This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rebecca Marie Cary-Hill, petitioner,
Michael Gene Cary,
Filed February 18, 2002
Carlton County District Court
File No. FX-92-000909
Rebecca Marie Cary-Hill, 136 W. Harney Road, Esko, MN 55733 (pro se appellant)
Michael Gene Cary, 1424 Highland Avenue, Cloquet, MN 55720 (pro se respondent)
Considered and decided by Randall, Presiding Judge; Peterson, Judge; and Willis, Judge.
Appellant Rebecca Cary-Hill challenges the district court's denial of her requests for a change in parenting time and child support for the parties' minor child. Because we find that the district court did not abuse its discretion, we affirm.
Appellant Rebecca Cary-Hill and respondent Michael Cary ended their 15-year marriage in 1992. At the time, the parties had two minor children. They voluntarily entered an agreement by which they were to have joint legal custody of the children. Appellant was the children’s "primary physical custodian," but respondent had liberal rights to parenting time, and was to have physical custody of the children approximately half the time. Respondent paid $323.34 per month in child support. This amount, an acknowledged departure from the Child Support Guidelines, was based on the assumption that each parent would have physical custody of the children about half the time. Appellant claimed the tax deduction for the older child and respondent for the younger. Finally, respondent maintained medical insurance for the children, and the parties divided any non-covered costs equally.
On August 23, 2000, respondent filed a motion to reduce or modify his child-support obligation, based on the fact that the parties' older child was 18 years old and emancipated. A child-support magistrate applied the Hortis/Valento formula and determined that, because the parties had equal-time custody of their remaining minor child, respondent's child-support obligation should be reduced by half to $138 per month (including cost-of-living adjustments). Respondent was ordered to continue medical insurance for the child. Appellant petitioned the district court for review of this decision, and the district court affirmed.
Appellant then brought her first appeal to this court, arguing that the Hortis/Valento formula should not have been applied and that she should have been awarded the tax deduction for the minor child. Appellant further challenged the language regarding medical insurance.
This court affirmed the child-support determinations in an unpublished opinion and remanded for clarification of respondent's medical-insurance obligation. Cary-Hill v. Cary, No. C4-01-33, 2001 WL 766876 (Minn. App. Jul. 10, 2001).
On October 15, 2001, appellant petitioned for a modification of child support, arguing that the minor child had been spending nearly all of his time in her home since August, only visiting his father every other weekend. This, she argued, substantially increased her child-related expenses and, therefore, her need for more child support. Respondent filed a motion for visitation assistance, asking the court to order appellant to comply with the previous agreement and allow the child to spend more time with his father.
After a hearing on the child-support issue, the magistrate noted that the parties agreed that the child was no longer spending half of his time with each parent, and determined that child support should not be modified until the visitation issue had been resolved. A guardian ad litem was appointed for the child, and the parties worked through the guardian to plan visitation time through the holiday season of 2001.
On January 29, 2002, appellant filed a new motion to formally modify visitation and to increase child support accordingly. The child had transferred from one school district to another, and appellant argued that it was the child's wish to spend only every other weekend with respondent, rather than alternating weeks, as had been the practice since the parties' divorce. Appellant requested that respondent be required to pay full, guideline-level child support retroactive to August 2001, when the child began living with her full-time, and that the visitation order be modified to reflect the circumstances. Appellant also requested the tax deduction for the child, help with her attorney fees, and an order forcing respondent to comply with his medical-support obligation.
After a February 14, 2002 hearing and the submission of numerous affidavits by both parties, the district court held an in camera interview with the child on June 10, 2002. This interview was not recorded, and neither the parties nor their counsel were present. The parties' absence was by consent. On July 29, 2002, based on all the parties' affidavits, the record, and the interview with the child, the district court issued an order denying appellant's requests to modify parenting time and child support. This appeal follows.
Appellant argues that the district court abused its discretion by denying her requests to modify visitation and child support. Appellant claims that the court failed to properly consider the best interests of the child, including his own wishes, and that it failed to rule on the tax deduction, attorney fees, and medical- support issues.
This court generally reviews a district court's rulings on visitation for an abuse of discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). The district court's factual findings, on which the visitation decision is based, will be upheld unless clearly erroneous. Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978). The failure to make specific findings does not necessitate a remand if the findings are implicit in the decision and show consideration of the relevant factors. See, e.g. Lees v. Lees, 404 N.W.2d 346, 351 (Minn. App. 1987).
Here, appellant asserts that it was the child's wish to change the visitation schedule. Appellant submitted a letter written by the child and letters from the guardian ad litem to support this argument, and asserts that the court failed to consider the child's wishes. We disagree. By consent, the district court held a closed, in camera interview with the child. Because we do not have a record of this interview, we cannot determine that the district court's decision was contrary to the child's wishes. The record is clear that the child wished to hold the interview privately and that appellant's counsel requested that both parties be barred from the courthouse the day of the interview. The district court specifically found that it was in the child’s best interests to maintain the visitation schedule he had followed for ten years and to spend a reasonable time with his father. This finding is not against the child's wishes, and, on this record, is not erroneous. The district court did not abuse its discretion in denying appellant's request to modify the visitation order.
As with visitation determinations, this court reviews a district court's decision not to modify child support for abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). A district court abuses its discretion when it reaches "a clearly erroneous conclusion that is against the logic and facts on [the] record." Id. (quotation omitted) (alteration in original).
Appellant argues that, because the child has been living with her full-time, her bills have increased considerably and respondent should pay full child support. Respondent’s current obligation was calculated using the Hortis/Valento formula, was based on the child's spending approximately half his time with each parent, and has already been affirmed by this court. Since the district court did not abuse its discretion by refusing to modify visitation, the child will continue to spend approximately half his time with each parent. Thus, the child-support amount remains appropriate. The district court did not abuse its discretion in denying appellant's request to modify child support.
Appellant argues that the district court failed to rule on her requests for attorney fees, for receipt of the tax deduction for the child, and for an order compelling respondent to comply with his medical-support obligations.
In family court matters, the district court has very wide discretion in determining whether to award attorney fees to either party, and this court will not disturb such a decision absent an abuse of discretion. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).
Minnesota statutes provide two ways that a party may receive attorney fees in a family court proceeding. Under Minn. Stat. § 518.14, subd. 1 (2002), the court shall award attorney fees if it finds that (1) the fees are necessary to continue the proceeding in good faith, (2) that the party to pay attorney fees has the means to pay them, and (3) that the requesting party does not have the means to pay the fees. Alternatively, the court may award attorney fees against a party "who unreasonably contributes to the length or expense of the proceeding." Id. Here, the court made no findings addressing either of these bases for awarding fees. Appellant made only a general request for respondent's "contribution" to her attorney fees in an affidavit to the district court. Appellant did not specify what amount was necessary, nor did she cite specifically to statute, rather alleging generally that she lacked the resources to pay her attorney fees and that respondent did have the means to contribute. See Geske v. Marcolina, 624 N.W.2d 813, 816-19 (Minn. App. 2000) (addressing proper procedure for seeking attorney fees under Minn. Stat § 518.14, subd. 1). Appellant’s attorney did not argue for attorney fees at the February 14 hearing, and no further request was made to the district court. In her appellate brief, appellant argues that respondent unreasonably delayed the proceedings and cites section 518.14, but she did not make this argument to the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating party may not argue an issue on appeal based on a theory not presented to district court). Based on this record, the district court did not abuse its discretion by not specifically deciding an issue that was, at best, "maybe," informally before it.
Appellant also asked that the district court transfer the tax deduction for the child to her, a change from the dissolution decree, which awarded it to respondent. Appellant requested the transfer because the child was spending more time with her, thus increasing her expenses. As discussed above, the court denied appellant's requests to modify visitation and child support, instead ordering that the child should continue to spend half his time with each parent. Both parties argued the tax-deduction issue at the February 14 hearing, and the judge asked a number of clarifying questions. The court stated in its ultimate order that "these parents' support agreement should not change from month to month or year to year." Although the order did not specifically address the tax deduction, it implicitly denied appellant’s request in concluding that the visitation and child-support issues were best left unchanged and in accordance with the original decree. In effect, the district court left the income-tax deduction where it was before the hearing.
Finally, the order did not address appellant’s request for relief regarding respondent’s medical-support obligation. Appellant argued to the court that respondent was neglecting that obligation by failing to make payments on time or refusing to make payments at all. At the February 14 hearing, the judge asked several questions about the issue, and stated that it understood the issue to be more about timing than actual payment. In fact, appellant's attorney admitted at the hearing that respondent did make payments. The court suggested that perhaps respondent's tardiness could be ascribed to the fact that before respondent's obligation could be calculated, the insurance company had to process the claim. The court stated correctly that respondent is unable to "say no" to medical-support obligations under the parties' agreement. The record shows that the district court did consider this issue. We do not remand simply because the district court did not make an explicit finding. Respondent's burden for medical payments remains the same and, as the district court pointed out, is enforceable.