This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






In re Nancy Lynn Horak, petitioner,





James Horak,




Filed October 11, 2005


Toussaint, Chief Judge


Anoka County District Court

File No. F3-99-4228



Suzanne M. Remington, Clugg, Linder, Dittberner & Remington, Ltd., 3205 West 76th Street, Edina, MN 55435 (for appellant)


Jill I. Frieders, O’Brien & Wolf, LLP, 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903 (for respondent)


            Considered and decided by Toussaint, Chief Judge; Klaphake, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


            In this child-support dispute, appellant argues that the district court (1) overstated her support arrearages by improperly retroactively modifying the parties’ support obligations, failing to enforce a prior order, and miscalculating appellant’s ability to pay support and (2) abused its discretion by awarding respondent conduct-based attorney fees.  Because the district court neither erred in its application of the law nor abused its discretion, we affirm.


In June 2000, the parties changed the custody arrangement for their two children from physical custody with appellant, which was court-ordered, to split-custody, by agreement.  Not until July 17, 2001, did respondent move for an order, among other things, awarding him physical custody of the child living with him and requiring appellant to pay him child support.  The modification motion was heard on September 17, at which time the parties placed their agreement for split-custody and concomitant changes to child support on the record.  The order reduced respondent’s child support obligation to support for one child retroactive to June 2000, but contained no specific child support order pending appellant’s disclosure of financial data.

By December 23, 2001, neither the district court nor respondent had appellant’s financial data.  Nevertheless, the court filed an “order after hearing and on stipulation” memorializing the September stipulation.  The order contained no new child support obligation for either party, but appellant was ordered to provide financial data to respondent’s attorney within 30 days. 

On March 14, 2002, respondent moved for an order finding appellant in contempt for failing to comply with the December 23 order, awarding respondent a judgment for child support paid since June 1, 2000, and awarding respondent attorney fees.  The contempt motion was eventually withdrawn, the parties exchanged discovery and affidavits, and the motion was heard on September 9, 2002.  The district court issued an order for child support from the bench, but stated that the amount “may be adjusted back depending on what else we determine at the next hearing.”  After another hearing, the court filed an October 7, 2003 order concluding that respondent had overpaid child support.   

Both parties moved to amend the October 7 findings and conclusions.  Twice the court reopened the record to allow party submissions with no response from appellant.  On September 17, 2004, the court filed an amended order, from which this appeal was taken.


Child Support

      A district court has broad discretion to provide for the support of the parties’ children.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).  A court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law.  Rutten v. Rutten, 347 N.W.2d 47, 51 (Minn. 1984) (against logic and facts); Ver Kuilen v. Ver Kuilen, 578 N.W.2d 790, 792 (Minn. App. 1998) (application of law).

      Appellant argues that the district court miscalculated her child support arrearages by (1) improperly retroactively modifying the child support order; (2) failing to enforce a prior child support order; and (3) overstating appellant’s ability to pay support

      The district court modified child support as of June 2000, the month that the parties began the split-custody arrangement.  Appellant argues that the earliest permissible modification was March 14, 2002, when respondent moved for modification.

      Generally, retroactive modification of a child support order is permissible as of the date that the motion to modify was served on the opposing party.  Minn. Stat. § 518.64, subd. 2(d) (2004).  At oral argument, appellant’s counsel agreed that respondent’s first motion to establish child support was served on July 17, 2001.  Therefore, modification as of July 17, 2001, was not an abuse of discretion.  Further, pursuant to the parties’ September 17, 2001, agreement, the district court properly modified child support back to the change of custody in June 2000.  As long as the child’s welfare is the paramount concern, a court may accept a stipulation regarding child support.  McNattin v. McNattin, 450 N.W.2d 169, 171-72 (Minn. App. 1990).  It is in the best interests of the child that the money available for his support be used for him and his support.  Therefore, it was not an abuse of the court’s discretion to enforce the June 2000 modification date agreed upon by the parties.

      Appellant also argues that the district court was required to enforce the child support obligations ordered at the September 2002 hearing and that it was error to later order different amounts.  But the court clearly stated at the hearing that it did not have adequate information on appellant’s income, that it had some information to make a temporary order, and that it would adjust the order as appropriate in the future.  A court may make a temporary child support order pending final disposition of a proceeding.  Minn. Stat. § 518.131, subd. 1 (2004).  A temporary order shall continue in full force and effect until amended and may be modified or revoked before the final disposition of the proceeding.  Minn. Stat. § 518.131, subds. 5, 9 (2004).  The court did not abuse its discretion by later modifying its temporary order.   

      Finally, appellant argues that the child support order overstated her ability to pay during her disability, December 1, 2001 to November 30, 2002.  Her specific complaint appears to be that the court (1) used a gross instead of a net figure for disability income and (2) included the value of nanny services during the three or so months that she was not providing those services.

      The district court found that appellant had a combined net monthly income of $2,306 during the period.  The sources were (1) monthly disability payments ($1,106) and (2) the value of room and board provided to her and one child in exchange for appellant’s nanny services ($1,200).  Based on appellant’s $2,306 net monthly income, the court ordered appellant to pay respondent child support of $576.50, which was offset by respondent’s obligation to her of $661.03, netting appellant $84.53 per month.

      A district court’s findings on net income for purposes of child support will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).    

      We find no error in the district court’s calculation of child support during the disability period.  Although appellant argues in her brief that her net disability payment was approximately $800 per month, she cites to nothing in the record showing the source of this net amount.  See Hecker v. Hecker, 543 N.W.2d 678, 681-82 n.2 (Minn. App. 1996) (stating that material assertions of fact in brief must be supported by cite to record) aff’d, 568 N.W.2d 705 (Minn. 1997).  This court’s review of the record revealed appellant’s proposed order showing $1,106 net monthly income from disability and a letter showing $1,106 gross monthly income from disability.  Despite some concern for the accuracy of the correct net figure from the disability payment, this court also recognizes the conflict and the difficulties resulting from prolonged litigation.  On appeal, a party cannot complain about a district court’s ruling that is based in part on that party’s failure to provide the evidence that would allow the district court to fully address the question.  Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003), review denied (Minn. Nov. 25, 2003).  Similarly, her claim that she had only $223 remaining when she had to “pay” child support is not supported by the record or the court’s findings.  As for her provision of nanny services, appellant does not contest the court’s valuation of the nanny services for purposes of determining her net income.  And although the record indicates that she was unable to care for the children for a two-week period, it does not state that she ceased receiving room and board or that she ceased providing nanny services after her hospital discharge.  Because appellant has not shown the net income figure to be clearly erroneous, we have no basis to overturn it.

Conduct-based Attorney Fees

      A district court may award, in its discretion, fees against a party who unreasonably contributes to the length or expense of proceedings.  Minn. Stat. § 518.14, subd. 1 (2004).  An award of attorney fees under the statute “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 awarded respondent $1,500 for attorney fees based on its finding that appellant had acted in bad faith throughout the proceedings.  The court specifically set out examples and noted that appellant failed to bring adequate income information to court on September 17, 2001, at the outset of the proceedings, and refused to provide complete discovery responses to the discovery mailed to her on July 31, 2002.  Based on the record, there is no basis for finding that the $1,500 attorney fee award was an abuse of the court’s discretion.