and that such fees are unsupported by the evidence.  But appellant replied to respondent’s affidavit in support of conduct-based fees.  Also, the referee specified that appellant failed to produce statements, a medical disclosure, and complete tax information, and appellant initially denied that his bankruptcy petition was dismissed for fraud.  Significantly, the referee found that appellant’s conduct independently justified half of the $10,000 attorney-fee award but did not add any extra fees to the total award.

            Appellant next argues that he should not have to pay respondent’s attorney fees for the appeal because he prevailed by securing a remand.  But attorney fees in Chapter 518 proceedings may be awarded based on need.  See Minn. Stat. § 518.14, subd. 1 (providing for an attorney-fee award for a good-faith assertion of a party’s rights, when the party seeking fees cannot afford to pay them and the party charged with fees can afford to pay them).  Significantly, the referee found that respondent’s appellate fees were $9,870, not including the remand, but awarded her only $4,000 of that amount.

            Finally, appellant argues that various findings are unsupported by the evidence.  Appellant has not shown that any of the referee’s alleged errors affected his ability to pay or respondent’s need.  See Hanka, 276 N.W.2d at 636 (stating that, where the findings for a legal conclusion are adequately supported, a court’s inclusion of other unsupported findings is harmless error).  Thus, the referee did not abuse her discretion in granting respondent $14,000 in attorney fees.    

            Affirmed.