This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re:


Craig Carney Cowell, petitioner,





Andrea Jane Cowell,



Filed November 26, 2002


Kalitowski, Judge


Ramsey County District Court

File No. F2982752


Mark Nygaard, Nygaard & Longe Law Office, 210 Ivy League Place, 475 North Cleveland Avenue, St. Paul, MN 55104 (for appellant)


Christine L. Stroemer, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from an order increasing his maintenance obligation, appellant Craig Carney Cowell argues that the district court:  (a) failed to make adequate findings addressing the necessary statutory factors and overstated respondent Andrea Jane Cowell’s reasonable monthly expenses; (b) failed to give adequate weight to the parties’ maintenance stipulation and overemphasized the increase in appellant’s income; (c) incorrectly ruled that appellant failed to request an evidentiary hearing; (d) should have terminated his support obligation retroactively to the date of his motion to modify custody; and (e) abused its discretion in awarding respondent need- and conduct-based attorney fees.  We affirm.



            Decisions on whether to modify spousal maintenance are within the broad discretion of the district court.  See Cisek v. Cisek, 409 N.W.2d 233, 235 (Minn. App. 1987).  A district court’s findings of fact regarding maintenance will be upheld unless clearly erroneous.  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). Appellant argues that the district court failed to make sufficiently specific findings on several of the factors in Minn. Stat. § 518.552, subd. 2 (2002), making review by this court improper.  See Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986).  Appellant also argues that the district court erred in finding that respondent’s monthly expenses as she submitted them were reasonable.  We disagree.

            In its November 19, 2001, order amending the dissolution decree, the district court made specific findings on:  (1) the parties’ respective current incomes and expenses and the reasonableness thereof; (2) their respective incomes at the time of dissolution; and (3) their current abilities to pay support and maintenance.  In the April 9, 2002, order denying appellant’s motion for a new trial and to amend the November 19 findings, the district court addressed each of its findings, explaining how they were reached and on what evidence.  These findings are sufficient to show that the district court considered the relevant statutory factors in reaching its conclusion.

            And the district court expressly found that the itemized expenses respondent presented were reasonable.  The court cited Bollenbach v. Bollenbach, 285 Minn. 418, 427,175 N.W.2d 148, 155 (Minn. 1970),to support its determination that respondent should be allowed to enjoy the same standard of living the parties enjoyed during their marriage.  The record provides sufficient support for the district court’s findings regarding respondent’s monthly expenses, and there is no “clearly erroneous decision that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  We therefore conclude that the district court’s findings are not clearly erroneous.


            Modification of a maintenance award requires the moving party to show:  (1) there has been a substantial change in circumstances as defined by statute; and (2) the change renders the original maintenance award unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  The statutory factors include the decreased or increased earnings of a party and a change in the cost of living for either party.  Minn. Stat. § 518.64, subd. 2(a) (2002).  Appellant argues that the district court abused its discretion in increasing his maintenance obligation by placing too little emphasis on the dissolution stipulation agreed to in 1999 and too much emphasis on the fact that appellant’s income has increased significantly since the time of the dissolution.  We disagree.

            The district court found that, at the time of the dissolution, the parties stipulated to the maintenance respondent was to receive based on appellant’s assertion that his income would not exceed $80,000-$85,000 per year.  Appellant is currently earning in excess of $100,000 per year.  The district court properly found that this meets the statutory requirement of a substantial change in the earnings of a party.  Further, the district court found that respondent is unable to meet her needs with the stipulated maintenance amount.  The change in appellant’s circumstances, combined with respondent’s continuing inability to meet her needs, makes the original dissolution decree unfair.

While the parties’ stipulation must be considered, it “does not operate as a bar to later consideration of whether a change in circumstances warrants a modification.” Hecker, 568 N.W.2d at 709.  The record shows that the district court did consider the stipulation, the statutory factors, and the current incomes, needs, and financial abilities of both parties in reaching its decision to increase appellant’s maintenance obligation to $2,300 per month.  The court specifically calculated the new award based on the monthly shortfall respondent suffered given her current expenses and the maintenance she received under the original decree.  On this record, we conclude that the district court did not abuse its discretion in modifying maintenance or in its calculation of the new award.


            Appellant argues that the district court committed clear error in ruling that he did not request an evidentiary hearing for his motion to amend custody and support.  Minn. Stat. § 518.64, subd. 2(f) (2002), expressly states that a court need not hold an evidentiary hearing on a motion for modification of maintenance or support.  However, if a party wishes to present oral testimony that will exceed the half-hour motion hearing, it may do so by following the procedures directed by Minn. R. Gen. Pract. 303.03(d) (2000).  The party must submit a written motion specifying the reason extra time is necessary, how much time is needed, and witness and exhibit lists.  Appellant merely stated in his motion that he demanded an oral hearing.  This demand would only be sufficient if appellant’s oral testimony could have been presented within the time constraints of a regular motion hearing.  But appellant made no attempt to call witnesses or present any evidence other than his attorney’s argument, nor was he denied the opportunity to do so.  We conclude the district court did not err or abuse its discretion by ruling that appellant failed to properly request an evidentiary hearing.


            After hearing argument by both parties, the district court terminated appellant’s support obligation as of November 1, 2001, rather than retroactively to the date of appellant’s motion to modify custody (August 31, 2001).  Appellant argues that the termination should have been made retroactive because the parties’ minor child moved full-time into his home at the end of August.

            This court reviews decisions regarding the modification of custody and child support for abuse of discretion.  Rutten, 347 N.W.2d at 50.  The district court determined that the child had not moved to appellant’s home with respondent’s permission.  Therefore, Minn. Stat. § 518.57, subd. 3 (2002), is not satisfied and cannot be used to relieve appellant of his support obligation.  Moreover, the district court determined that respondent had continued to incur expenses related to the child in the period between August 31 and November 1, which she needed child support to fund.  The court then found there was no allegation of endangerment pertaining to the support obligation.  Since respondent agreed to the change in custody at the November 7 hearing, the court found November 1 to be the appropriate termination date for appellant’s support obligation.  We conclude that based on the court’s findings, this decision was not an abuse of the court’s discretion.


            Finally, appellant argues that the district court erred in its decision to award respondent $2,000 in need-based and $800 in conduct-based attorney fees.  Under Minn. Stat. § 518.14, subd. 1 (2002), the district court has very broad discretion to award both types of attorney fees in family court matters, and the district court will only be reversed where there is a clear abuse of that discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). 

            As an initial matter, appellant argues that respondent’s motion for attorney fees was untimely.  Minn. R. Gen. Pract. 303.03(a)(2) (2000) requires that a responsive motion raising new issues be filed at least ten days before the hearing.  Respondent’s motion was filed nine days before the hearing, as the tenth day fell on a Sunday.  But whether or not the motion was untimely, the district court had discretion to accept the late filing absent a showing that it would prejudice appellant.  Minn. R. Gen. Pract. 303.03(b) (2000) allows the district court to take appropriate action upon receipt of a late filing.  Here, the court’s silence on the issue and the ultimate award, combined with the fact that appellant never alleged any prejudice as a result of the late filing, indicate that the court was within its discretion to accept the motion and award attorney fees.

            The court specified that $2,000 of the attorney fee award was need-based, because the court did not believe that, even with increased maintenance, respondent would be able to meet her monthly needs and pay her attorney fees.  The record indicates that the district court was aware of both parties’ financial situations when it calculated the award, and it was within its discretion to do so.

            The court also awarded respondent $800 in conduct-based attorney fees.  The court based this award on appellant’s submission of 43 requests for amendment and several new exhibits and affidavits to the court after the November 7 hearing.  This impermissible attempt to introduce new evidence caused unreasonable delay in the proceedings and forced respondent to incur further attorney expenses.  No showing of actual bad faith is necessary.  Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001) (while bad faith could amount to unreasonable delay, it is not necessary to an award of conduct-based attorney fees under section 518.14).  We therefore affirm the district court’s award of attorney fees.