This opinion will be unpublished and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 Marriage of:
Mina Sarrafan Chaharsooghi, f/k/a
Mina Eftekhari, petitioner,
Amir Homayoun Eftekhari,
Affirmed; motions denied
Concurring specially, Lansing, Judge
Hennepin County District Court
File No. DC 244896
A. Larry Katz,
Katz, Manka, Teplinsky, Due & Sobol, LTD.,
Michael L. Perlman, Karin Gjerset, Perlman Law Office, Woodside Office Park, 10520 Wayzata Boulevard, Minnetonka, MN 55305 (for appellant)
Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.
U N P U B L I S H E D O P I N I O N
On appeal in this child-support modification dispute, appellant-father argues that the record does not support the finding that the parties knew of the child’s medical condition when they negotiated the stipulated child-support provisions in their dissolution judgment. We affirm.
Appellant-husband Amir Eftekhari and respondent-wife Mina Chaharsooghi were married in July 1987. The parties had two children during the marriage, R.E. born on May 26, 1988, and O.E. born on August 18, 1994. In September 2001, the parties’ marriage was dissolved. Under the terms of the dissolution decree, the parties were awarded joint legal and physical custody of the children. The judgment also stated that appellant had a gross monthly income of $6,250 and that respondent had a gross monthly income of $2,340. The parties stipulated to the amount of child support in the decree pursuant to the Valento formula for joint physical custody. Based on the stipulation, appellant’s child support obligation was set at $592 per month.
The dissolution decree also mandated that appellant pay all premiums for the children’s medical insurance. Under the terms of the decree, appellant was to pay all of R.E.’s uninsured or unreimbursed medical and dental expenses, all orthodontia expenses for both children, and all expenses for tutoring through Sylvan Learning Center for both of the parties’ children. In addition, the decree ordered that appellant and respondent equally share the costs of O.E.’s uninsured or unreimbursed medical and dental expenses. The judgment further states that appellant and respondent agreed to apportion the costs of “extracurricular, recreational or other activities that the children participate in which bear a cost to the parties’ between them if both parties agree to the child/children’s participation in said activity.” Finally, the decree provides that if the parties do not agree on the child/children’s participation in any given activity, the party enrolling the child/children in the activity shall bear the full cost of the activity.
In October 2003, R.E. was hospitalized for severe
depression and suicidal ideation. After
his discharge from psychiatric hospitalization, R.E. lived at the Children’s
In March 2005, appellant moved to reduce his child support obligation and modify the terms of the decree such that respondent would be ordered to be responsible for one-half of the extraordinary expenses that appellant now incurs for both parties’ children. Appellant claimed that his extraordinary expenses for R.E. include the costs of boarding school, travel associated with out-of-state schooling, health and psychiatric care, summer camp, and a cell phone. Appellant claimed that extraordinary expenses justifying modification of child support and expense-sharing for O.E. include the cost of health insurance, educational tutoring, piano, ski and martial arts lessons, and summer camp.
The child support magistrate denied appellant’s motion to modify his child support obligation, finding that appellant had failed to meet the burden of proof required to show a change in circumstances rendering his current obligation unfair and unreasonable such that the modification was justified. Appellant subsequently moved for district court review of the magistrate’s decision. The district court affirmed the magistrate’s decision in its entirety, concluding that the magistrate’s order was supported by the record and not made contrary to law. This appeal followed.
After appellant filed his notice of appeal, both parties made cross-motions for attorney fees. By order from this court, the decision on the motion for attorney fees was deferred until consideration of the appeal on the merits.
D E C I S I O N
support obligation may be modified upon a showing of increased or decreased
earnings of a party, increased needs of a child, or extraordinary medical
expenses of a child that render the existing obligation unreasonable and
unfair. Minn. Stat. § 518.64, subd. 2(a)
(2004). The moving party has the burden
of proof in support modification proceedings.
Bormann v. Bormann,
644 N.W.2d 478, 481 (
stipulation may be considered in
child support cases because “it represents the parties’ acquiescence in a
settlement.” McNattin v. McNattin, 450 N.W.2d 169, 171 (
Here, appellant argues that the
district court abused its discretion by denying his motion to modify his child
support obligation. In support of his
claim, appellant contends that since the divorce, he has incurred extraordinary
medical and education expenses in connection with R.E.’s treatment. Appellant asserts that these expenses
include: (1) the $47,000 cost of tuition
of the special boarding school located in
The original dissolution decree states that:
Any medical or dental expenses, other than orthodontia, that are not covered by insurance incurred for the benefit of [O.E] shall be paid one-half by each party. Any medical or dental expenses that are not covered by insurance for the benefit of [R.E.] shall be paid solely by [appellant]. Any uninsured orthodontia expenses incurred for the benefit of either child shall be paid by [appellant].
Any extracurricular, recreational, or other activities that the children participate in which bear a cost to the parties shall be paid by the party who enrolls the child in the particular activity, if the parties do not agree on the child’s participation in the activity. If the parties agree on the child’s participation in an activity, the parties shall pay for the activity as they mutually agree at the time. By way of example only, activities contemplated herein shall include summer camps, sports, field trips, after-school programs, and the like, but not Sylvan Learning Center expenses, for which [appellant] shall be solely liable.
Based on this language, and its finding that (1) the parties were cognizant of R.E.’s learning disabilities at the time of the decree; and (2) that respondent did not acquiesce to R.E. being sent to the Vermont school, the magistrate denied appellant’s request to modify his child support obligation.
Appellant argues that the record does not support the finding that the parties knew of R.E.’s medical condition when they negotiated the stipulated child-support provisions in their dissolution judgment. We disagree. The record reflects that in 1996, R.E. was referred for evaluation due to concerns regarding difficulty following directions, need for instructions to be repeated, poor school performance, fine motor difficulties, and occasional staring events. The record also reflects that in 1997, R.E. received therapy for sensory integration, fine motor deficits, and speech/language deficits. The diagnoses at that time included neuron-sensory processing dysfunction, motor planning impairment, and fine motor impairment. The record further reflects that in 1998 and 2001, R.E. was referred for a psychoeducational evaluation. Therefore, we conclude that the record supports the finding that the parties were sufficiently cognizant of R.E.’s disabilities at the time of the dissolution that the expenses associated with these disabilities were not unforeseen.
Appellant concedes R.E. was receiving occupational therapy for his neurosensory processing disorder before the dissolution. But appellant contends that the great majority of extraordinary educational expenses are related to R.E.’s nonverbal learning disability that was not diagnosed until two years after the parties’ marriage was dissolved.
Appellant’s argument is unsupported
by the record. The record reflects that
R.E. received outpatient psychotherapy in 1998 for a severe nonverbal learning
disability, indicating that the parties were aware of R.E.’s nonverbal learning
disability at the time of the dissolution.
Moreover, appellant’s affidavit dated February 8, 1999, admits that R.E.
is a “‘special needs child,” and that R.E. attends “occupational therapy
services twice a week.” Although
appellant seeks modification of his child support obligation on the basis of
extraordinary medical and educational expenses associated with an allegedly
“recently” diagnosed learning disorder, the reality is that the parties were
aware of R.E.’s special needs at the time of dissolution. The parties were also cognizant of the
financial issues concerning R.E.’s disabilities at the time of the dissolution,
and appellant agreed to be responsible for all of R.E.’s uninsured or
unreimbursed medical expenses and the costs of R.E.’s tutoring through
Under the terms of the dissolution
decree, appellant is liable for all unreimbursed medical expenses for R.E. and
for all expenses relating to any activity that R.E. was enrolled in by
appellant that was not mutually agreed upon.
There is nothing in the record indicating that enrolling R.E. in the
Equity lies with appellant. Respondent’s affluent lifestyle makes it
abundantly clear that her $26,000 salary is just window dressing. She has virtually unlimited funds for
vacations, an expensive lifestyle, and is supported by her overseas relatives
to a point where it does not appear she is denied anything. However, the record does not disclose that
the stipulation was improvident or that either party was misled as to the
financial resources of the other. The
record does not support an inference that R.E.’s condition caught either party
by surprise following the dissolution.
It would be fair for respondent to contribute more than she has to. We note the basic law of bringing up
children. Both parents are responsible. See
Jevning v. Cichos, 499 N.W.2d 515, 516 (
On appeal, both parties made cross-motions for attorney fees. “The award of attorney fees on appeal rests within the broad discretion of the appellate court.” Van Vickle v. C.W. Scheurer & Sons, Inc., 556 N.W.2d 238, 242 (Minn. App. 1996), review denied (Minn. Mar 18, 1997).
Respondent made a marginal motion for attorney fees on appeal based on “need.” Appellant rightfully points out that respondent has “no need.” The district court found that both parties had the resources to pay their own at the trial level. We do likewise at the appellate level.
Appellant has made a motion for bad-faith attorney fees
based on his claim that respondent’s request for need-based attorney fees was
frivolous. See Minn. Stat. § 518.14, subd. 1
(2004) (stating that a court may award, in its discretion, fees against a party
who unreasonably contributes to the length or expense of proceeding). We have fully agreed with appellant’s
opposition to respondent’s request for need-based attorney fees, but that does
not mean that her request was frivolous per se.
The record shows her salary is $26,000 per year and alludes to “other
income.” The “other income” is out there
and that is not in dispute, but there is nothing in the record to substantiate
amounts and frequency. Thus, although we
deny respondent’s motion for need-based attorney fees on appeal, the record
does not support a finding of such bad faith on respondent’s part that
appellant is now entitled to bad-faith attorney fees for having to successfully defend against her request.
Affirmed; motions denied.
I concur in the determination that the district court did not abuse its discretion by denying a modification of child support. The record establishes that the children’s medical and educational expenses were known to both parents when they negotiated the stipulated child-support provisions that were incorporated into their dissolution judgment. Consequently these expenses, although significant, do not constitute a change in circumstances that makes the current child-support obligation unreasonable or unfair.