This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-2054

In Re the Marriage of:

Jodell Marie Thul, petitioner,

Respondent,

vs.

Steven Mark Thul,

Appellant.

Filed March 25, 1997

Affirmed in part, vacated in part, and remanded.

Parker, Judge

Ramsey County District Court

File No. F3952695

Michael Ormond, Ormond Law Offices, 300 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for respondent)

John M. Jerabek, Noreen Schertler, Niemi & Barr, P.A., 510 Marquette Avenue, Suite 700, Minneapolis MN 55402-1107 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Parker, Judge, and Schumacher, Judge.

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

PARKER, Judge

This appeal is from a trial court order denying appellant Steven Thul's motion to vacate a dissolution judgment and decree and to amend the findings of fact and conclusions of law or, in the alternative, grant a new trial. Mr. Thul argues that the trial court erred by entering a default judgment awarding child support, reserving spousal maintenance, distributing the parties' property, and awarding attorney fees. We affirm in part, vacate in part, and remand.

D E C I S I O N

1. Spousal Maintenance and Child Support

A trial court's determination of a maintenance award will not be overturned unless an abuse of discretion can be shown. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The trial court has broad discretion to determine child support, and this court will not reverse unless that decision was clearly erroneous. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Mr. Thul argues that the default judgment and decree should be vacated because the trial court made an award of child support and reserved spousal maintenance in the absence of a prayer for such relief in Ms. Thul's dissolution petition. He contends that Ms. Thul would not be prejudiced by reopening the case. Mr. Thul claims that justice requires reopening the case because the trial court abused discretion in concluding that such awards were proper even though Ms. Thul gave him no notice of her intent to seek either spousal maintenance or child support.

Minn. Stat. § 518.10(i) (1994) provides in part:

The petition for dissolution of marriage or legal separation shall state and allege: * * * [a]ny temporary or permanent maintenance, child support, child custody, disposition of property, attorneys' fees, costs and disbursements applied for without setting forth the amounts.

Child support "relates to [the] non-bargainable interests of children." Aumock v. Aumock, 410 N.W.2d 420, 421 (Minn. App. 1987). "The non-custodial parent has an obligation to commit a certain amount of his or her income to the child." Id. Although spousal maintenance may be waived, "such [a] waiver is not permitted in the case of child support." Mulroy v. Mulroy, 354 N.W.2d 66, 69 (Minn. App. 1984). "The best interests of minor children are served by ensuring that they receive adequate support consistent with the financial abilities of their mothers and fathers to provide that support." Id.

At the hearing on the default judgment, the trial court concluded that Ms. Thul's testimony provided a basis for the award of spousal maintenance and child support. Mr. Thul then contested the court-ordered awards, and a motion hearing was held. The trial court concluded that he had "failed to meet his burden of showing that there had been a substantial change in his circumstances to modify the child support award." The trial court also concluded that because spousal maintenance was not specifically requested in the dissolution petition, the award was without support and, instead, reserved resolution of this issue for an evidentiary hearing.

We hold that an order awarding maintenance could not be made on these pleadings. We note that Minn. Stat. § 518. 10(i) appears to preclude an award on any issue not raised in the pleadings. However, we note that child support cannot be waived. See Mulroy, 354 N.W.2d at 69. Moreover, we agree in general that Mr. Thul is entitled to his day in court with regard to the matters not pleaded and conclude it is necessary to vacate the trial court's order insofar as it addresses child support and maintenance.

We observe that the trial court recognized the deficiencies in Ms. Thul's petition, but was cognizant that awards of child support and maintenance were needed. We further note that it would have been prudent to conserve scarce judicial resources and contain the legal expenses of the parties by requiring the petitioner below to amend and re-serve her pleadings, thereby perhaps avoiding the expense of appeal. That not having been done, it is necessary to remand this case to the trial court.

We therefore direct that the record be reopened so that the interrelated awards of child support and maintenance are both before the court and that the parties be allowed to amend their pleadings to include these issues. We further vacate the amount of the child support award as set, but acknowledge that the determination that some award of child support, as such, was proper. We also note that any order of child support on remand may be retroactively applied to the period covered by the original award.

2. Property Distribution

A trial court has broad discretion in dividing property and, absent an abuse of discretion, the decision must stand. Rutten, 347 N.W.2d at 50-51.

Mr. Thul argues that the trial court's distribution of the marital property was not fair or equitable. He contends that Ms. Thul did not provide the court with an accurate list of the parties' property. He also claims that the valuation of the homestead was inaccurate. Therefore, he contends, the property distribution is not supported by the evidence and should be vacated.

When dividing marital property, the court is required to make

a just and equitable division of the marital property of the parties without regard to marital misconduct, after making findings regarding the division of the property. The court shall base its findings on all relevant factors including the length of the marriage, any prior marriage of a party, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, needs * * * of each party.

Minn. Stat. § 518.58, subd. 1 (1994). However, the property division need not be mathematically equal to be just and equitable. Johns v. Johns, 354 N.W.2d 564, 566 (Minn. App. 1984).

In her petition for dissolution, Ms. Thul requested that the court "[a]ward a fair and equitable division of the real and personal property of the parties." In fashioning the judgment and decree, the trial court reviewed the financial circumstances of the parties and made a property distribution accordingly.

We cannot say that the property distribution ordered by the court was unfair or inequitable. Although Mr. Thul had ample opportunity at the motion hearing and in his brief to argue his claims regarding valuation of the homestead and other property, we are not directed to any evidence to support his assertions. Mr. Thul's mere disagreement with the property distribution, without more, is insufficient to warrant vacation of the trial court's order. We conclude, therefore, that the trial court's distribution of the parties' real and personal property does not constitute an abuse of discretion.

3. Attorney Fees

Mr. Thul argues that the trial court abused discretion by awarding attorney fees to Ms. Thul because neither a showing of bad faith nor findings were made by the court to support the award.

The court may award attorney fees if it finds

(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2) that the party from whom fees, costs and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs and disbursements are awarded does not have the means to pay them.

Minn. Stat. § 518.14, subd. 1 (1994).

Allowance of attorney fees [under Minn. Stat. § 518.14, subd. 1] rests almost entirely within the discretion of the trial court. Only rarely will a trial court's decision regarding attorney fees be overturned on appeal.

Duffey v. Duffey, 432 N.W.2d 473, 478 (Minn. App. 1988)(citations omitted).

The trial court awarded attorney fees to Ms. Thul as a result of Mr. Thul's motion to modify the child support award. The trial court found that although Ms. Thul did not provide any evidence to support the amount ($2,500) she claims to have incurred for attorney fees, she nonetheless did not have the means to pay her attorney fees, and Mr. Thul had sufficient income for both parties' fees. The trial court then awarded Ms. Thul reasonable attorney fees in the amount of $900.

On review of the relative income of the parties, we agree that Mr. Thul is more than able to pay Ms. Thul's attorney fees. We note that Mr. Thul's assertion that attorney fees are awarded only upon a showing of bad faith is in error. Minn. Stat. § 518.14 makes clear that attorney fees may be awarded based on other criteria, including need. We conclude, therefore, that the trial court's decision on the award of attorney fees does not constitute an abuse of discretion.

Affirmed in part, vacated in part, and remanded.