This opinion will be unpublished and

may not be cited except as provided by

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








Russell Peterson, et al., petitioners,





Scott Lambert,




Filed April 25, 2006


Toussaint, Chief Judge


Sherburne County District Court

File No. F4-04-2382


Stephen R. Conroy, Conroy Law Office, Ltd., 261 East Broadway, Post Office Box 999, Monticello, MN 55362 (for appellants)


David D. Himlie, 325 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for respondent)


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Appellants Russell and Kathy Peterson challenge an order awarding attorney fees to respondent Scott Lambert.  Because we conclude that the record does not support an award of attorney fees and that the district court erred by basing the award on evidence submitted after a motion for amended findings, we reverse.


            In an order granting the Petersons fixed-schedule visitation of their grandchildren, the district court awarded Lambert $2,925 in need-based attorney fees.  The Petersons argue that the record does not support an award of attorney fees and that the district court erroneously considered evidence submitted after their motion for amended findings.  We review a district court’s award of attorney fees for an abuse of discretion.  Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).  We defer to the district court’s findings of fact unless those findings are clearly erroneous.  State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn. App. 1999).  Interpretation and application of procedural rules are legal issues, which we review de novo.  Clark v. Clark, 642 N.W.2d 459, 464 (Minn. App. 2002).

A district court shall award need-based attorney fees when necessary for the good-faith assertion of a party’s rights if the party seeking fees lacks the ability to pay them and the party from whom fees are sought has the ability to pay.  Minn. Stat. § 518.14, subd. 1 (2004).  A district court must ordinarily make specific findings on these factors, but reversal for a lack of findings is not necessary if the order reasonably implies that the factors were considered and the district court had access to the parties’ financial records and was familiar with the procedural history of the case.  Geske v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001).   

Based on affidavits submitted after the Petersons’ motion for amended findings, the district court found that “attorney fees are necessary for the good-faith assertion of [Lambert’s] parental rights.”  The district court made specific findings regarding Lambert’s monthly income and expenses and the Petersons’ income.  It did not make specific findings regarding the Petersons’ monthly expenses, but it noted that the Petersons “do not support others and their housing payment is relatively modest” and that they “have the means to pay [Lambert’s] attorney’s fees.” 

            The record does not support the finding that the Petersons have the means to pay Lambert’s attorney fees.  The record shows that the Petersons’ monthly living expenses exceed their monthly income by more than $1,700 and that they draw on their pension accounts to cover the difference.  There is no information in the record regarding the Petersons’ pension accounts, but the record shows that the Petersons are having difficulty paying their own attorney.  Because the district court’s findings fail to demonstrate that the Petersons have the ability to pay Lambert’s attorney fees and because such a finding is clearly erroneous, we conclude that the district court abused its discretion by awarding need-based attorney fees.

            The district court also erred by considering evidence beyond that which was part of the record when the Petersons filed their motion for amended findings.  A motion to amend findings must be based on the files, exhibits, and minutes of the court, not on evidence that is not a part of the record.  Otte v. Otte, 368 N.W.2d 293, 299 (Minn. App. 1985) (applying Minn. R. Civ. P. 52.02).  When considering a motion for amended findings, the district court “must apply the evidence as submitted during the trial of the case.”  Johnson v. Johnson, 563 N.W.2d 77, 78 (Minn. App. 1997) (quotation omitted), review denied (Minn. June 30, 1997).  Here, because the record contained no information about the parties’ financial resources, the district court “left the record open to permit submission of affidavits regarding attorney’s fees.”  We conclude that the district court erred by leaving the record open and considering new evidence on the Petersons’ motion for amended findings.