This opinion will be unpublished and

may not be cited except as provided by

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








In re:

James Guy Winters, Jr., petitioner,





Catherine Pauline Winters,



Filed September 16, 2002

Affirmed in part and remanded in part

Robert H. Schumacher, Judge


Hennepin County District Court

File No. DC244219



Jo Lynn Isaacson, Wellner & Isaacson, PLLP, 2E South Pine Drive, Circle Pines, MN 55014 (for respondent)


Lawrence D. Olson, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, Roseville, MN 55113 (for appellant)


Considered and decided by Stoneburner, Presiding Judge, Schumacher, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N


In this child support dispute, appellant Catherine Pauline Winters (mother) argues that the district court (a) failed to make findings to support the sub-guideline support obligation of respondent James Guy Winters Jr. (father); (b) over-emphasized the parties' prior support stipulation; (c) should not have dismissed her request to address the dependency exemption as untimely where the support issue was properly before the district court; and (d) claims she should have been awarded need-based attorney fees under Minn. Stat. § 518.14, subd. 1 (2000).  We affirm in part and remand in part.


Father and mother had been married for 16 years.  The marriage was dissolved, when they were ages 35 and 34 respectively, on November 8, 1999.  In the dissolution, the parties stipulated to their incomes and expenses, as well as maintenance and child support.  Pursuant to the parties' agreement, the district court awarded joint legal custody and sole physical custody of the parties' two children, then 16 and 13, to father.  The court found that father's approximate net monthly income was $2,539 and his reasonable monthly expenses were $2,966, and that mother's monthly income and reasonable expenses were $1,618.61 (including tip income) and $1,900 respectively.  No spousal maintenance was awarded, and the parties included in their stipulation a waiver of the district court's ability to modify  maintenance.

Pursuant to the parties' stipulation, the court reserved the issue of child support and ordered that mother not pay child support unless father's yearly income dropped below $40,000.  The court also ordered that, if custody were later changed and the parties had "similar financial circumstances," father's monthly child support obligation would be capped at $600 for two children and $450 for one child.  The court noted that consideration for this cap was "supported by [father's] claim that he may be entitled to child support" but also noted that mother never acknowledged any such obligation.

On October 19, 2001, when the children were ages 18 and 15, mother served a motion requesting that she be granted physical custody, child support retroactive to June 6, 2001, attorney fees, and costs.  Father did not oppose the change in custody but requested that the court uphold the parties' previous child support agreement.  Father also requested fees and costs.

The court originally scheduled the motions to be heard on December 4, 2001, but rescheduled the hearing to December 19, 2001.  Mother served by facsimile an amended notice of motion, motion and an unsigned supplemental affidavit after business hours on December 6, 2001.  The next day, she served the fully executed documents.  She filed them with the court on December 10, 2001.  In these motions, mother requested that she be awarded the tax exemptions and that father be sanctioned if he failed to follow a proposed parenting schedule.  Father then submitted a supplemental affidavit regarding these issues.

On January 11, 2002, the district court issued an order, striking mother's amended notice of motion and motion as untimely and excluded the parties' supplemental affidavits as beyond the scope of the original motions.  The court then awarded a change in custody, subject to reasonable visitation.  The court found that application of the guidelines would result in father paying $975 in monthly child support but nevertheless found that there was no sufficient change in circumstances.  The court then awarded monthly child support at the stipulated maximum, $600 until June 2002, and $450 thereafter.  The court awarded mother $2,400 in back child support from October 1, 2001 to January 31, 2002.  The court also denied all motions regarding attorney fees and costs.  This appeal followed.


1.            Mother argues that the district court should not have limited its award of child support to the terms of the parties' original agreement.  When a dissolution judgment reserves support, the subsequent establishment of support is deemed an initial setting of support rather than a modification of an existing support obligation.  Davis v. Davis, 631 N.W.2d 822, 827 (Minn. App. 2001); see also McNattin v. McNattin, 450 N.W.2d 169, 171 (Minn. App. 1990) (noting general rule in case where custody had been modified, but concluding that "unusual facts" of that case rendered general rule inapplicable).  Therefore, setting support after a reservation does not require a showing of substantially changed circumstances under Minn. Stat. § 518.64, subd. 2 (Supp. 2001)[1]Davis, 631 N.W.2d at 827. 

A district court's setting of support will not be altered on appeal unless the district court abused its broad discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  "Determining a support obligation is generally a function of the obligor's net monthly income."  Bormann v. Bormann, 644 N.W.2d 478, 482 (Minn. App. 2002) (citing Minn. Stat. § 518.551, subd. 5(b) (Supp. 2001)).  Here, mother challenges the findings regarding father's net income, alleging that the district court should have considered father's income tax returns, not just his paycheck stubs and tax table calculations.  But Minn. Stat. § 518.551, subd. 5(b) specifically "recommend[s]" using tax tables and standard deductions to calculate net income for support purposes.  Because the district court did so, mother has not shown that the district court used an improper method of accounting for father's taxes. 

The district court found that father's guideline child support obligation would be $975 per month.  Consistent with the parties' stipulation, however, the district court set father's monthly support obligation at $600. 

If the court deviates from the guidelines, the court shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in [Minn. Stat. § 518.551, subd. 5 (c) (Supp. 2001)] and how the deviation serves the best interest of the child.  The court may deviate from the guidelines if both parties agree and the court makes written findings that it is in the best interests of the child, except that in cases where child support payments are assigned to the public agency under section 256.741, the court may deviate downward only as provided in [Minn. Stat. § 518.551, subd. 5(j) (Supp. 2001)].  Nothing in this paragraph prohibits the court from deviating in other cases.  The provisions of this paragraph apply whether or not the parties are each represented by independent counsel and have entered into a written agreement. 


Minn. Stat. § 518.551, subd. 5(i) (Supp. 2001). 

            Here, in setting father's support obligation at the sub-guideline amount of $600 per month, the district court gave no indication that it considered anything other than the parties' stipulation.  "Courts [are not] bound by an agreement between parents affecting the rights of minor children with respect to support but will be controlled by the welfare of the child as the paramount consideration."  Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1972) (citations omitted).

It is unclear whether the stipulation to a sub-guideline support obligation is in the children's best interests.  The district court did not make findings supporting the substantial guidelines departure from the perspective of the children's best interests.  Therefore, we remand the support question for the district court to address whether the stipulated support obligation is in the children's best interests and to make findings explaining its determination including, if necessary, findings on the parties' expenses. 

2.            Mother admits that her amended motion seeking the tax dependency exemptions was untimely.  Without citing any authority, she then alleges that tax dependency exemptions are "aligned with child support" and therefore that a separate motion or request for relief regarding the dependency exemptions was not required and hence that the district court erred by not considering which parent should get the dependency exemptions.

Tax dependency exemptions are "aligned with child support and may be modified upon a showing of" substantially changed circumstances under Minn. Stat. § 518.64, subd. 2 (Supp. 2001).  Biscoe v. Biscoe, 443 N.W.2d 221, 224 (Minn. App. 1989).  Modification of tax dependency exemptions, however, can require consideration of factors in addition to those involved in modifying support.  Compare Minn. Stat. § 518.64, subd. 2 (addressing, among other things, modification of support) with Biscoe, 443 N.W.2d at 224-25 (noting waiver by custodial parent required if dependency exemption is to be taken by noncustodial parent).  Moreover, before mother made her amended motion, nothing in the court files indicated that she sought relief on the question of the tax dependency exemptions.  Accordingly, the district court did not err in not addressing the tax dependency exemptions. 

3.            Mother argues the trial court should have awarded her attorney fees because "clearly [father] is in a much better financial condition" than she is.  To recover need-based attorney fees in family law matters requires the party seeking fees to show that the fees are necessary for a good faith assertion of rights, that the party seeking the fees needs them, and that the other party has the ability to pay them.  Minn. Stat. § 518.14, subd. 1 (2000).  Merely alleging (or actually showing) that one party is simply in "better" financial condition than the other party does not satisfy the statutory requirements.  Whether to award need-based attorney fees in a family law matter is discretionary with the district court.  Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987).

Here, the district court found that "both parties are financially able to pay their own attorney fees."  Mother notes the discrepancy in the parties' incomes and asserts that the evidence cannot justify this finding.  As noted, however, merely showing one party to be in "better" financial condition than the other is inadequate to satisfy the statutory requirements for a need-based fee award under Minn. Stat. § 518.14, subd.1.  Moreover, mother has not shown that the finding that she is able to pay her own attorney fees is clearly erroneous.  Therefore, the statutory prerequisites for an award of need-based attorney fees were absent and the district court did not abuse its discretion by not awarding mother need-based attorney fees. 

Affirmed in part and remanded in part.

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

[1] Mother sought support as part of her motion that resulted in her being awarded physical custody.  "[A] change in physical custody is normally a change of circumstances that makes an original support order unreasonable and unfair."  Buntje v. Buntje, 511 N.W.2d 479, 481 (Minn. App. 1994).  Therefore, even if the substantially changed circumstances requirement in Minn. Stat. § 518.64, subd. 2 were applicable here, it would have been satisfied.