This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Filed June 7, 2005
Hennepin County District Court
File No. DC 271372
Marc G. Kurzman, Carol M. Grant, Kurzman, Grant & Ojala Law Office, 219 Main Street S.E., Suite 403, Minneapolis, MN† 55414 (for appellant)
††††††††††† Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Crippen, Judge.
††††††††††† The parties are the parents of four minor children, ages five to eleven years.† Under the terms of the May 2003 dissolution judgment, the parties share joint legal custody, but appellant has sole physical custody of the children.† Respondent was ordered to pay $1,650.93 in monthly child support and $190.80 per month for child care.† Appellant was made solely responsible for all private school tuition for the children.† The judgment was silent as to the allocation of dependency exemptions.
††††††††††† In March 2004, appellant moved to increase child support and the child care contribution.† Respondent moved to allocate the dependency allowances between the parties.† The support motion was heard four days before the dependency exemption motion was heard.
††††††††††† The district court found that respondentís net monthly income had increased by $330 and that his monthly expenses had increased by approximately $100.† The court further found that appellantís monthly expenses had increased by $430 but that her net monthly income had increased by $300.† The court excluded the childrenís private school tuition from appellantís monthly expenses.
††††††††††† Based on these findings, the district court concluded that there had been no substantial change in circumstances that made the prior support order unreasonable and unfair, and that the increase over the prior order would be less than the rebuttable presumption set out in Minn. Stat. ß 518.64, subd. 2(b) (2004) (presuming a substantial change in circumstances where increase over prior award would be 20% and $50 greater).† The court awarded respondent $950 in conduct-based attorney fees, determining that there was no basis for appellantís motion.†
D E C I S I O N
district courtís order modifying child support is reviewed for an abuse of
discretion.† Putz v. Putz, 645 N.W.2d 343, 347 (
contends that the district courtís calculations of income are incorrect,
arguing that the court improperly determined respondentís medical deductions
and failed to attribute dividend income to him.†
The courtís determination of an obligorís income is a finding of fact
that will not be altered on appeal unless clearly erroneous.†
††††††††††† Because substantial evidence exists in the record to support the district courtís findings, those findings are not clearly erroneous.† Respondentís income and deductions are documented in the record and respondentís dividend income has not changed since the prior order.† Because respondentís income over expense has increased only minimally, there is no increase in respondentís resources that would support a finding of a substantial change in circumstances.
††††††††††† Appellant argues that there has been a substantial increase in the childrenís needs since entry of the prior order.† The district court found that the increase in appellantís expenses over income, amounting to about $130, did not represent a substantial increase in needs.† The courtís findings are supported by the record and are not clearly erroneous.† See id.† Although appellant argues that the increase in the childrenís private school tuition represents a dramatic change in circumstances, the original order made appellant responsible for the private school tuition and the entry of another child into the school was certainly contemplated.† This increase in tuition is not a substantial change in circumstances.
contends that the district courtís order of May 13, 2004, dividing the
dependency exemptions between the parties, represents a substantial change in
circumstances.† But appellant has not sought
review of that order and has not briefed any basis for correcting this
order.† Issues not briefed on appeal are
waived.† Melina v.
††††††††††† The district court may award attorney fees against a party who unreasonably contributes to the length or expense of a proceeding.† Minn. Stat. ß 518.14, subd. 1 (2004).† ďAn award of attorney fees rests 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).†
††††††††††† Appellantís motion for modification was made just ten months after entry of the original support order and is based on foreseeable or insubstantially increased expenses and a relatively modest increase in respondentís resources.† Sufficient evidence exists in the record to support the district courtís finding that appellant brought this motion knowing that there was not a substantial basis for an increase in support.† We therefore conclude that the court did not abuse its discretion by awarding respondent attorney fees.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.