This opinion will be unpublished and

may not be cited except as provided by

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






Kristin Elizabeth Fischer, petitioner,




Scott Bruce Cottington,



Filed November 28, 2006


Randall, Judge



Hennepin County District Court

File No. FA 242699



Marc G. Kurzman, Kurzman Grant Law Office, 219 Main Street Southeast, Suite 403, Minneapolis, MN 55414 (for appellant);


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.


            Appellant-wife and respondent-husband were divorced on November 21, 2000, following 15 years of marriage.  The dissolution decree provided for temporary spousal maintenance, child custody, and child support.  The parties acknowledged appellant’s ability to become self-supporting given time to update her degree and obtain recertification in her field of speech pathology.  The court awarded joint legal custody of the parties’ two minor children with appellant receiving primary physical custody subject to reasonable visitation for respondent.  The court ordered respondent to pay child support in addition to respondent agreeing to pay for private school tuition and medical insurance.  The parties also agreed to evenly split any subsequently arising out-of-pocket medical, dental, or special educational services expenses.

            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 University of Minnesota.  Believing appellant could complete this program, the district court granted appellant’s motion for modification of maintenance, both increasing and extending respondent’s obligation to pay rehabilitative spousal maintenance.  The court specifically declined to order permanent maintenance.

            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 November 10, 2005.  The resulting November 15, 2005 order (1) granted respondent’s motion to terminate spousal maintenance; (2) denied appellant’s motions for modification of child support, an evidentiary hearing, and disclosure of respondent’s financial records; (3) granted respondent’s motion for reimbursement of medical expenses; (4) granted respondent’s motion to quash appellant’s subpoenas; and (5) granted respondent’s motion for conduct-based attorney fees.  This appeal followed.



Appellant 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. Aug. 5, 2003).  “The standard of review on appeal from a trial court’s determination of a maintenance award is whether the trial court abused the wide discretion accorded to it.”  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  The district court abuses its discretion when its decision is “against logic and the facts on record.”  Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. App. 2004) (quotation omitted).

            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.


Under 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 (Minn. 1997).  The party seeking modification of a maintenance order has the burden of proof.  Borchert v. Borchert, 391 N.W.2d 74, 75 (Minn. App. 1986).

            Upon 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.”  Minn. Stat. § 518.64, subd. 2(c) (2004).  “[N]o single
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.[1]  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.”  Minn. Stat. § 518.64, subd. 2(a).  The record supports the district court’s finding that appellant experienced such a “substantial increase.”  From the outset, the parties acknowledged that spousal maintenance was only meant to be temporary while appellant got back on her feet.  The facts on the record, including appellant’s ability to work full-time and earn a salary of $43,000, support the district court’s decision to terminate spousal maintenance.


            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 (Minn. 1984).  Such determinations will be reversed only upon a showing of abuse of discretion.  Id.          

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); Minn. Stat. § 518.64, subd. 2(a).  The district court found that appellant had not met this burden.  We agree.

            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.”[2]  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 (Minn. App. 1989) (stating that parents are primarily responsible for supporting their children).  We conclude that the district court did not abuse its discretion in denying modification of child support.



            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 (Minn. App. 1996).  Child support may be modified upon a finding of substantially changed circumstances rendering the existing obligation unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a).  On appeal, modifications of support decisions are reviewed for abuse of the district court’s “broad discretion.”  Putz, 645 N.W.2d at 347.

            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.”       

Respondent 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 (Minn. 1988).

            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 to the November 10, 2005 hearing.  Appellant contends that the district court’s quashing of “properly served” subpoenas deprived her of “relevant . . . [information] essential to a fair adjudication.”  Appellant argues that respondent is hiding and under-reporting income.  We disagree.  Whether to quash a subpoena is discretionary with the district court.  Phillippe v. Comm’r of Pub. Safety, 374 N.W.2d 293, 297 (Minn. App. 1985).

            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 Minn. 496, 506, 75 N.W.2d 762, 769 (1956).  Minn. R. Civ. P. 45.02 provides that

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 (Minn. App. 1985). 


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.


Id.(quoting Saturnini v. Saturnini, 260 Minn. 494, 496, 110 N.W.2d 480, 482 (1961)).  The district court’s decision to deny an evidentiary hearing is reviewed for an abuse of discretion.  Tarlan v. Sorensen, 702 N.W.2d 915, 922 (Minn. App. 2005).

            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 hearing.”  Id. (quotation omitted).

            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 (Minn. Sept. 26, 2000).  Such a discretionary award will not be disturbed absent an abuse of that discretion.  Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991).

            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 (Minn. App. 1992).  To support such an award, the district court must identify the offending conduct, the conduct must have occurred during the proceedings, and the conduct must be found to have unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1 (1997); Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  A showing of bad faith is not necessary to support an award of conduct-based attorney fees.  Geske, 624 N.W.2d at 813.  Awarding conduct-based attorney fees may be appropriate when a party unnecessarily delays the proceedings by taking “duplicitous and disingenuous” positions or by engaging in conduct that increases the costs of litigation.  Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999).

            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.


[1] 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.

[2] 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.