This opinion will be unpublished and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

A03-1472

 

In re the Marriage of:

 

Douglas Scott Ritter, petitioner,

Appellant,

 

vs.

 

Yvette Marie Ritter,

Respondent.

 

 

Filed May 25, 2004

Affirmed

Lansing, Judge

 

Ramsey County District Court

File No. F4-01-92

 

 

John P. Guzik, Guzik Law Office P.A., 2332 Lexington Ave. N., Roseville, MN  55113 (for appellant)

 

Jo Lynn Isaacson, Wellner & Isaacson, PLLP, Glen Oaks Center 2E South Pine Drive, Circle Pines, MN 55014 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Lansing, Judge; and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

This appeal is from an order on motions for modification of parenting-time provisions and child support in a marital-dissolution judgment.  Douglas Ritter argues that the district court erred in considering Yvette Ritter’s untimely responsive motion, in imputing income to him for child-support purposes during unemployment, in failing to modify his child-support obligation, in reallocating his parenting time, and in granting attorneys’ fees to Yvette Ritter.  Because the district court retains discretion to consider a late responsive motion and because the record supports the district court’s determinations on child support, parenting time, and attorneys’ fees, we affirm.

F A C T S

 

In their March 2002 stipulated dissolution judgment, Douglas and Yvette Ritter agreed to joint legal custody of their three minor children with Yvette Ritter receiving physical custody.  The judgment provided for reasonable and liberal parenting time for Douglas Ritter, including alternate Sundays and Mondays, and the first right to provide any required childcare.  According to the judgment, disputed issues of custody or parenting time would be submitted for mediation.

            The custody study prepared as part of the dissolution proceeding reported that the Ritters planned to enroll their children in private religious schools and that they had chosen Mount Olive Christian School as a preschool for their oldest child.  In August 2002 the oldest child began kindergarten at Mount Olive and the second oldest began preschool on Mondays.  Because both school schedules required attendance on Monday, Douglas Ritter’s parenting time was reduced, and he requested a work-schedule change to accommodate his parenting-time schedule.  At that time he was employed as a manager at Jake’s Restaurant earning $35,000 a year.  When the request was denied, he quit his job, stopped paying child support, and sought other employment.

Douglas Ritter filed a pro se motion in September 2002 requesting a temporary reduction in child support, modification of parenting time, and enforcement of his right of first opportunity to provide childcare.  He contacted the Cooperation for Children program to obtain help in arranging parenting time but declined mediation that Yvette Ritter requested from Mediation Services for Anoka County.  In November 2002, he obtained employment as a manager trainee at Caribou Coffee with an annual salary of $27,000.

After attempting unsuccessfully to resolve the parenting-time issues through her attorney, Yvette Ritter served a responsive motion by mail on November 26, 2002, for a hearing scheduled December 2, 2002.  In the responsive motion, she raised new issues relating to the safety of the children’s bunk beds at Douglas Ritter’s house and a defective seat belt in Douglas Ritter’s vehicle. 

At the motion hearing, Douglas Ritter challenged the timeliness of Yvette Ritter’s motion papers.  The referee ruled the responsive motion timely but allowed Douglas Ritter ten additional days to respond to the new issues.

In findings of fact, conclusions of law, and an order, affirmed by the district court, the referee found that Douglas Ritter exercised bad faith in his voluntary decision to terminate employment and to fail to pay his child support.  The Ritters stipulated to changing the parenting-time schedule to permit Douglas Ritter parenting time on Saturday and Sunday in alternate weeks and on Wednesday evenings.  The court also adjusted parenting time to provide that Douglas Ritter’s first right to provide care for the children applied when childcare was needed for a period of four or more hours.  The court reserved determination on the bunk-bed and seat-belt safety issues, ordered Douglas Ritter to pay child support and health-insurance-premium arrearages, and ordered him to pay $750 in conduct-based attorneys’ fees.  The district court denied a request for reconsideration but entered a final determination denying the motion relating to the use of bunk beds.  The Ritters stipulated that the defective seat belt had been repaired.  This appeal followed.

D E C I S I O N

I

Douglas Ritter disputes the application of Minn. R. Gen. Pract. 303.03(a) to determine the timeliness of Yvette Ritter’s responsive motion.  He contends instead that Minn. R. Civ. P. 6.04 governs the computation of time required for service of responsive motions and under that rule the responsive motion was untimely and should have been stricken.  We disagree.

The timeliness provisions of Minn. R. Gen. Pract. 303.03(a) apply to child-support-modification motions except those that fall within the narrow definition of posttrial motions under the Rules of General Practice.  See id. 303.03(a)(5) advisory comm. cmt. (referring to Minn. R. Gen. Pract. 115.01(c)); Minn. R. Gen. Pract. 115 advisory comm. cmt. (defining posttrial motions narrowly, to include only motions for a new trial, amendment of findings, JNOV, and related motions).  Thus, the timing provisions of rule 303.03(a) govern this motion.

Under Minn. R. Gen. Pract. 303.03(a)(2), a responding party raising new issues must serve and file motion papers at least ten days before the scheduled hearing.  Because Yvette Ritter’s responsive motion contained new issues, it required at least ten days’ notice.  But the failure to supply ten days’ notice does not mandate dismissal of the motion.  The language of Minn. R. Gen. Pract. 303(b) states that “[i]f responsive papers are not properly served and filed, the court may deem the initial motion . . . unopposed and may issue an order without hearing.”  (Emphasis added.)  The use of “may” makes the imposition of sanctions for late filing permissive rather than mandatory.  See Minn. R. Gen. Pract. 303(b) advisory comm. cmt. (noting rule’s derivation from parallel provisions in Minn. R. Gen. Pract. 115); Minn. R. Gen. Pract. 115.06 advisory comm. cmt. (“permissive language is included to make it clear the court retains the discretion to hear matters even if the rules have been ignored”).

The district court did not abuse its discretion in considering Yvette Ritter’s responsive motion.  She attempted to comply with the provisions of the judgment by mediating the issue of parenting time through mediation services for Anoka County, but she received notice in October that Douglas Ritter refused to use their services.  Thus, her failure to timely respond to Douglas Ritter’s motion was attributable, at least in part, to her attempt to comply with the stipulated judgment.

Furthermore, the district court afforded Douglas Ritter ten days to submit a response to the newly raised bunk-bed and seat-belt safety issues.  Because he ultimately prevailed on the bunk-bed issue, and the seat-belt issue was resolved by stipulation, he has failed to show prejudice from the district court’s consideration of those issues.


II

Douglas Ritter argues that the district court abused its discretion by imputing income to him during the period he was unemployed from September to November 2002.  In determining income for purposes of child support, the district court may impute income to a parent on a finding that the parent is voluntarily unemployed or underemployed.  Minn. Stat. § 518.551, subd. 5b(d) (2002).

Imputed income is defined as the parent’s earning ability based on the parent’s past earnings history, education, skills, and the availability of jobs within the community for a person with those qualifications.  Id.  “Imputing income to a voluntarily-unemployed obligor furthers the state’s interest because it prevents parents who choose to limit their income from escaping their duty to support their children.”  Putz v. Putz, 645 N.W.2d 343, 352 (Minn. 2002).

Douglas Ritter contends that he had to leave his employment as a manager at Jake’s Restaurant because Yvette Ritter refused his request for additional parenting time.  But the record shows that he failed to make a good-faith attempt at mediating parenting-time issues, instead choosing to quit his job and stop paying child support.  His assertion that Yvette Ritter unilaterally enrolled two of their children at Mount Olive Christian School on Mondays during his weekend parenting time is inconsistent with an earlier custody evaluation establishing that school choice was a mutual decision.  Also, the Ritters’ oldest child was beginning kindergarten, and elementary schools are generally in session Monday through Friday. 

The record fails to support Douglas Ritter’s alternative argument that he was involuntarily unemployed because his unemployment was temporary and represented a bona fide career change.  See Minn. Stat. § 518.551, subd. 5b(d) (excluding from voluntary underemployment or unemployment a bona fide career change for a temporary period that leads to an increase in income).  Douglas Ritter has not established that his current job at Caribou Coffee will ultimately lead to an increase in income or that his new job was a bona fide career change from his previous work in restaurant management.  See, e.g, Putz, 645 N.W.2d at 352-53 (concluding that child-support obligor who returned to school had not met burden of showing that his unemployment would lead to increase in income).  Therefore, the district court did not abuse its discretion in imputing income to Douglas Ritter to establish his child-support obligation during his unemployment.  Because his current job pays roughly the same amount as his past job in the same field, the district court did not err in using his past work history as a basis for calculating the imputed income. 

III

A parent seeking modification of a child-support order carries the burden of showing a substantial change of circumstances that makes the existing child-support order unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a)(2) (2002).  A reviewing court will reverse a district court’s order on a child-support-modification motion only if the district court reached a “clearly erroneous conclusion that is against the logic and the facts on [the] record.”  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quotation omitted). 

Douglas Ritter argues that the district court erred by failing to modify his child-support obligation because he showed a substantial change of circumstances caused by his temporary unemployment and current employment at a lower pay rate.  Applying the child-support guidelines to Douglas Ritter’s current salary would result in only a thirteen percent decrease in his monthly child-support obligation.  In light of the court’s findings on Douglas Ritter’s voluntary change in employment and the limited percentage of decrease resulting from the change, the district court did not err in finding that no substantial change in circumstances made the current obligation unreasonable or unfair.  See Minn. Stat. § 518.64, subd. 2(b)(1) (setting presumption of substantial change of circumstances at twenty percent and fifty dollars per month higher or lower than current support order). 

IV

 

The district court interpreted the stipulated judgment provision on Douglas Ritter’s first right to provide needed childcare to apply only when the childcare was for a period of four hours or more.  Douglas Ritter claims this finding amounted to a modification of parenting time without properly considering the children’s best interests.  See Minn. Stat. § 518.175, subd. 5 (2002) (stating that the district court may modify parenting time if it is in the best interests of the child).  We disagree.

The district court has discretion to implement the provisions of a dissolution decree by amending the judgment.  Linder v. Linder, 391 N.W.2d 5, 8 (Minn. App. 1986).  Clarifications or insubstantial modifications of parenting time fall within a district court’s discretion and need not be supported by findings addressing the child’s best interests.  Funari v. Funari, 388 N.W.2d 751, 753 (Minn. App. 1986).  The district court’s finding that Douglas Ritter should have the first right to care for the parties’ children only if the childcare period amounted to four hours or more reflected the children’s current schedules and the increased distance from the Ritters’ respective homes resulting from Douglas Ritter’s move to White Bear Lake.  This change in parenting time is insubstantial, reflects the practical circumstances, and is well within the district court’s discretion.

V

Douglas Ritter’s final challenge is to the district court’s order requiring him to pay $750 in attorneys’ fees to Yvette Ritter.  Under Minn. Stat. § 518.14 (2002), which governs attorneys’ fees for child-support-modification motions brought under Minn. Stat. § 518.64 (2002), the district court maintains discretion to assess attorneys’ fees against a party “who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. §§ 518.64, subd. 2(g), .14, subd. 1.  An allocation of conduct-based attorneys’ fees may only be based on conduct that occurs during the litigation process.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).  Appellate courts review a district court’s decision to impose attorneys’ fees for an abuse of discretion.  Gully, 599 N.W.2d at 825. 

The district court found that $750 was a reasonable amount for attorneys’ fees and that Douglas Ritter’s bad faith termination of employment and failure to pay child support, among other actions, justified an order for attorneys’ fees.  To the extent that Ritter’s conduct in terminating his employment in bad faith did not occur during the litigation process, the district court may not relay on that conduct as a basis for attorneys’ fees.  See Geske, 624 N.W.2d at 819 (noting that behavior occurring outside litigation process may not serve as a basis for conduct-based attorneys’ fees under Minn. Stat. § 518.14).  But the district court’s findings, which also reflect Douglas Ritter’s apparent reluctance to mediate parenting-time issues through Mediation Services for Anoka County, are sufficient to support the court’s finding of bad faith conduct that added to the length and expense of the proceedings.  The district court did not abuse its discretion in ordering $750 in attorneys’ fees.

            Affirmed.