This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-96-430


In Re the Marriage of:

J.C.P., petitioner,
Respondent,

vs.

J.E.P.,
Appellant.


Filed August 13, 1996
Affirmed
Schumacher, Judge

Washington County District Court
File No. F6882381


Paul W. Rogosheske, Thuet, Pugh & Rogosheske, Ltd., 833 
Southview Boulevard, South St. Paul, MN 55075 (for Respondent)

Hugh W. McLeod III, 1130 Pleasant Circle, Arden Hills, MN 
55112 (for Appellant)


	Considered and decided by Short, Presiding Judge, 
Schumacher, Judge, and Holtan, Judge.*



U N P U B L I S H E D   O P I N I O N

SCHUMACHER, Judge
	Appellant J.E.P. (mother) claims that the district court erred 
in denying her request for a cost-of-living adjustment (COLA) in 
respondent J.C.P.'s (father) maintenance and support obligations 
and in refusing to compel father to pay attorney
 fees.  We affirm.  


FACTS

	The 1990 amended judgment dissolving the parties' 
marriage awarded mother custody, support, maintenance, a COLA 
for maintenance and support, and attorney fees.  In March 1995, 
the county sent father a notice that a COLA would increase 
maintenance and support effective in May 1995.  Father objected 
and the district court stayed the increase pending a hearing.  The 
county later withdrew its support for the COLA and mother moved 
for both a COLA and to compel father to pay allegedly unpaid 
attorney fees.  After a hearing, the district court allowed father to 
file an affidavit addressing attorney fees.  Father filed an affidavit 
concerning attorney fees and a copy of a 1992 affidavit by mother 
in which she stated that the fees had been paid.  The district court 
denied mother's motions, finding that father's income had 
substantially decreased between 1993 and 1994 and that mother 
had presented insufficient evidence on her claim of unpaid attorney 
fees.  Mother appeals.

D E C I S I O N

	1.	If an obligor shows an "insufficient cost of living or 
other increase in income," the district court "may" order that all or 
part of a COLA increase not take effect.  Minn. Stat.  518.641, 
subd. 3 (1994).  If the obligor fails to show an insufficient increase 
in income, a COLA "shall" take effect.  Id.  The district court 
found that father's income substantially decreased from 1993 to 
1994 and refused to impose a COLA.  
	Mother claims that the district court should have averaged 
father's income over several years to determine whether father's 
income had increased sufficiently to allow a COLA.  Mother cites 
no cases requiring income averaging in the COLA context, the 
cases mother does cite to support her argument are distinguishable, 
and father's income is currently less than it has been at any time 
since the dissolution.  On this record, we cannot say that it was an 
abuse of the district court's discretion to refuse to impose the 
COLA.  See McClenahan v. Warner, 461 N.W.2d 509, 511 
(Minn. App. 1990) (obligor has burden of showing why all or part 
of COLA should not be ordered and the district court's discretion is 
limited to granting or denying COLA).  
	2.	Mother claims that the district court's findings are 
inadequate to support the denial of a COLA.  See Mower County 
Human Servs. v. Hueman, 543 N.W.2d 682, 685 n.1 (Minn. App. 
1996) (findings required if district court waives COLA).  On this 
record, the district court's findings concerning the decrease in 
father's income are not clearly erroneous and support the denial of 
a COLA.  See Minn. R. Civ. P. 52.01 (findings of fact not set aside 
unless clearly erroneous); Hueman, 543 N.W.2d at 685 (district 
court abused its discretion in imposing support COLA where 
obligor's only source of income lacked COLA).  
	3.	The amended judgment requires father to pay 
mother's former attorneys $25,000 in installments.  Mother claims 
that because father did not prove that he made the final installment 
payment, it should be presumed that he did not make that payment. 
 The parties dispute the creation and impact of a "presumption" 
under Minn. R. Evid. 301.  "A presumption is an assumption of 
fact required by law once certain underlying or basic facts are 
established."  11 Peter N. Thompson, Minnesota Practice  301.01 
at 94 (1992) (footnote omitted).  Mother cites no authority 
requiring the assumption that father did not make his final 
payment.  Even if a presumption that father did not make the last 
payment could arise, a presumption 
dictates a decision only where there is an entire lack of 
competent evidence to the contrary and the very moment 
substantial countervailing evidence appears from any source 
it ceases to have any function and vanishes completely from 
the cause as if it had never existed.
Kath v. Kath, 238 Minn. 120, 124, 55 N.W.2d 691, 693-94 (1952). 
 Father entered both his affidavit indicating that he believed the 
payment to have been made and a copy of mother's 1992 affidavit 
in which she states that father had paid or assigned $25,000 to her 
former attorneys.  Any presumption that father did not make the 
final payment to mother's former attorneys ceased to have effect 
when father filed these documents.  We defer to the district court's 
resolution of the fact question raised by the parties' affidavits.  See 
Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) 
(appellate courts defer to district court resolution of fact issues 
presented by conflicting affidavits). 

	Affirmed.


     * Retired judge of the district court, serving as judge of the 
Minnesota Court of Appeals by appointment pursuant to Minn. 
Const. art. VI,  10.