This opinion will be unpublished and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
In re the Matter of: Jayn
Helen Brown, petitioner,
Todd Jeffrey Brown,
Washington County District Court
File No. F2021333
Bill L. Thompson,
Mark A. Olson, Olson Law Office,
Considered and decided by Kalitowski, Presiding Judge; Willis, Judge; and Stoneburner, Judge.
Appellant challenges the district court’s award of need- and conduct-based attorney fees award to respondent in this dissolution action. Because the evidence does not support the district court’s finding that appellant has the ability to pay need-based attorney fees, and the findings are insufficient to support the conduct-based award, we reverse.
Appellant Todd Jeffrey Brown (husband) and respondent Jayn Helen Brown (wife) were married in 1982 and were granted a dissolution of marriage by decree in 2003. At the time of the dissolution proceedings, they had two minor children, aged 14 and 12.
In May 2002, the district court issued an order for temporary relief, awarding the parties joint legal custody and sole physical custody to wife, setting child support, dividing household goods and furnishings, and reserving the issue of attorney fees. Shortly thereafter, wife moved for relief regarding the division of property, asserting that husband was obstructing access to the property she was awarded in the temporary order. The district court ordered that wife would have three hours of unfettered access to the homestead to remove personal property and awarded wife $500 for attorney fees related to her motion. Approximately a month later, wife again moved for relief related to the property division, alleging that husband emptied the house before the date she was granted access and was dissipating marital assets. Husband disputed wife’s allegations. The district court then reserved the issue of personal property and attorney fees for trial.
In late December 2002, husband shot himself in the thigh. Husband asserts that this occurred while he was cleaning a gun. As a result of, and on the same day of, this incident, wife obtained an ex-parte order for protection. The order for protection was dismissed in January 2003, but at wife’s request the district court restricted husband’s access to the children until husband turned the handgun involved in the shooting over to the police department. After the shooting incident, the children no longer wanted to see husband. In his April 4, 2003 pre-trial statement, husband indicated that he was not seeking custody of the children but was seeking “liberal parenting and access time” with the children. A letter from the court-appointed custody mediator to the district court dated March 5, 2003, notified the court that husband had informed the Family Court Unit that he was no longer pursuing custody or parenting time with his children. But wife asserts that after the court appointed a guardian ad litem (GAL) at wife’s request and ordered the GAL to make a custody recommendation, husband continued to pursue custody. The GAL’s report was issued the day of trial, recommending custody to wife, and husband agreed to abide by the recommendation.
By the trial date in June 2003, the parties had agreed that the personal property division would be handled through binding arbitration and that the only issues to be submitted to the district court were child support and attorney fees. Wife requested $15,000 in need- and conduct-based attorney fees. In support of the request for conduct-based fees, wife argued that husband failed to cooperate with the personal property division and asserted that husband’s failure to concede the custody issue prior to the first day of trial “was really a waste of time based on the facts and [husband’s] full knowledge of his children’s desire not to see him at the present time.” Husband opposed an award of attorney fees to wife, arguing that he was unable to pay and that there was no basis for conduct-based fees because the property disputes were legitimate; he did not remove items from the house in violation of court orders; he only sold assets with the district court’s permission; he discontinued the custody evaluation prior to trial; wife, not husband, requested the GAL; and husband agreed to abide by the GAL’s recommendation.
In October 2003, the district court issued its findings of fact, conclusions of law, order for judgment, and judgment, in relevant part awarding wife $12,000 in attorney fees based on the district court’s finding of wife’s need, husband’s ability to pay, and husband’s conduct. With regard to conduct, the district court stated:
[Husband’s] conduct unreasonably contributed to the length and expense of this proceeding. [Husband] has failed to cooperate on many different occasions, including the exchange of household goods and personal property awarded to [wife]. [Husband] also sought physical custody of the minor children until the day of Trial when he agreed [wife] should be awarded custody. . . .
In response to posttrial motions, the district court amended the findings of fact to add findings on the parties’ reasonable monthly expenses, which had been omitted in the original decree. The district court found that wife, who was unemployed, had reasonable monthly expenses of $2,900 and husband, whose net monthly income was $3,047.30, had reasonable monthly expenses of $3,200. In a later order, the district court reserved husband’s “duty to pay [wife] the $12,000 in [attorney fees] . . . until the court is further able to access [sic] the relative economic position of the parties . . . .” Approximately two months later, without making any additional findings or explanation, the district court reinstated husband’s duty to pay $12,000 in attorney fees as awarded in the original decree. This appeal followed.
“The standard of review for an
appellate court examining an award of attorney fees is whether the district
court abused its discretion.” Gully v. Gully, 599 N.W.2d 814, 825 (
awards in dissolution cases are generally governed by Minn. Stat. § 518.14,
subd. 1, which provides for both need- and conduct-based awards. Geske
v. Marcolina, 624 N.W.2d 813, 816 (
[T]he court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:
(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
Nothing in this section precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.
When awarding attorney fees in a dissolution
case under section 518.14, the district court must indicate whether the award
is based on need or conduct and address the factors set out in the statute for
the type of award involved. Geske, 624 N.W.2d at 816. Conduct-based fees may be awarded regardless
of the recipient’s need or the payor’s ability to pay.
Husband challenges the award of need-based fees on the ground that the evidence does not support the district court’s conclusion that he has the ability to pay. We agree. In the original decree, which contains the findings that husband has the ability to pay need-based fees, the district court cited only husband’s net monthly income and did not consider his reasonable expenses. In a subsequent order, the district court found that husband’s reasonable monthly expenses, excluding child support and maintenance, exceeded his net monthly income by $153. After making this amendment to the decree, the district court reserved the attorney-fees award indicating it would reassess the parties’ relative economic positions, but then, without further explanation or findings, the court reinstated the fee award. Clearly, the district court’s findings on husband’s net monthly income and expenses do not support a determination that husband has the ability to pay need-based attorney fees as required by Minn. Stat. § 518.14, subd. 1(2). Because the evidence does not support the finding that husband is able to pay need-based fees, the district court abused its discretion in awarding such fees and we reverse.
Husband cites Kahn v. Tronnier, 547 N.W.2d 425, 431 n.5 (Minn. App. 1996), review denied (Minn. July 10, 1996), for the proposition that a conduct-based fee award is inappropriate where both parties have contributed to the expense of the proceeding. Husband alleges that wife contributed to the expense of the proceeding in numerous ways. But the district court rejected this argument, and, based on the record, we cannot say that the district court was compelled to find that wife contributed to the length or expense of the proceeding, which makes Kahn inapplicable to this proceeding.
Husband also argues that the finding that he failed to cooperate with the exchange of household goods and personal property is not supported by the record and is partially res judicata because wife was already awarded $500 in attorney fees for one of her motions regarding personal property and may not recover again for that motion. We agree that wife has already been compensated for attorney fees in connection with her first motion on the issue of personal property. As husband points out, in response to wife’s second motion regarding personal property, the district court reserved the issue of personal property and attorney fees for trial. Subsequently, the parties agreed to submit the division of personal property to binding arbitration. There are no findings related to the award of conduct-based fees on (1) what aspect of husband’s conduct, with regard to personal property, unreasonably contributed to the length or expense of the proceeding beyond the $500 previously awarded; (2) what portion of wife’s claimed attorney fees was attributable to such specific conduct; (3) what conduct supports the district court’s statement that husband failed to cooperate “on many occasions;” (4) how that conduct contributed to the length or expense of the proceeding; or (5) what portion of the requested fees was caused by such conduct. Additionally, the district court’s reference to husband’s pursuit of custody until the date of trial is not supported by the record, and, in any event, it is not clear how a parent’s pursuit of custody, despite evidence that might make the pursuit seem futile, “unreasonably” contributes to the length or expense of a dissolution proceeding. See State ex rel. Larson v. Halverson, 127 Minn. 387, 388-89, 149 N.W. 664, 665 (1914) (stating it is thoroughly settled law that parents have a natural right to care, custody, and control of their minor children). We are not aware of, nor does wife direct us to, any authority that it is “unreasonable” for a parent to pursue custody under any circumstances. We conclude that the district court’s findings do not support the conclusion that wife is entitled to an award of conduct-based fees and therefore reverse that award as an abuse of discretion.
 Wife asserts in her brief that husband has additional
income from his mother and girlfriend but has not filed a notice of review
challenging the district court’s determination of husband’s income and
expenses. Therefore we decline to
address these questions.
 We do not foreclose the possibility that the method of such pursuit, on different facts, could justify an award of attorney fees.