This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-906
C3-02-1295

 

In re the Marriage of:
Julie S. Hahn, petitioner,
Respondent (C1-02-906),
Appellant (C3-02-1295),

vs.

Michael J. Hahn,
Appellant (C1-02-906),
Respondent (C3-02-1295).

 

Filed February 18, 2003

Affirmed; motion granted

Stoneburner, Judge

 

Hennepin County District Court

File No. DC215996

 

M. Sue Wilson, Lymari J. Santana, M. Sue Wilson Law Offices, P.A., Suite 150, Two Carlson Parkway, Minneapolis, MN 55447 (for respondent Julie Hahn)

 

David G. Newhall, Ann E. Kennedy, Lindquist & Vennum, P.L.L.P., 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant Michael Hahn)

 

††††††††††† Considered and decided by Stoneburner, Presiding Judge, Wright, Judge, and Mulally, Judge.*

U N P U B L I S H E D† O P I N I O N

STONEBURNER, Judge

 

The partiesí separate appeals from a post-dissolution order were consolidated.† Michael Hahn asserts that the district court abused its discretion by concluding that there has been a substantial change of circumstances making the original maintenance award unreasonable or unfair.† Julie Hahn asserts that the district court abused its discretion by not increasing her maintenance to the level of her current expenses, denying her request for child support for one child, and refusing to grant her request for attorney fees.† We affirm.

FACTS

 

The partiesí decree of dissolution is based on a negotiated settlement of the parties, both of whom were represented by counsel.† The decree was entered in March 1997.† Julie Hahn received cash and property totaling more than two million dollars.† A substantial portion of that amount was the value of stock in Kool Seal, Inc., a closely held corporation owned by Julie Hahn, her siblings, and her mother.† At the time of the settlement, Julie Hahn was receiving approximately $90,000 annually in dividend income from Kool Seal.† The decree required that Michael Hahn provide permanent maintenance in the amounts of $8,500 per month for three years and then $5,000 per month until Julie Hahnís death or remarriage.† The parties were awarded joint legal and physical custody of their two minor children, with equal parenting time.† Pursuant to the settlement and decree, neither party paid child support to the other.† Michael Hahnís income is such that his ability to pay maximum child support and requested maintenance has never been an issue.†

In early 2001, Kool Seal suspended dividend payments in order to finance acquisition of a new business.† Julie Hahn does not expect dividend payments to resume in the near future.† In August 2000, the partiesí older child began to live full-time with Julie Hahn.† In September 2001, Julie Hahn moved for an award of child support for the child residing with her, for an increase in maintenance, and for attorney fees.† Michael Hahn quickly agreed to pay maximum child support, but opposed the increase in maintenance.† In an amended motion, Julie Hahn added a request for child support for the partiesí younger child, asserting that the child was spending more than 50% of the time with her.† Michael Hahn opposed this motion, asserting that there has been no change in the parenting time for this child.† Pending the hearing on the motions, the parties had ongoing discovery disputes.† Julie Hahn asserts that Michael Hahn ďstonewalledĒ discovery efforts.† Michael Hahn asserts that he produced everything that he was required to produce and that inquiries about his income were not relevant.

After the hearing, the district court increased maintenance to $12,500 per month, an amount that compensates for Julie Hahnís loss of dividend income, denied Julie Hahnís request for child support for the younger child, and denied Julie Hahnís request for attorney fees.† Both parties appealed, and the appeals were consolidated.

 

D E C I S I O N

 

1. ††††††† Maintenance

The standard of review of a spousal-maintenance award is whether the district court abused its discretion.† Joneja v. Joneja, 422 N.W. 2d 306, 309 (Minn. App. 1988) (citing Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982)).

A trial court has wide discretion in determining spousal maintenance. * * * Each case must be decided on its own facts. * * * The basic issue is balancing the needs of the spouse receiving maintenance against the financial condition of the spouse providing maintenance.

 

* * * *

 

Where the original maintenance obligation was the result of a stipulation, appellate courts have held that upon a motion for modification the moving partyís burden becomes more difficult.

 

Id. at 309-310 (citations omitted).

††††††††††† Michael Hahn argues that because the parties stipulated to the amount of maintenance, the agreement cannot be modified.† We disagree.† A stipulated maintenance agreement does not completely limit the courtís authority and jurisdiction to modify maintenance unless the parties waived their right to seek modification pursuant to Minn. Stat. ß 518. 64 (2000).† Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981).† The agreement in this case does not contain such a waiver.† Although the existence of the stipulation increases Julie Hahnís evidentiary burden, authority to modify a maintenance award is not dependent on the existence of the stipulation, but on a proper showing of a substantial change in circumstances that makes the terms of the decree unreasonable and unfair.† Sand v. Sand, 379 N.W.2d 119, 125 (Minn. App. 1985); see Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn. App. 2000) (stating that absent language in the stipulation divesting district court of jurisdiction, court retains authority to consider if change in circumstances warrants modification).††

Julie Hahn produced evidence that she no longer receives a dividend distribution of $90,000 per year that the partiesí agreement specifically anticipated she would need to meet her monthly expenses.† Michael Hahn argues that fluctuation in the dividend income was foreseeable and therefore does not represent changed circumstances.† He also asserts that Julie Hahn could liquidate her interest in Kool Seal and invest in an annuity that would generate regular income.† The district court implicitly rejected these arguments, finding that the parties, at the time of the dissolution, expected Julie Hahn to receive† $90,000 annually.† The district court credited the testimony of Kool Sealís chief financial officer, who predicted ďno income in the near future.Ē

The district court found that Michael Hahnís increased income and Julie Hahnís increased expenses, (caused primarily by purchase of a home that needed extensive work) were not the kind of changed circumstances that made the original maintenance award unreasonable or unfair.† The district court reasoned that Michael Hahnís income was not a limiting factor in establishing the original maintenance award and that Julie Hahnís investment in her home is designed to increase the value of that asset. The district court found that, aside from the cost of home improvements, Julie Hahnís expenses have not significantly increased since the decree was entered.† But the district court also found that Julie Hahnís loss of $90,000 in income from Kool Seal, for at least the next few years, is a changed circumstance under Minn. Stat. ß 518.64 rendering the original maintenance award unreasonable and unfair.† There is evidence in the record to support the district courtís findings.† The findings are not clearly erroneous and the district courtís resolution of the maintenance issue is not an abuse of discretion.

Julie Hahn argues that after the district court determined that changed circumstances render the original award unreasonable and unfair, a maintenance award must be based solely on the enumerated factors in Minn. Stat. ß 518.552 subd. 2, and that the district court abused its discretion in this case by considering the partiesí negotiated settlement in arriving at the appropriate amount of the award.† We disagree.†

The statute requires the district court to consider ďall relevant factors,Ē including the factors specifically enumerated in the statute.† Minn. Stat. ßß 518.552, 518.64 subd. 2(c) (2002).† The district court appropriately viewed the stipulation fixing the respective rights and obligations of the parties as an important element because it represents the partiesí voluntary acquiescence in an equitable settlement.† Joneja, 422 N.W.2d at 310 (citing Claybaugh, 312 N.W.2d at 449 (Minn. 1981)).† The district court also specifically reviewed each statutory factor and concluded that setting maintenance at a level that would essentially replace the income that the partiesí had anticipated that Julie Hahn would receive from the Kool Seal distribution represents a ďjustĒ amount for the modified award.† See id. (stating maintenance order shall be in amounts as the court deems just, after considering all relevant factors).† Evidence in the record supports the district courtís findings of fact and the findings of fact support the district courtís exercise of its diescretion.

2.†††††††† Child support

This court will reverse a district courtís order regarding the modification of child support only if we are convinced that the court abused its discretion by making a clearly erroneous finding that is ďagainst the logic and the facts [on] the record.Ē† Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)).† Minn. Stat. ß 518.64, subd. 2 (2002), provides in relevant part:†

(a) The terms of an order respecting * * * support may be modified upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased * * * need of * * * the child; * * *

 

* * * *

 

(b) It is presumed that there has been a substantial change in circumstances under paragraph (a) and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if: (1) the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher * * * than the current support order.

Julie Hahn sought child support for both children, alleging a change of circumstances due to her loss of income from Kool Seal and a change in the amount of time the children are in her care.† Michael Hahn agreed to pay maximum child support for the partiesí daughter, who now resides with Julie Hahn, but opposed the request for child support for the partiesí son, asserting that his residence is shared between the parties pursuant to their original stipulation.†

The parties stipulated to the language in their decree of dissolution concerning child support:

Child Support.† Given the current income levels of the parties, the property settlement herein, the maintenance awarded herein, the non-marital resources of the parties, the award of joint legal and joint physical custody, and all of the other facts and circumstances known herein and considered by the Court, the Court concludes that each of the parties has ample resources with which to support the children while in their custody and therefore orders that neither party is obligated to pay child support to the other party.† If, at a later date, there should be a substantial change in circumstances with respect to either of the parties or the children, the amount and payment of child support may be revisited in accordance with the guidelines set forth in Minn. Stat. ß 518.551, subd. 5 and the formula set forth in Hortis v. Hortis, 367 N.W.2d 633 (Minn. Ct. App. 1985).

 

It is undisputed that Michael Hahnís income subjected him to maximum guideline support at the time of the decree.† See Minn. Stat. ß 518.551 subd. 5(a) (providing that guideline support for an obligor with a monthly income in excess of the income limit†††††† * * * shall be the same dollar amounts as provided for in the guidelines for an obligor with a monthly income equal to the limit in effect).† Any increase in Michael Hahnís income would not, therefore, increase his guideline child-support obligation and would not trigger the presumption set out in Minn. Stat. ß 518.64, subd. 2(a).† There is no evidence in the record that the sonís needs have substantially increased since the decree.

The district court found that because the modification of maintenance restored Julie Hahnís income to the level anticipated at the time of the decree, there was not a substantial change in circumstances in her income, within the meaning of the decree, such that the agreement about child support should be modified.†

The district court implicitly rejected Julie Hahnís claim that there has been a substantial change in parenting time.† Based upon the lack of information in the record to substantiate Julie Hahnís claim, the implicit finding of no substantial change in parenting time is not clearly erroneous.† Therefore, the district court did not abuse its discretion by denying the motion to modify child support.

3.†††††††† Attorney fees

††††††††††† Julie Hahn requested an award of all attorney fees she incurred in these post-dissolution proceedings, based on Michael Hahnís failure to respond to her discovery requests.† A district courtís decision on whether to award conduct-based attorney fees under Minn. Stat. ß 518.14, subd. 1, ďrests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.Ē† Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).† Nowhere in the record did Julie Hahn provide an amount of attorney fees she claimed to be directly caused by the discovery problems.† The district court found that the legal fees set out in an affidavit regarding fees were for activity largely unrelated to discovery matters and that ďMichael Hahnís financial circumstances are not a significant factor in resolving this motion.Ē† Julie Hahn argues that the district court abused its discretion by failing to consider her request for fees set out in separate pleadings submitted on October 16, 2001 and February 22, 2002, noting that the affidavit referred to by the district court only listed fees and expenses incurred between February and April 2002.† We have reviewed the affidavit covering fees and expenses from May 8, 2001, through October 16, 2001, and the affidavit covering fees and expenses from October 16, 2001, through February 22, 2002.† These affidavits list all of the attorney fees and expenses incurred by Julie Hahn in bringing her post-dissolution motions and responding to the motions of Michael Hahn.† It is impossible to discern from the affidavits which fees and expenses Julie Hahn asserts are directly related to Michael Hahnís alleged resistance to discovery.† As in the affidavit referred to by the district court, it appears that most of the fees in the additional affidavits are unrelated to discovery problems.† The district court correctly concluded that the financial status of Michael Hahn was not a significant factor in resolving Julie Hahnís motions.† See Geske v. Marcolina, 624 N.W.2d 813, 818-19 Minn. App. 2001) (noting conduct-based attorney fee awards may be made regardless of obligorís ability to pay.)† Despite the district courtís failure to refer to all of the attorney fees affidavits filed, we conclude that the district court did not abuse its discretion by denying the request for conduct-based fees.

††††††††††† 4.†††††††† Motion to strike

††††††††††† Julie Hahn moved to strike certain references in Michael Hahnís principal brief and reply brief as pertaining to matters outside the record on appeal.† The record on appeal is composed of ďthe papers filed in the trial court, the exhibits, and the transcript of the proceedings.Ē† Minn. Civ. App. P. Rule 110.01.†

An appellate court may not base its decision on matters outside the record on appeal, and may not consider matters not produced and received in evidence [in the district court.]†

 

Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1998).† Because the record on appeal contains no reference to the amount of equity in Julie Hahnís home and no reference to sale of the home, we grant Julie Hahnís motion to strike these references contained in Michael Hahnís appellate briefs and her request for attorney fees incurred in bringing the motion to strike in the amount of $1,160.†

Affirmed; motion granted.

 



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