This opinion will be unpublished and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
Kristin Elizabeth Fischer, petitioner,
Scott Bruce Cottington,
Filed November 28, 2006
Hennepin County District Court
File No. FA 242699
Marc G. Kurzman, Kurzman Grant Law Office,
Geraldine Carlen Steen, Elizabeth B. Niemioja, Beckman & Steen, 14550 Excelsior Boulevard, Suite 206, Minnetonka, MN 55345 (for respondent).
Considered and decided by Peterson, Presiding Judge; Randall, Judge; and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant-wife challenges the district court’s order terminating spousal maintenance, denying modification of child support, awarding respondent-husband reimbursement of medical and educational expenses, quashing subpoenas, denying an evidentiary hearing, and awarding respondent conduct-based attorney fees. Because the district court correctly applied the law and properly exercised its discretion, we affirm on all issues.
respondent-husband were divorced on
During November 2002, appellant moved
to increase and extend spousal maintenance.
The court found changed circumstances rendering the decree unreasonable
and unfair within the meaning of Minn. Stat. § 518.64 (2004). Specifically, the court found appellant’s
mental health had deteriorated such that she was unable to update her degree
and obtain recertification in the field of speech pathology. Appellant found the graduate level speech
pathology course work too difficult.
Without the recertification,
however, appellant was unable to support herself and her two children. Consequently, appellant changed programs of study and enrolled in a public health masters program at the
In July 2004, appellant moved for a cost of living increase in respondent’s child support obligation. The court denied appellant’s request and neither party appealed.
Beginning in August 2005, appellant
and respondent filed cross-motions on the issues of spousal maintenance, cost
of living adjustments, reimbursement of medical and dental expenses, and
attorney’s fees. The district court
consolidated and heard these issues on
D E C I S I O N
argues the district court abused its discretion in terminating spousal
maintenance by failing to consider all factors relevant to modification. Modification of spousal maintenance is in the
sole discretion of the district court. Youker v. Youker, 661 N.W.2d 266, 269
(Minn. App. 2003), review denied (
Minn. Stat. § 518.64, subd. 2(a) (2004), provides that a district court may modify spousal maintenance
upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party . . . ; (3) receipt of assistance . . . ; (4) a change in the cost of living for either party . . . any of which makes the terms unreasonable and unfair.
this statute, a party requesting modification must “demonstrate that there has
occurred a substantial change in one or more of the circumstances identified in
the statute and second, . . . show that the substantial change has the effect
of rendering the original award unreasonable and unfair.” Hecker
v. Hecker, 568 N.W.2d 705, 709 (
a motion for modification, the court shall consider “in addition to all other
relevant factors, the factors for an award of maintenance under section 518.552
that exist at the time of the motion.”
statutory factor for determining the type or amount of maintenance is dispositive.” Erlandson, 318 N.W.2d at 39.
Appellant argues the district court “only considered a small portion of the relevant factors in existence at the time of the motion, as evidenced by the lack of detail in its findings of fact.” Specifically, appellant argues the district court failed to consider that appellant’s monthly expenses still exceeded her income by $1,400; that appellant had previously attempted to obtain recertification of her degree but found the course work too difficult; and that appellant’s mental health issues were still prevalent.
The district court found, due to changed circumstances, that appellant was no longer in need of spousal maintenance. Appellant holds a master’s degree and has partially completed a second master’s program. Appellant works full-time as a speech pathologist earning a gross annual income of $43,000. The court concluded that appellant’s mental health issues “no longer presented an impediment to her ability to work full-time and to support herself.” The court took as evidence the fact that appellant works full-time earning a salary of $43,000. Also, by negative inference due to appellant’s refusal to comply with a court order to permit respondent access to appellant’s therapy records, the court found that appellant had not been in therapy for her mental health issues for at least six months.
The statue requires a showing of one
or more of the listed factors, with the first being “substantially increased or
decreased earnings of a party.”
Appellant argues the district court abused
its discretion by denying appellant’s motion for a modification of child
support. Comparable with the
modification of spousal maintenance, the district court has broad discretion in
determining child support obligations. Rutten v. Rutten, 347 N.W.2d 47, 50 (
Appellant argues the district court failed to consider relevant factors other than fluctuations in respondent’s income, including respondent’s ability to pay a cost of living adjustment. In addition, appellant suggests that the diagnosis of the parties’ minor son with Asperger’s Syndrome, an autism-spectrum disorder, necessitates increased child support.
“[Child] support cannot be modified
absent findings of both substantially
changed circumstances and that the
substantially changed circumstances render the existing support award
unreasonable and unfair.” Bormann v. Bormann, 644 N.W.2d 478, 481
(Minn. App. 2002);
There were no changed circumstances where appellant’s income had increased and her expenses had decreased even though spousal maintenance was terminated. The parties contemplated termination of maintenance in the original dissolution decree. Also, fluctuations in respondent’s income were expected at the time of the marriage dissolution and therefore did not constitute changed circumstances. Again, the district court disregarded appellant’s claims “that [r]espondent may be hiding income” and reiterated that “the court has no reason to believe he is doing so.” The court also noted that respondent is currently paying above the statutory cap on his obligation. See Putz v. Putz, 645 N.W.2d 343, 348 (Minn. 2002) (holding that when a party seeks modification of a support order on the basis of a change in the obligor’s earnings, the support obligation calculated under the guidelines helps a magistrate ascertain whether a modification is warranted).
As is evidenced by the record,
appellant failed to satisfy her burden of showing substantially changed
circumstances and that the existing award is unreasonable and unfair. Appellant’s concerns for her son’s health
condition, although reasonable, were not found to constitute “changed
circumstances.” The original judgment
and decree provides for coverage of additional medical and educational services
expenses that might arise from the parties’ minor son’s condition by requiring
appellant and respondent to equally share unreimbursed expenses. Appellant argues that their son’s special
needs “inhibited [her] from completing the necessary recertification required
to maintain her current employment and rate of pay.” However, appellant has found and currently
maintains full-time employment. The
award of child support is meant for supporting the child and is not intended to
cover “adjustments in appellant’s schedule.” See
State ex. Rel. Miller v. Miller, 446 N.W.2d 199, 200 (
Appellant argues the district court
erred by ordering her to reimburse respondent for one-half of the children’s
medical and educational expenses. We
disagree. A minor child’s medical needs
are in the nature of child support. Korf v. Korf, 553 N.W.2d 706, 708 (
The original dissolution decree stated: “Each party shall pay one-half of all medical and dental expenses for the children that are not covered by insurance, as well as any special educational services expenses, aside from private school tuition.”
presented the court with receipts and documentation of various unreimbursed
medical and educational expenses requesting payment from appellant. Appellant argued in the alternative that she
too had paid for similar items and requested reimbursement. Further, appellant claims that some of the
amounts requested from respondent pertain to unnecessary expenditures for which
appellant previously put respondent on notice of her refusal to pay. The court, however, found that appellant “has
not documented [her similarly incurred expenses]” and ordered her to reimburse
respondent. Therefore, we infer that the
district court found appellant’s claimed expenses to lack credibility. The appellate court defers to credibility
determinations made by the district court.
Sefkow v. Sefkow, 427 N.W.2d
203, 210 (
The district court granted respondent’s motion and ordered appellant to reimburse respondent in the amount of $11,764.51. In addition, the district court provided that “[t]his amount may be subject to offset in the event that [appellant] has incurred similar expenses on behalf of the children that are provable and reimbursable.” Based on this last assertion, the district court provided appellant with an opportunity for reimbursement of the expenses she alluded to. The record does not indicate an abuse of discretion given the credibility determinations made by the court and the reimbursement offset available to appellant.
The district court quashed eight
subpoenas issued by appellant to colleagues and relatives of respondent prior
The district court “shall exercise
its power with liberality in issuing [an] order which justice requires for
the protection of parties or witnesses from unreasonable annoyance, expense,
embarrassment, or oppression.” Baskerville v. Baskerville, 246
the court, upon motion made promptly, and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable or oppressive, or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.
Here, the district court found appellant’s subpoenas, issued only “1 or 2 days prior to [the district court] hearing,” sought “records of marginal or no relevance (e.g., cell phone records), going back 8 years in some cases” and “gave witnesses little or no time to respond or even move to quash.” The district court stated that “[appellant] suggests that respondent may be hiding income but the court has no reason to believe he is doing so.” The district court has not abused its discretion where it found and identified specific reasons for quashing appellant’s subpoenas and denying appellant’s motion to require respondent to disclose financial records.
The district court has discretion to
determine whether an evidentiary hearing is required. Mathias
v. Mathias, 365 N.W.2d 293, 297 (
This discretion of the trial court [to order an evidentiary hearing] should be exercised only in exceptional cases; for if parties were permitted, as a matter of course, to have every issue of fact in every action tried on oral testimony and to require the formalities of a final trial of an action on its merits to be observed, it would result in vexatious and burdensome delays, and in many cases in a miscarriage of justice.
A motion for modification of support
is generally determined based on the affidavits without a need for
cross-examination. Mathias, 365 N.W.2d at 297.
A court need not conduct an evidentiary hearing when considering support
modification if the facts are not complicated and the evidence can be fairly
and efficiently presented by affidavits and documentary evidence. Id;
see Axford v. Axford, 402 N.W.2d 143,
145 (Minn. App. 1987) (determining that district court did not abuse its
discretion when it refused to hold an evidentiary hearing based on affidavits
lacking specific, credible evidence to support the allegations). However, if the “facts are complicated or the
affidavits so conflicting as to render cross-examination essential, then the
desirability of expeditious procedure must give way to a more formal
Here, the parties submitted affidavits and documentation supporting their motions. The district court made findings supporting its decisions regarding spousal maintenance, child support, and reimbursement for medical and educational expenses. Although the parties disagree, such disagreement is customary and expected given the allegations and modifications sought by each and, here, do not present complicated or peculiar issues. Given the documentation presented, the court did not abuse its discretion in denying an evidentiary hearing.
Appellant argues that she did not unnecessarily
contribute to the length and expense of the proceedings, and, therefore, should
not be penalized and ordered to pay attorney fees. The district court awarded respondent
“$7,335.48 as and for conduct-based attorney’s fees.” Minn. Stat. § 518.14, subd. 1 (2004) permits
the court, in its discretion, to award conduct-based attorney fees. Sharp
v. Bilbro, 614 N.W.2d 260, 264 (Minn. App. 2000), review denied (
When awarding conduct-based attorney fees, the district
court must make findings regarding their basis “to permit meaningful appellate
review” of the award. Kronick v. Kronick, 482 N.W.2d 533, 536 (
Here, the district court found that appellant refused to cooperate with discovery by failing to appear at a deposition, failing to bring subpoenaed records, and ignoring the court’s discovery order to sign and turn over medical and therapy records. The district court found that appellant “brought 3 non-meritorious motions” within three years and subpoenaed witnesses “seeking records of marginal or no relevance.” Appellant argues the court incorrectly accused her of bringing three non-meritorious motions where appellant only brought one. Appellant’s assertion is technically accurate; but that fact is only “one facet of the diamond.” Appellant still refused to comply with a court discovery order. Instead of refusing to comply, appellant could have sought a protective order from the court. Because the district court identified the “offending conduct,” the conduct occurred during litigation, and the district court found that the conduct was “inappropriate” and caused respondent to “incur unnecessary attorney’s fees,” the district court did not abuse its discretion by awarding respondent conduct-based attorney fees.
 In 2003, when appellant sought an increase and extension of spousal maintenance, she was earning $22,000. Appellant’s current annual income of $43,000 is almost double her previous earnings. Appellant’s current income also exceeds her expected income of $33,000 to $35,000 as predicted during the 2003 spousal modification hearing based on testimony regarding appellant’s mental health issues.
 Appellant has continuously accused respondent of hiding income. In 2003, the district court stated, in the Amended Order Modifying Maintenance, “[t]he court has not found that respondent hid any income.” Here again, the district court makes the credibility determination that there is no reason to believe that respondent is hiding income.