This opinion will be unpublished and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

A03-615

 

In re the Marriage of:

Nancy Campbell Vallez, petitioner,
Respondent,

vs.

Michael Vallez,
Appellant.

 

Filed January 27, 2004

Affirmed in part and appeal dismissed in part

Peterson, Judge

 

 

Dakota County District Court

File No. F29814090

 

 

Kevin J. McGrath, Rodney H. Jensen, Jensen, McGrath & Mullen, 1350 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN  55431 (for respondent)

 

 

John G. Westrick, Tammy L. Merkins, Westrick & McDowall-Nix, 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for appellant)

 

 

            Considered and decided by Toussaint, Chief Judge; Peterson, Judge; and Crippen, Judge.*


U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from an order requiring appellant to use a parenting-time expeditor, appellant challenges the constitutionality of Minnesota’s parenting-time-expeditor statute, Minn. Stat. § 518.1751 (2002), and argues that the district court abused its discretion by awarding respondent attorney fees.  We affirm the attorney-fee award and dismiss the portion of the appeal challenging the district court’s ruling on the constitutionality of Minn. Stat. § 518.1751.

FACTS

 

The parties’ marriage was dissolved in November of 2000.  In 2001, appellant Michael Vallez made a motion requesting the appointment of a parenting-time expeditor to assist in resolving issues regarding parenting time.  In January 2002, the district court appointed a parenting-time expeditor pursuant to a stipulated agreement between the parties.  In February 2003, respondent Nancy Campbell Vallez brought a motion to enforce the January 2002 order, alleging that appellant refused to use the expeditor in the weeks before September 17, 2002, and requesting $950 for attorney fees.   In a responsive motion, appellant asked the district court to remove the parenting-time expeditor, vacate the expeditor’s decisions, and declare Minn. Stat. § 518.1751 (2002), which authorizes the use of an expeditor, unconstitutional.  Respondent later filed a motion requesting a $2,310 attorney-fee award.

            The district court denied appellant’s motion, ordered appellant to “fully utilize and abide by the parenting time expeditor and her recommendations,” and awarded respondent $2,310 for attorney fees.

D E C I S I O N

 

1.         It is axiomatic that a party challenging the constitutionality of a statute must first demonstrate standing.  Paulson v. Lapa, Inc., 450 N.W.2d 374, 380 (Minn. App. 1990), review denied (Minn. Mar. 22, 1990).  Standing to raise a constitutional challenge requires “a ‘direct and personal harm resulting from the alleged denial of constitutional rights.’” Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 391 (Minn. App. 1993) (quoting City of Minneapolis v. Wurtele, 291 N.W.2d 386, 392 (Minn. 1980)), aff’d 517 N.W.2d 901 (Minn. 1994). “[O]ne who invokes the power of the court to declare a statute unconstitutional must be able to show not only that the statute is invalid but that the person has sustained or is in immediate danger of sustaining some direct injury resulting from its enforcement . . . .”  Paulson, 450 N.W.2d at 380.

            Appellant argues that Minn. Stat. § 518.1751, is unconstitutional because it violates the separation of powers required by Minn. Const. art. VI, §§ 1, 3, and violates state and federal guarantees of due process of law.  But, the record does not show that appellant has sustained, or is in immediate danger of sustaining, a direct injury as a result of using and abiding by the parenting-time expeditor and her recommendations.  In the district court, appellant’s memorandum of law was not supported by an affidavit alleging a factual basis for his claims.  Because appellant offered no evidence that he has sustained, or is in danger of sustaining, a direct injury, he did not demonstrate that he has standing to make a constitutional challenge.  Therefore, we dismiss the portion of this appeal challenging the district court’s ruling on the constitutionality of Minn. Stat. § 518.1751.

2.         Appellant argues that the district court abused its discretion by awarding attorney fees for conduct that occurred outside the litigation.  An attorney-fee award under Minn. Stat § 518.14, subd. 1 (2002), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  The district court may award, “in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expenses of the proceeding.”  Minn. Stat § 518.14, subd. 1.  An award of conduct-based fees may be made regardless of the recipient’s need for fees and regardless of the payor’s ability to contribute to a fee award.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  Such awards are to be based on behavior occurring during the litigation process.  Id. at 819.  “[B]ehavior occurring outside the litigation process is not a basis for a conduct-based fee award” under Minn. Stat § 518.14, subd. 1.  Id. at 819.

Here, the district court found that appellant failed to comply with the stipulated agreement and court order requiring him to use a parenting-time expeditor.  Instead of seeking review by a district court, appellant chose to terminate contact with the expeditor, which forced respondent to bring a motion to enforce the order.  The district court also found that appellant repeatedly contacted respondent’s attorney in attempts to resolve parenting-time issues that were properly before the parenting-time expeditor.  The behavior for which attorney fees were awarded occurred within the litigation process.

Appellant also argues that the attorney-fee award should be reversed because his motion was reasonable and brought in good faith.  Appellant contends that under Minn. Stat. § 518.1751, subd. 5a (2002), a party “may file a motion seeking to have the expeditor removed for good cause shown” and he had a reasonable argument for removing the expeditor.  But, as the district court found, appellant did not allege any factual basis for removing the expeditor. 

Finally, appellant argues that even if this court concludes that he unreasonably contributed to the length of the proceedings by contacting respondent’s attorney, instead of the expeditor, the attorney-fee award should be limited to $950 because respondent incurred the remaining $1,360 in attorney fees responding to his argument that Minn. Stat. § 518.1751 is unconstitutional, and this argument had a reasonable basis in law and was brought in good faith.  But even if appellant made a good-faith argument that Minn. Stat. § 518.1751 is unconstitutional, that does not, by itself, demonstrate that the district court abused its discretion.

It is evident in the district court’s findings of fact that the court’s decision was not based only on appellant’s behavior after respondent brought a motion to enforce the January 2002 order.  The court’s findings explain that in September 2001, appellant moved to have a parenting-time expeditor appointed and agreed to the appointment of an expeditor, and in January 2002, appellant again agreed that an expeditor should be appointed and entered into a stipulation that explicitly identified the person who would be appointed.  Then, in September 2002, after that person was appointed, appellant informed the expeditor that he no longer wished to work or cooperate with her.  Not until respondent brought a motion to enforce the order that was based on the parties’ stipulation did appellant argue that appointing an expeditor, which is what he had originally requested, is unconstitutional.  On this record, we cannot conclude that the district court abused its discretion when it concluded that appellant “has unreasonably added to the length and expense of this matter by failing to comply with the parties’ stipulated agreement.” 

Because the district court did not abuse its discretion in awarding respondent $2,310 for attorney fees, we affirm the award.

Affirmed in part and appeal dismissed in part.



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