This opinion will be unpublished and

may not be cited except as provided by

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






Bonita L. Wilke, petitioner,





Jonathan P. Wilke,



Filed April 8, 2003


Randall, Judge


Hennepin County District Court

File No. SP163314



Alan C. Eidsness, Lisa T. Spencer, 220 South Sixth Street, Suite 1800, Minneapolis, MN 55402 (for respondent).


D. Patrick McCullough, Lisa Watson Cyr, McCullough, Smith & Kempe, 905 Parkway Drive, St. Paul, MN 55106 (for appellant)



            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant-father Jonathon Wilke argues that the district court (a) misread the parties’ dissolution judgment to make him responsible for the private-school tuition of the parties’ children even though they were enrolled in a school other than the one mentioned in the judgment; (b) abused its discretion in not reducing his prospective and past child-support-related obligations; and (c) overstated his arrears.  Respondent-mother Bonita Wilke moves for attorney fees on appeal and to strike parts of the appendix to father’s brief.  We affirm the district court and deny mother’s motions.


The 1994 amended judgment dissolving the parties’ marriage (a) awarded respondent maintenance and sole legal and physical custody of the parties’ two children; (b) found appellant had substantial annual income, including $175,000 from three noncompete agreements scheduled to expire in 1996; (c) set appellant’s support obligation and stated that after the older child reached age 18, support would be 83.34% of the amount for two children; (d) required appellant to pay the children’s tuition and related costs at “The Blake School”; (e) allowed appellant to pay tuition directly to “The Blake School,” as long as he did not interfere with the children’s education; and (f) directed appellant to maintain insurance coverages and to pay half of certain uninsured medical costs.

In May 1995, the district court adopted the parties’ stipulation allowing respondent to move to Hawaii, and ruled that the parties would share the costs of visitation-related transportation expenses.  In Hawaii, the children enrolled in a new school.  In June 1997, after appellant’s income from the noncompete agreements ceased, he agreed to continue to pay his monthly maintenance obligation until June 2004.  Between 1996 and 2000 when the older child finished high school, appellant paid all tuition for the older child.  He also paid all of the younger child’s tuition between 1996 and June 2001. 

In November 2001, appellant moved to reduce his obligations.  His motion was based in part on the income he lost in 1996 when he stopped receiving income from the noncompete agreements.  Appellant also argued that he had no obligation to pay tuition to the new school in Hawaii because the judgment only required him to pay tuition to The Blake School.  Respondent counter-moved for various arrears.  The district court denied appellant’s motions and awarded respondent arrearages for unpaid tuition for the 2001-02 school year and other educational expenses accrued since 1997 for the younger child, as well as other arrears for medical and transportation-related expenses.  This appeal followed.



The amended judgment states that (a) as child support, appellant “shall pay directly to The Blake School” the tuition and other amounts necessary to allow the children to attend that school “thorough high school”, and (b) Appellant had the “right to pay the children’s tuition and related costs to The Blake School directly” under certain conditions.  Noting that the judgment refers specifically to “The Blake School[,]” appellant argues that his obligation to pay private school tuition was unambiguously limited to tuition at The Blake School and, therefore, that the district court erred in reading the judgment to require him to pay tuition for a comparably priced private school in Hawaii. 

Whether a provision in a dissolution judgment is ambiguous is a legal question.  Head v. Metropolitan Life Ins. Co., 449 N.W.2d 449, 452 (Minn. App. 1989), review denied (Minn. Feb. 21, 1990).  Judgment language is ambiguous if it is reasonably subject to more than one interpretation.  Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986).  Here, the district court recognized appellant’s argument that the judgment could be read to limit his obligation to pay tuition to only that due to The Blake School.  The district court also noted, however, that allowing appellant to pay The Blake School directly could have been only for appellant’s convenience, rather than to limit his tuition obligation.  This is not an unreasonable reading of the judgment.  Additionally, the judgment awarded respondent sole legal custody of the children.  When judgment was entered, “legal custody” included “the right to determine the child’s upbringing, including education[.]”  Minn. Stat. § 518.003, subd. 3(a) (1992).  Thus, even if the tuition provision was specific to The Blake School, respondent’s ability to enroll the children in other schools could have generated non-Blake tuition expenses based upon which she could have sought to modify appellant’s child support and/or maintenance obligations.  See Minn. Stat. § 518.64, subd. 2(a) (2002) (stating increased expenses rendering an existing maintenance or support award unreasonable and unfair can justify modification of a previous award).  For these reasons, we affirm the district court’s implicit determination that the judgment is ambiguous about whether appellant’s tuition obligation extends beyond The Blake School to other private schools. 

If a judgment provision is ambiguous, determining what it means is a factual question.  Landwehr v. Landwehr, 380 N.W.2d 136, 140 (Minn. App. 1985).  Findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Here, in construing the ambiguous tuition provision, the district court found that the tuition provision extended appellant’s obligation “to a comparably priced private school in Hawaii.”  The record shows that even after appellant lost income from the noncompete agreements in 1996, he continued to pay the children’s tuition in Hawaii through the 2000-01 school year.  Thus, the district court’s reading of the tuition provision to mean that appellant’s tuition obligation could include a comparably priced school in Hawaii is consistent with what was apparently appellant’s own (initial) reading of the provision.  Cf. Bone v. Bone, 438 N.W.2d 448, 451 (Minn. App. 1989) (stating district court’s interpretation of judgment is to accurately express thoughts the judgment was intended to convey).  On this record, we cannot say that the district court’s reading of the judgment is clearly erroneous.  See Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (stating appellate courts view the record in the light most favorable to the district court’s findings).

Appellant also argues that respondent failed to move for tuition from appellant for the children’s new school and that the provision allowing respondent and the children to move to Hawaii was drafted by respondent’s counsel and, therefore, that any ambiguities in the judgment related to the move should be construed against respondent.  But the first of these arguments assumes that respondent had to move for payment of tuition at the Hawaii school and the second argument ignores the fact that appellant paid the tuition at the Hawaii school for several years.  Cf. Adam v. Adam, 358 N.W.2d 487, 489 (Minn. App. 1984) (defining waiver as intentional or voluntary relinquishment of known right).


Appellant argues that even if the district court correctly read the tuition provision to include an obligation for him to pay tuition for the children in Hawaii, the district court should have reduced his support obligation by relieving him of his obligations to pay educational expenses, insurances expenses, and certain medical, dental, and transportation expenses.  “Medical needs of a minor child, including insurance coverage, ‘are in the nature of child support.’”  Casper v. Casper, 593 N.W.2d 709, 714 (Minn. App. 1999) (quoting Korf v. Korf, 553 N.W.2d 706, 708 (Minn. App. 1996)).  Child support may be modified upon a finding of substantially changed circumstances rendering the existing obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2002).  On appeal, decisions regarding whether to modify support are reviewed for an abuse of the district court’s “broad discretion.”  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  Also, appellate courts defer to district court credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

The crux of appellant’s argument that he should be relieved of his contested financial responsibilities is that he lost $175,000 in noncompete-agreement income in 1996 and has had to liquidate assets since that time to meet his obligations.  The district court acknowledged that appellant made this argument and that appellant had submitted a “significant [number] of financial documents” to support his argument.  It still stated (twice), however, that appellant had failed to show a substantial change in circumstances rendering his existing obligations unreasonable and unfair.  Thus, the district court apparently did not accord great weight to the documentation appellant submitted to support his argument.  Also, the record shows, among other things, (a) a significant delay between appellant’s lost income and his motion to modify based on the loss of that income, (b) that, during that delay, appellant paid without objection, the vast majority of the obligations he is now challenging as well as his pre-loss maintenance obligation, and (c) the actual extent of appellant’s actual income and ability to pay were contested.  On this record, and given district court discretion in addressing support, as well as appellate deference to a district court’s credibility determinations, we affirm the district court conclusion that appellant failed to show his prospective support obligations were unreasonable and unfair. 

We reject appellant’s challenge to the district court’s refusal to forgive his support-related arrears.  Forgiveness of arrears is a retroactive modification of support “governed by Minn. Stat. § 518.64, subd. 2.”  Darcy v. Darcy, 455 N.W.2d 518, 525 (Minn. App. 1990).  The prerequisites for a retroactive support modification are listed in Minn. Stat. § 518.64, subd. 2 (d) (2002) and are not satisfied here.  We conclude the district court did not err by refusing to forgive the arrearages[1]


The district court ordered appellant to pay $20,209 in arrears for educational expenses.  Appellant alleges this award is defective because respondent failed to adequately document the amount appellant allegedly owed her.  But testimony unsupported by associated documents can be adequate to determine the amount a party is owed.  See Doering v. Doering, 385 N.W.2d 387, 391 (Minn. App. 1986) (deferring to district court’s credibility determination regarding whether party’s undocumented testimony supported tracing of property to nonmarital source).  Here, the district court adopted respondent’s calculations and we defer to that credibility determination.  See Sefkow, 427 N.W.2d at 210. 

Noting that respondent gave appellant certain handwritten receipts for amounts that she alleges that she spent on school-related expenses, appellant (a) observes that these receipts were not entered as evidence in district court, (b) alleges that various items on the handwritten receipts are beyond his educational-expense liability, and (c) argues that therefore the district court overstated his arrears.  But if the handwritten receipts were not entered into evidence, we cannot consider them.  See Minn. R. Civ. App. P. 110.01 (defining record on appeal as papers presented to district court); Thiele v. Stich, 425 N.W.2d 580. 582-83 (Minn. 1988) (stating appellate court may not base its decision on matters not admitted in evidence in district court); cf. Kelly v. City of Minneapolis, 581 N.W.2d 372, 379 (Minn. App. 1998) (striking documents outside record on appeal and references to those documents in party’s argument on appeal), rev'd on other grounds, 598 N.W.2d 657 (Minn. 1999).  It does appear the amounts at issue seem, on this record, de minimis.  See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App.1985) (refusing to remand for de minimis error in child support); see also Minn. R. Civ. P. 61 (harmless error ignored).


We deny respondent’s motion for attorney fees on appeal.  Given our resolution of the appeal, we deny respondent’s motion to strike parts of respondent’s appendix.


[1]  Appellant argues that the district court erroneously ruled that the parties had stipulated to the amount of his medical and travel-related arrears.  We appreciate respondent’s candor in conceding that the parties did not stipulate on this point.  However, we note both the procedural problems with appellant’s untimely raising of this argument and the fact that, on this record, any argument that appellant does not owe the amounts in question can have only limited weight.  Cf. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that, to prevail on appeal, party must show error and that error caused prejudice).