may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re: Paternity of Minor Child B. J. L.
David Alan Lingbeck,
Gloria Ruth Block,
Filed December 31, 1996
Clay County District Court
File No. FX9550308
Bonnie J. Askew, Post Office Box 227, Fargo, ND 58107 (for Respondent)
Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Foley, Judge.[*]
Appellant David Alan Lingbeck challenges the trial court's (1) denial of his motion for a reduction of child support and (2) decision that he should pay the costs of any fees assessed by the Clay County Family Services Center (the center) for facilitating custody exchanges of Lingbeck's and respondent Gloria Ruth Block's minor child, B.J.L. Block claims that Lingbeck's appeal is frivolous and was initiated in bad faith and that she should be awarded attorney fees on appeal. We affirm.
Lingbeck then moved the court to (1) reduce his child support obligation and (2) find Block in contempt of court for violating the visitation terms. At the hearing, Lingbeck testified that Block had interfered with the court-ordered visitation schedule. Block responded that she attempted to change the exchange location to the Moorhead Police Department because Lingbeck had harassed her and cursed and screamed at her and she was frightened of him. The trial court found Lingbeck's credibility to be "lacking substantially," denied his motion, and changed the exchange location to the center. The court ordered Lingbeck to pay any fees assessed by the center. Lingbeck appeals.
Lingbeck alleged that his income for 1995 decreased substantially from that which the trial court had estimated he would earn in 1995. Lingbeck admits that he did not comply with Minn. Stat. § 518.551, subd. 5b(a) (1996) by serving and filing documentation of earnings and income "at least ten days prior to the prehearing conference." He contends, however, that he offered his 1995 tax returns at trial and testified about the tax returns. Thus, he claims the trial court abused its discretion by failing to decrease his child support obligation based on the evidence of decreased earnings in his 1995 tax returns because once the trial court allowed him to testify about his tax returns the court was compelled to treat the tax returns as though they had been timely filed. Lingbeck relies upon Minn. R. Civ. P. 15.02 and Nicholls v. Nicholls, No. C8-93-2532 (Minn. App. June 28, 1994), to support this assertion.
We conclude that the trial court did not abuse its discretion by refusing to consider the issue of Lingbeck's tax returns properly raised according to Minn. R. Civ. P. 15.02 or Nicholls. Rule 15.02 provides that issues not properly raised in the pleadings shall be treated as if they were properly raised in the pleadings when they are "tried by express or implied consent of the parties." Minn. R. Civ. P. 15.02. Consent to litigate is implied when a party fails to object to inadmissible evidence. Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983). Block's attorney objected to the introduction of the tax returns and thus Block neither expressly nor impliedly consented to trial of the issue based upon Lingbeck's tax returns.
We note that Nicholls is an unpublished case. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800-01 (Minn. App. 1993) (unpublished opinions are generally not precedential). Even if we do consider Lingbeck's argument about Nicholls, we conclude that Nicholls is distinguishable. In Nicholls the trial court received the untimely filed document into evidence. In this case, the tax returns were never received into evidence. The court did not abuse its discretion by refusing to modify child support.
Lingbeck additionally alleges the trial court should have exercised its discretion to reduce the obligation regardless of Lingbeck's noncompliance with Minn. Stat. § 518.551, subd. 5b(a). Because, as Lingbeck admits, the decision to modify is discretionary, the district court did not abuse its discretion by declining to exercise that discretion in favor of Lingbeck.
2. Questions relating to visitation that do not decide the parties' rights to visitation are generally left to the broad discretion of the trial courts. Courey v. Courey, 524 N.W.2d 469, 471 (Minn. App. 1994). This court reviews these matters to determine "whether the trial court abused its discretion by making findings unsupported by the evidence or by improperly applying the law." Id. at 472.
Lingbeck contends that the trial court abused its discretion by ordering him to pay the costs assessed by the center without making findings detailing each party's ability to pay. Lingbeck interprets the order to pay the center fees as effectuating an upward deviation in child support. Child support is an award for the "care, support and education" of a child. Minn. Stat. § 518.54, subd. 4 (1996). The fees assessed by the center are not additional child support fees because they do not provide for any of these three ends. Neither does the fees' imposition merit an additional analysis of Lingbeck's and Block's income because the trial court had information regarding the parties' income. Moreover, Minnesota law provides:
The court shall modify an order granting or denying visitation rights whenever modification would serve the best interests of the child.
Minn. Stat. § 518.175, subd. 5 (1996). The court found that modification would serve B.J.L.'s best interests stating:
Visitation orders must be modified whenever modification will serve the best interests of the child. * * * This Court is authorized to require visitation transfers to take place at the local social services agency.
The trial court did not abuse its discretion.
3. Attorney fees may be awarded in custody cases where the appeal was frivolous or in bad faith. See Minn. Stat. § 549.21, subd. 2 (1996); Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989); Minn. R. Civ. P. 11. Block alleges that Lingbeck's commencement of this appeal was frivolous or in bad faith. We disagree and decline to award attorney fees on appeal.
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.