This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Daria Rene Reed,
n/k/a Daria Rene Radec,
Filed November 22, 2005
Scott County District Court
File No. 2000-3763
A. Rhett Taber, Esq., Olive, Taber & Owens, P.A., 5270 West 84th Street, Suite 300, Bloomington, MN 55437 (for respondent)
Considered and decided by Dietzen, Presiding Judge, Klaphake, Judge, and Crippen, Judge.
Appellant’s challenge to his maintenance obligation began with a 2004 motion, and respondent moved in return for an award of attorney fees. Following a discovery dispute regarding respondent’s 2002 and 2003 income tax returns, the district court allowed respondent to submit the returns after the hearing. The court then denied appellant’s motion, holding that although respondent’s net monthly income had increased from $1,405 to $1,655, the increase did not show that appellant’s existing maintenance obligation was unreasonable or unfair. The court also denied respondent’s motion for fees. The court subsequently denied appellant’s request for amended findings, and on this occasion the court awarded respondent $500 for part of her fees incurred in the post-hearing proceedings. Appellant disputes denial of his request for relief from maintenance, and respondent disputes the court’s denial of her initial motion for fees.
The district court has
discretion to decide whether to modify a maintenance award based upon a showing
of substantially changed circumstances rendering the existing obligation
unreasonable and unfair. Minn. Stat.
§ 518.64, subd. 2 (2004); Claybaugh
v. Claybaugh, 312 N.W.2d 447, 449 (
The court’s finding of respondent’s current net monthly income assumes that she works 24 hours per week. Noting that she had worked more that 24 hours per week at times, appellant argues that that finding understates respondent’s income. But the district court found that respondent’s medical condition left her “unable” to continue working the schedule she previously tried to maintain. This finding is not clearly erroneous on this record and is consistent with the portion of the stipulated divorce judgment stating that respondent’s medical condition made it “doubtful” she would be able to return to her career “on more than a part-time basis.” The record also permits, without clear error, the district court’s refusal to find respondent’s income to be the amount appellant claims she stated on a financial aid form for the parties’ son.
Appellant argues that respondent’s current $1,655 “net monthly income from employment” must be contrasted with earned income of $943 stated in the divorce judgment, $712 less than her current earnings. But in addition to income from employment, the divorce judgment found that respondent received workers’ compensation benefits, making her then-total net monthly income $1,405. Respondent no longer receives the compensations payments.
Appellant argues that the past compensation
payments should be overlooked because the district court, when calculating
respondent’s current income, disregarded her receipt of income from what he
alleges is an investment account.
Respondent argues that the account may be a retirement account. Because evidence on the nature of the account
was not presented to and considered by the district court, we do not address
this aspect of appellant’s argument. Thiele v. Stich, 425 N.W.2d 580, 582 (
Appellant notes that respondent claimed reasonable monthly expenses of $3,700 and argues that this amount is overstated. But the district court merely found that respondent’s reasonable monthly expenses were “in excess of $3,000,” more than $400 higher than she experienced when the divorce judgment was entered, and appellant has not shown, on this record, that this figure is clearly erroneous. The court’s exercise of discretion is supported by the findings that respondent currently has resources much less than $3,000. Appellant has failed to show error in the court’s assessment of respondent’s needs.
Appellant also argues that the district court overstated his ability to pay maintenance by not considering the fact that emancipation of the parties’ child precludes him from taking a dependency exemption for that child. Because this question was not presented to and considered by the court, we decline to consider it. Thiele, 425 N.W.2d at 582.
challenges the district court’s receipt and consideration of respondent’s 2002
and 2003 tax returns. Evidentiary
rulings are not reversible absent an abuse of discretion causing prejudice to
the objecting party. Uselman v. Uselman, 464 N.W.2d 130, 138
Under Minn. Stat.
§ 518.14, subd. 1 (2004), need-based attorney fees “shall” be awarded if
the district court finds, among other things, that the party from whom fees are
sought can pay them. Also, the court has
discretion to award “additional” conduct-based fees if a party “unreasonably
contributes to the length or expense of the proceeding.”
The district court’s initial order found that appellant’s current net monthly income was $3,058.27, and the court declined to reduce his $683 monthly maintenance obligation. Although appellant did not submit evidence of his current monthly expenses, the 2000 divorce judgment states that he and the parties’ child then had reasonable expenses of $2,780. The child is now emancipated. If, since the divorce, appellant’s monthly expenses increased by no more than the expenses previously attributable to the child, an amount significantly less than what the court found respondent’s expenses had increased since entry of the judgment, appellant lacked the ability to contribute to respondent’s attorney fees. Denial of respondent’s first motion for need-based attorney fees is consistent with the ability-to-pay prong of Minn. Stat. § 518.14, subd. 1.
The district court
initially refused to award conduct-based attorney fees, stating there was
“insufficient evidence” that appellant acted in bad faith. Whether a party acts in bad faith is a
credibility determination on which we defer to the district court. See
Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 728 (
Finally, we reject
appellant’s argument that the court granted respondent’s second motion for
attorney fees without identifying the authority for the award. It is evident that the fee award rested on
the district court’s observation, stated in a memorandum attached to its order,
that appellant’s motion to amend “lacks any merit and caused [respondent] to
incur additional expense in relitigating [appellant’s] claims.” We infer from this statement that the fees
were awarded as conduct-based fees under Minn. Stat. § 518.14, subd.
Geske v. Marcolina, 624 N.W.2d 813,
816 (Minn. App. 2001) (analyzing fee award for which no authority was given
under Minn. Stat. § 518.14, subd. 1, because case was a family-law matter
and family-law attorney fees awards are “[g]enerally” governed by that statute). We also reject appellant’s argument that the
award lacked a basis in the record. The
crux of the award was the district court’s determination that, because
appellant’s motion did not satisfy the criteria for a motion for amended
findings set out in Lewis v. Lewis,
572 N.W.2d 313, 316 (Minn. App. 1997), review
denied (Minn. Feb. 19, 1998), the motion was merely one for
reconsideration. Review of
award to respondent for the $1,500 in attorney fees she incurred in the post-hearing motion proceedings.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 We reject respondent’s argument that, under Lewis v. Lewis, 572 N.W.2d 313, 315-16 (Minn. App. 1997), review denied (Minn. Feb. 17, 1998), this appeal is untimely because the order denying appellant’s motion to amend states that his motion was essentially one for reconsideration, meaning it did not stay the time to appeal. See State ex rel. Fort Snelling State Park Ass’n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169, 178 n.1 (Minn. App. 2003) (addressing post-Lewis changes in the law).
 Appellant argues that respondent’s challenge to the denial of her first attorney-fee motion is improper because she did not file a notice of review, but the record demonstrates a proper filing.