This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1918

A05-2167

 

In re the Marriage of: Anastasia M. Farman,

†petitioner,
Appellant,

vs.

David C. Farman,
Respondent.

 

Filed January 16, 2007

Affirmed

Peterson, Judge

 

Hennepin County District Court

File No. DC-225-721

 

Anastasia M. Farman, 19046 Bruce B. Downs Boulevard, #217, Tampa, FL33647 (pro se appellant)

 

John R. Jesperson, Jesperson Law Office, 400 South Fourth Street, Suite 1012, Minneapolis, MN55415 (for respondent)

 

††††††††††† Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D†† O P I N I O N

PETERSON, Judge

††††††††††† On appeal in this family-law matter, pro se appellant-mother argues that (1) the district court was biased; (2) the record does not support the district courtís findings on parenting time; (3) the district court erred in determining medical and child-care expense reimbursement; (4) the district court erred in declining to impute income to father and in determining the amount of child support; and (5) the district court erred in declining to award her attorney fees.† We affirm.

FACTS

††††††††††† The parties, who were divorced in 1998, are the parents of two minor sons, D.F., born April 21, 1992, and K.F., born December 28, 1994.† Pursuant to the partiesí stipulation, the dissolution judgment granted sole legal and physical custody of the children to appellant-mother Anastasia M. Farman and provided for respondent-father David C. Farman to have supervised parenting time.† At the time of dissolution, father was earning a gross monthly income of $2,000, with a net monthly income of $1,452.† Fatherís reasonable monthly expenses for himself and the children were $2,082.† The dissolution judgment set fatherís child-support obligation at $435 per month, subject to cost-of-living adjustments.†

††††††††††† There has been considerable litigation between the parties since the divorce, due in part to motherís obstruction of fatherís efforts to exercise parenting time.† Mother has repeatedly failed to comply with court-ordered parenting time and has made unsubstantiated abuse allegations against father.† Father filed the current motion to modify parenting time in July 2003, seeking unsupervised and overnight parenting time.†

††††††††††† The district court issued an interim parenting-time order on June 7, 2005.† After noting motherís reasons for objecting to overnight parenting time, specifically concerns about the childrenís special needs and medication and fatherís behavior toward the children, the district court found that none of those reasons justified denying overnight parenting time.† The court explained:

††††††††††† 10.† [Father], in the past has minimized the boysí health problems including their learning disabilities and their dietary needs.† He alleges that [mother] has exaggerated the childrenís problems to exert her authority and control.† At this time, however, [motherís] proof of the boysí problems is more convincing than [fatherís] assertion of [motherís] exaggerations.† Thus it is necessary that [father] observe the medically prescribed regiments.† [Father] agrees that he will do that.† He agrees that he will monitor the boysí diets and that he will administer medications that have been prescribed.† [Mother] will have to furnish those medications.† Previously she has not done so.

 

††††††††††† In fact [father] has previously observed the dietary restrictions by taking the children to restaurants where the mother also takes them, and where he knows there are menu items that accommodate their dietary restrictions.† [Father] also stated on the record that he would continue to be supportive of the dietary restrictions.

 

††††††††††† . . . .

 

††††††††††† 14.† [Mother] alleges that [father] has in the past been physically abusive to her and to the children.† In 1996 there was an incident in connection with which the mother obtained an Order for Protection on [D.F.ís] behalf.† In that incident, [D.F.] (who was then four years of age) was about to run out into the street between some parked cars.† [Father] stopped him and spanked him.† The motherís concern was that [father] spanked him while [father] was angry.† Based on that evidence, the Court issued an Order for Protection in part because [D.F.] was a special needs child.† This incident sounds to be not unlike the kind of incident that many parents experience and respond intuitively in a state of excitement to punish a child for conduct that could have resulted in serious injury to the child.† [Mother] admits that she previously spanked [D.F.] when he lit a match and set his shoelaces on fire.

 

(Footnote omitted.)† The district court specifically addressed additional incidents of abuse alleged by mother and found that the allegations were not credible.† The court explained:

††††††††††† 16.† The history of this case is that the mother makes new allegations when it suits her purposes to do so, and it is more likely than not that she makes these allegations to frustrate the fatherís attempts to visit with the boys.† There are other such incidents of allegations by the mother timed to interfere with the fatherís parenting time.†

 

The district court also found that both boys missed their father, wanted to spend more time with him, and have suffered by the loss of regular contact with him.†

††††††††††† The district court issued its final parenting-time order on July 21, 2005.† The order incorporates the findings in the June 7, 2005 order.† The district court found that nothing about the childrenís disabilities should deprive father of his parenting time, including overnight parenting time, and that father needed to learn to parent the children and had been provided with information and assistance in the course of these proceedings.† The district court expressed concern about the childrenís lack of a relationship with extended family and indicated that father would be more likely to facilitate such relationships.† But the court acknowledged that fatherís extended family mostly resided in distant foreign countries and that it was unknown whether members of motherís extended family would be interested in having relationships with the children.† The district court granted father four weeks of overnight parenting time each year, to be taken in one-week increments, with three of the visits to occur in Minnesota and one in Florida.† The district court also granted father the right to additional parenting-time weekends with the children in Florida if he could afford to do so.† The order also denied fatherís motions for compensatory parenting time, conduct-based attorney fees, and child-support modification.†

††††††††††† By order filed August 31, 2005, the district court denied motherís motion for an upward child-support deviation to cover the additional cost of food for D.F. and K.F.; ordered father to pay 12% of 75% of the cost of work-related child-care expenses, retroactive to May 16, 2003, the date of motherís motion for child-care contribution; awarded mother judgment in the amount of $11,982.76 for child-support arrearages through May 15, 2005; and awarded mother judgment in the amount of $2,856.76 for past-due payments for medical expenses and orthodontic expenses.†

††††††††††† Mother appealed the July 21 and August 31, 2005 orders.

D E C I S I O N

I.

††††††††††† Judges must be sensitive to the appearance of partiality and should take measures necessary ďto assure that litigants have no cause to think their case is not being fairly judged.Ē† McClelland v. McClelland, 359 N.W.2d 7, 11 (Minn. 1984).† Canon 3(D) of Minnesotaís Code of Judicial Conduct requires a judge to disqualify him or herself from a proceeding ďin which the judgeís impartiality might reasonably be questioned.Ē† ďPrior adverse rulings, however, clearly cannot constitute bias. . . .Ē† Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986).

††††††††††† Mother argues that the district court acted improperly ďby developing a case on behalf of [father]Ē because mother submitted ďtremendous documentationĒ to support her claims and father relied on his own petitions and affidavits.† Father, however, submitted evidence documenting his financial status, including income tax returns, purchase agreements, records relating to an accident in which he was injured, an itemization of income from and expenses for a rental property, and a detailed itemization of expense records for 2002 and 2003.† Although he did not produce all of the documents requested by mother, the district court found that her discovery requests were ďsometimes overbroad and unduly burdensome.Ē† Fatherís affidavits were based on personal knowledge and, thus, properly considered by the district court.† See Ward v. Ward, 453 N.W.2d 729, 733 (Minn. App. 1990) (signed and notarized affidavit of personal injury attorney, which unequivocally stated that settlement was to compensate for personal injuries and not lost wages, was admissible and relevant on issue of whether settlement proceeds nonmarital), review denied (Minn. June 6, 1990).† Mother also argues that the district court was biased because it found that she prevented father from exercising parenting time despite evidence presented by mother that father sometimes declined to exercise parenting time and, other times, prevented mother from getting the children to Minnesota for parenting time; and ignored evidence of abuse committed against the children by father.† Motherís arguments, which go to the credibility of evidence, do no more than express disagreement with the district courtís decision.† When there is conflicting evidence, appellate courts defer to the district courtís credibility determinations. †Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

††††††††††† Mother argues that the district court acted improperly by personally contacting her alternative contact person.† Mother offers no explanation as to why that was improper.† An assignment of error based on mere assertion and not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection.† State by Humphrey v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997); see Heinsch v. Lot 27, Block 1 Forís Beach, 399 N.W.2d 107, 109 (Minn. App. 1987) (stating that ď[p]ro se litigants are generally held to the same standards as attorneysĒ).

††††††††††† Mother argues that the district courtís reference to Munchausenís syndrome in an order shows bias.† In an April 18, 2005 order, the district court admitted expressing an analogy to a case involving Munchausenís syndrome, explaining, ďWhen the case originally came before the undersigned, it came with a history of [mother] denying parenting time and frequently alleging, as part of her basis for that denial, that the children had serious diet problems that [father] was failing to observe.Ē† In the June 7, 2005 order, the district court found, ďAt this time, . . . [motherís] proof of the boysí problems is more convincing than [fatherís] assertion of [motherís] exaggerations.Ē† In light of the findings in the April and July 2005 orders, the reference to Munchausenís syndrome does not indicate bias.

††††††††††† Mother argues that the district courtís handling of the parenting-time dispute ignored the childrenís special needs and health issues.† Mother cites the fact that the judge appointed his own personal physician as a medical expert.† The record does not support the claim that a specialist or pediatrician was required to understand the childrenís health issues and special needs, and nothing in the record indicates that the physician was biased.† To the contrary, the district courtís final parenting-time order shows that it found credible motherís claims regarding the childrenís special needs and health issues.

††††††††††† Mother also argues that the district courtís consideration of her extended family shows bias.† But father did state to the parenting-time evaluator that he previously had a good relationship with motherís parents.† The district court acknowledged in its final parenting-time order that the location of motherís extended family, as well as whether they desired a relationship with the children, was unknown to the court and, accordingly, it was unknown whether father would facilitate a relationship with motherís extended family.† The district court simply recognized that it would be beneficial for the children to have a relationship with their extended family and, due to motherís estrangement from her family, the only possibility of that occurring would be through father.† The district courtís order reflects a concern for the childrenís best interests, not a bias against mother.

††††††††††† As the district court found, while there have been rulings adverse to mother, there have also been rulings in her favor.† The record does not support motherís claim of judicial bias.

II.

††††††††††† In considering a motion to modify parenting time, the district court shall order modification if a change in parenting time ďwould serve the best interests of the child.Ē† Minn. Stat. ß 518.175, subd. 5 (2004). We review the district courtís decision on parenting-time issues under an abuse-of-discretion standard.† Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).† A district courtís factual findings on parenting time will be upheld unless they are clearly erroneous.† Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn. 1978).

††††††††††† Citing the 1996 order for protection, mother argues that the district courtís findings on parenting time are clearly erroneous.† The district court specifically addressed the 1996 order for protection in the June 7, 2005 order.† Citing the current parenting-time evaluation, mother argues that father minimizes the childrenís special needs and dietary restrictions.† The district court specifically addressed these concerns, finding that although father had minimized these issues in the past, he was willing to enforce the childrenís dietary restrictions and administer prescribed medications.† Mother cites the findings in the custody evaluation that during a home visit, father failed to appropriately address disciplinary issues when D.F. was bullying K.F.† The custody evaluator noted this problem but, nonetheless, recommended that father have four weeks of parenting time with the children, including overnight parenting time.† Consistent with the custody evaluation, the district court found, ď[Father] needs to learn to parent the children and has been provided with some information and assistance in the course of these proceedings.Ē

† ††††††††† Mother also alleges incidents of abuse committed against the children by father.† The district court considered motherís allegations and found they lacked credibility.† We defer to the district courtís credibility determinations.† Sefkow, 427 N.W.2d at 210.† It is not the role of an appellate court to reweigh the evidence and find its own facts.† Id. at 210.

††††††††††† Mother argues that the district court erred in finding that Florida child-protection authorities ďconducted an investigation and determined that no intervention was needed.Ē† The finding accurately states the result of the Florida investigation.†

††††††††††† The district courtís findings on parenting time that mother challenges are supported by evidence in the record and are not clearly erroneous.

††††††††††† Mother next argues that the district court erred in allowing overnight and extended parenting time.† Mother argues that father failed to meet his burden of proving that such a modification served the childrenís best interests.† See Griffin, 267 N.W.2d at 735 (stating that the party seeking modification bears the burden of establishing that such modification is in the childrenís best interests).† The district courtís orders show a careful and thorough consideration of all of the evidence before it.† The evidence supports the district courtís findings that father is willing to address the childrenís dietary restrictions and special needs and that it is in their best interests to have overnight and extended parenting time with him.† Mother argues that the provision permitting husband to travel with the children is a substantial modification that is unsupported by findings.† The provision simply allows father to take the children on a vacation if he desires during his parenting time and requires father to inform mother about the destination, place of lodging, and phone number.† Mother offers no explanation why this is improper.† We find no abuse of discretion in the district courtís determination of parenting time.

III.

††††††††††† Mother argues that the district court erred in denying her reimbursement of medical expenses incurred prior to August 2000.† The district court found that through approximately early 2000, motherís parents paid the childrenís medical expenses as a benefit of motherís employment in the parentsí business.† The dissolution judgment states, ďEach party shall be responsible for one-half (1/2) of the deductible, non-insured medical, dental, orthodontal, ocular, mental health and prescription drug expenses for the minor children.Ē†

††††††††††† Mother does not dispute that her parents paid the childrenís medical expenses as a benefit of her employment in their business.† Rather, she argues that grandparents are not financially responsible for their grandchildren.† But because the motherís parents were also her employers, the denial of reimbursement of medical expenses paid by motherís parents is consistent with the dissolution judgment.

††††††††††† Mother also appears to object to the district courtís determination of reimbursement for expenses incurred after early 2000.† But mother does not specify which, if any, of those expenses were denied.† In her brief, mother argues that the district court failed to address numerous health-insurance and medical, dental, and prescription expenses from 2003 to the present.† But mother does not identify the items that were not addressed.

††††††††††† Mother has failed to satisfy her burden of showing that the district court erred in determining reimbursement of medical expenses.† See Toughill v. Toughill, 609 N.W.2d 634, 638 (Minn. App. 2000) (stating that to obtain relief on appeal, the party seeking reversal must show both error and that the error was prejudicial).

IV.

††††††††††† The district court has broad discretion in deciding whether to modify child support.† Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).† A district court abuses its broad discretion if it reaches ďa clearly erroneous conclusion that is against logic and the facts on record.Ē† Id.

††††††††††† A child-support order may be modified if the moving party shows a substantial change in circumstances that makes the existing support award unreasonable and unfair.† Minn. Stat. ß 518.64, subd. 2(a) (2004); Putz, 645 N.W.2d at 348 (Minn. 2002).† A parentís responsibility for child support is generally based on net income and ability to pay.† Minn. Stat. ß 518.551, subd. 5 (2004); Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991).† But Minnesota law dictates the imputation of income for child-support purposes when unemployment or underemployment is voluntary.† Minn. Stat. ß 518.551, subd. 5b(d).† The court can consider whether an obligorís unemployment or underemployment is in bad faith toward his or her support obligations.† Putz, 645 N.W.2d at 351.††

††††††††††† Mother argues that the district court abused its discretion in declining to impute income to father.† The district court found:

††††††††††† [Fatherís] income is in flux due to his self-employment status.† However, as noted in the order of August 6, 2004, he has recently earned net income of approximately $1,000 per month.† It is likely that he can earn much more.† His child support is $508 per month which would indicate net income of $1,683 per month.† He is not currently underemployed in bad faith, thus the $1,000 net income figure is adopted at this time.†

 

(Emphasis in original.)† We conclude that the district court did not abuse its discretion in declining to impute income to father.† We note that the court denied fatherís motion to modify support.

††††††††††† Mother challenges the credibility of fatherís claims that he was unable to work due to injuries sustained in 2000 and 2002.† The district court analyzed fatherís injury claims in its August 6, 2004 order, and, as already stated, credibility is an issue for the district court to determine.† Mother argues that father submitted insufficient documentation regarding his income.† The evidence documenting fatherís financial status included income tax returns, purchase agreements, records relating to an accident in which he was injured, an itemization of income from and expenses for a rental property, and a detailed itemization of expense records for 2002 and 2003.† Mother has not shown that this documentation was insufficient.†

††††††††††† Mother argues that the district court erred in not ordering reimbursement of child-care expenses retroactive to 2000.† In July 2000, mother filed a motion requesting reimbursement of child-care costs.† In an order filed August 8, 2000, the district court did not address reimbursement of child-care costs.† Mother appealed that order but did not object to the district courtís failure to require father to reimburse her for child-care costs.† The district court properly awarded mother reimbursement of child-care costs retroactive to May 16, 2003, the date of the current motion.† See Minn. Stat. ß 518.64, subd. 2(d) (2004) (stating that except under specified circumstances, modification of support ďmay be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motionĒ).

††††††††††† Mother argues that the district court should have required father to contribute to the childrenís special diet expenses as a medical expense.† In a preliminary order, the district court found that the term ďmedical costsĒ was broad enough to include special diet expenses.† In its final order, the district court found that a reasonable monthly food budget for the children would be $1,026 and that mother estimated that a reasonable monthly budget would be $600 if they did not have a special diet.† The district court considered this as a regular expense rather than a medical expense.† Even though the term ďmedical costsĒ may be broad enough to include special diet expenses, it was not an abuse of discretion for the district court to decline to construe the term in that manner.

††††††††††† Mother argues that the district court failed to award her $697, the amount withheld by father for 1999 travel expenses, in child-support arrearages.† The district court awarded mother child support arrearages in the amount of $11,982.76.† It is not apparent whether the $697 was included in that amount.† Mother also argues that Hennepin County Support and Collections only charged fatherís support account $1,219.75 when it should have charged it $1,631.90.† It is not apparent whether the amount of arrearages included the additional amount.† Without a showing by mother that these calculations were erroneous, there is no basis for reversal.

††††††††††† Mother also raises issues relating to collection by Hennepin County Support and Collections of the current judgment.† These issues are premature since there has not yet been any failure by father to pay the judgment.

V.

††††††††††† Mother argues that the district court erred in failing to award her attorney fees for her motion to compel discovery because father repeatedly failed to produce discovery.† An award of attorney fees under Minn. Stat. ß 518.14, subd. 1 (2004), ďrests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.Ē† Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).† A court can award conduct-based attorney fees against a party who ďunreasonably contributes to the length or expense of the proceeding.Ē† Minn. Stat. ß 518.14, subd. 1.† The district court found that some of motherís discovery requests were overbroad and unduly burdensome.† We conclude that the district court did not abuse its broad discretion in declining to award mother attorney fees.

††††††††††† Affirmed.