This opinion will be unpublished and

may not be cited except as provided by

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






In re:  Barbara Jean Cloutier, petitioner,





Kevin Christopher Quigley,



Filed February 11, 2003


Halbrooks, Judge



Dakota County District Court

File No. F0963133


Joan H. Lucas, 700 St. Paul Building, 6 West 5th Street, St. Paul, MN 55102 (for respondent)


Tom Foley, Hamilton Quigley Twait & Foley PLC, W1450 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1314 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the trial court’s order increasing his child-support obligation and setting his previously reserved maintenance obligation.  We affirm. 


The 14-year marriage of appellant Kevin Quigley and respondent Barbara Cloutier was dissolved on May 4, 1998.  The trial court determined at the time that Quigley, an attorney, had a gross monthly income of $4,000 and a net monthly income of $2,502.  The order does not include a specific calculation of Quigley’s monthly expenses, but the trial court noted that Quigley was not paying rent because he was living with his sister. 

The trial court found that Cloutier’s monthly net income was $1,222 per month and her reasonable monthly expenses were $2,516.70.  Cloutier had two jobs — waitressing at the Cherokee Sirloin Room and part-time work in the cafeteria of a South St. Paul grade school. 

The parties stipulated to, and the trial court awarded, joint legal custody and sole physical custody of the parties’ two minor children to Cloutier.  Quigley was ordered to pay $751 per month for child support.  The court also awarded spousal maintenance to Cloutier, but reserved the issues of maintenance amount and duration because of Quigley’s financial inability to pay a maintenance award at that time.

Approximately three years later, Cloutier moved to increase Quigley’s child support and for a determination of his maintenance obligation.  Quigley brought a cross-motion for an amendment of the parties’ visitation schedule and to compel Cloutier to repay a student loan and to produce property from the original award.  At that time, Cloutier continued to work as a waitress at the Cherokee Sirloin Room but no longer worked at the school.  Cloutier had quit her second job because she needed to work more hours at the Cherokee Sirloin Room in order to qualify for a significantly reduced rate for medical insurance.  The court found that Cloutier’s net monthly income was then $1,182 — $982 from her waitressing job and $200 from rental income.  The court determined that Cloutier’s reasonable monthly living expenses for herself and the children were $2,750. 

            The trial court found that Quigley’s gross monthly draw from his law firm was $5,000 until March 2001, when it was reduced to $4,500.  The court noted that the reduction coincided with the filing of Cloutier’s motion.  Quigley also received a lump-sum distribution of $127,500 from the proceeds of a personal-injury lawsuit in March 2000.  As a result, the court found that Quigley had the ability to earn a monthly gross income of $5,000, with a net monthly income of $3,044.

The trial court concluded that there had been a substantial increase in Quigley’s net monthly income rendering the terms of his existing support obligation unreasonable and unfair.  The court ordered Quigley to pay $913 per month in child support (a $118 per month increase) and awarded Cloutier $500 in permanent spousal maintenance until her remarriage or the death of one of the parties. 

Quigley brought a motion to amend the findings of fact, conclusions of law, and order for judgment.  The trial court ordered that the findings be amended to include a finding of Quigley’s reasonable monthly living expenses in the amount of $1,429.  The court also noted that while Quigley had been living beyond his means, he had the financial ability to pay maintenance at that time.

This appeal follows.


Quigley asserts that the trial court abused its discretion when it increased his child-support obligation to $913 per month and awarded Cloutier permanent monthly maintenance of $500.  We review a trial court’s determinations regarding maintenance and modification of child support for an abuse of discretion.   Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (modification of support); Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (maintenance).  For this court to conclude that the trial court abused its broad discretion, the trial court’s findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). 

A court may modify spousal maintenance or child support upon a showing that the existing award has been rendered unreasonable and unfair because of substantially increased or decreased earnings of a party or substantially increased or decreased need of a party or a child.  Minn. Stat. § 518.64, subd. 2(a) (2002).  A party seeking modification has the dual burden of showing both that a substantial change in circumstances has occurred and that the change makes the existing award unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (maintenance); see Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993) (addressing modification of support), review denied (Minn. June 22, 1993). 

Quigley asserts that the trial court erred in concluding that Cloutier had met her burden to establish a substantial increase in his monthly net income because the court failed to include the statutory deduction for his $200 per month dependent medical-insurance payment.  Had the court included that deduction, Quigley argues, his monthly net income would have been $2,844, a 9% increase from his 1998 net income of $2,502.

We note at the outset that Quigley states that Cloutier’s burden of proof is that she must show substantially changed circumstances by “clear proof.”  We also note that some family cases use this “clear proof” phraseology.  See, e.g., Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980); Kruschel v. Kruschel, 419 N.W.2d 119, 121 (Minn. App. 1988).  Family cases, however, are civil matters.  Holmberg v. Holmberg, 578 N.W.2d 817, 820 (Minn. App. 1998), aff’d, 588 N.W.2d 720 (Minn. 1999).  And the burden of proof in civil matters is preponderance of the evidence.  Culligan Soft Water Serv. of Inglewood, Inc. v. Culligan Int’l Co., 288 N.W.2d 213, 217 (Minn. 1979).  Therefore, to the extent Quigley suggests that Cloutier’s burden of proof is something other than the preponderance-of-the-evidence standard traditionally used in civil cases, we reject that facet of his argument.  Cf. McClelland v. McClelland, 393 N.W.2d 224, 228 (Minn. App. 1986) (explaining that party seeking maintenance modification must show modification is warranted by preponderance of evidence), review denied (Minn. Nov. 17, 1986).

There are at least two problems with the merits of Quigley’s argument that the trial court overstated his income.  First, the only evidence in the record to support his allegation that he pays $200 per month for the children’s health insurance is one $200 check written to HealthPartners and his affidavit, which the trial court apparently disbelieved.  Indeed, the trial court noted that Quigley’s monthly draw from his law practice was reduced at about the time Cloutier brought her motion.  On this record, we must infer that the trial court did not find Quigley’s assertions on this subject to be credible.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (concluding that a reviewing court defers to trial court credibility determinations); Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998) (deferring to district court’s determination regarding credibility of affidavit).  Second, when it is impracticable to determine actual net income, a court’s reasonable estimate is not an abuse of its discretion.  Fulmer v. Fulmer, 594 N.W.2d 210, 213 (Minn. App. 1999).  Here, Quigley never produced an accounting of his income or his expenses, and he did not provide any documents until shortly before the motion hearing.  At that point, he submitted approximately five inches of undifferentiated financial records, including tax returns, payroll records, credit-card receipts, and insurance documentation.  One of Quigley’s exhibits, entitled “Monthly Living Expenses,” lacks summary or explanation and appears to be photocopies of some bills due in April 2001 and payments applied to those accounts by personal checks.  On this record, we cannot fault the trial court for any estimate it may have used in finding Quigley’s net monthly income, and the trial court did not clearly err in concluding that Quigley’s income had substantially increased so that the terms of his existing support obligation were unreasonable and unfair.

Regarding maintenance, we reject Quigley’s contentions that the trial court erred because it did not make a specific finding that Cloutier had unmet financial needs and because it found Cloutier’s monthly net income and reasonable expenses without any calculation.  The trial court found that Cloutier’s current net monthly income was $982 from waitressing, plus $200 per month in rental income, and that her reasonable monthly living expenses were $2,750 per month.  Thus, after $913 in monthly child support, Cloutier has a $655 monthly deficit.  The existence of this deficit is consistent with the findings that Cloutier meets her monthly needs by drawing on a small inheritance, living frugally, and receiving assistance from food shelves and social-service agencies.  Cf. Minn. Stat. § 518.64, subd. 2(a) (noting receipt of certain public assistance qualifies as substantially changed circumstances for modification purposes).[1] 

We also reject any contention that the trial court understated Cloutier’s income by failing to acknowledge that she voluntarily left her part-time job.  She did so to work additional hours at her other job, so that she could qualify for a significantly reduced rate for health insurance.  Had she not done so, her need for maintenance would have increased commensurately. 

Quigley claims that Cloutier’s expenses are inflated because they include attorney fees that were discharged through bankruptcy.  The trial court, however, did not include any payment of fees in its finding of Cloutier’s reasonable monthly expenses.

Quigley also claims that that the trial court merely adopted Cloutier’s expenses without reviewing the record.  See Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992) (cautioning against wholesale adoption of one party’s proposed findings), review denied (Minn. Feb. 12, 1993).  The expenses listed in the trial court’s findings, however, were adjusted from those provided by Cloutier and were not merely an adoption of Cloutier’s proposal.

Quigley further claims that there is no evidence in the record to suggest that he has the ability to pay maintenance.  A maintenance award must balance the financial needs of the obligee, and the obligee’s ability to meet those needs, against the obligor’s ability to pay.  Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).

The trial court found that Quigley’s reasonable monthly expenses were $1,429 per month and his net income was $3,044 per month, leaving $1,600 per month available for maintenance and child support.  In making these determinations, the trial court noted that, while Quigley’s current expenses are greater than $1,429, he was living beyond his means and could make maintenance and child-support payments.  This finding is consistent with the portions of the record showing that Quigley spent a large amount of money on restaurant meals, shopping, gift purchases, accumulating unnecessary bank fees, and taking various trips with the children.  The trial court’s finding that Quigley had the ability to make the maintenance payment, if he would curtail his expenditures, is supported by the record and is not clearly erroneous. 



[1] We note that after receipt of a $500 monthly maintenance payment, Cloutier’s annual deficit will still exceed the income tax refunds Quigley alleges that the trial court failed to consider when finding Cloutier’s net monthly income.  Regarding Quigley’s allegations that Cloutier receives tax credits that, when combined with her tax refunds, produce a surplus for Cloutier, we note that, on this record, the existence of any surplus is uncertain and that any surplus that may exist is insufficient to compel a remand.  Cf. Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error).