This opinion will be unpublished and

may not be cited except as provided by

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




In Re Marriage of:

James G. Roban, petitioner,



Kathleen M. Roban,


Filed August 19, 1997

Affirmed in part and reversed in part

Peterson, Judge

Ramsey County District Court

File No. F2932649

James G. Roban, 261 Ruth Street, St. Paul, MN 55119 (Pro Se appellant)

Gary Alan Debele, Nancy Zalusky Berg, Tonja J. Rolfson, Walling & Berg, P.A., 121 South Eighth Street, Suite 1550, Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Amundson, Judge.



Appellant James G. Roban challenges a district court order affirming a referee's order, arguing that the referee erred by: (1) not removing herself from the case for bias, (2) awarding attorney fees to respondent Kathleen M. Roban and (3) failing to consider statutory criteria when determining child support. We affirm in part and reverse in part.


Appellant James G. Roban (husband) and respondent Kathleen M. Roban (wife) dissolved their 21-year marriage in 1994. Based on their stipulation, sole physical custody of their three minor children was placed with husband. The decree reserved the issue of child support and provided that wife would maintain medical and dental insurance for the children. Wife was awarded $116,636 in assets that included cash, stock, and individual retirement accounts. The value of assets awarded to husband is unclear. Both parties waived spousal maintenance.

On March 24, 1995, husband brought a motion to establish child support. The referee denied the motion on the ground that husband failed to show a substantial change in circumstances that would warrant a modification under Minn. Stat. § 518.64. Husband appealed this decision, arguing that the referee erred by using the standard for modifying child support instead of the standard for intially determining child support. This court agreed and remanded the issue for application of the correct standard. See Roban v. Roban, No. C0-95-1394 (Minn. App. Dec. 5, 1995).

On remand, the referee determined that wife's monthly net income is $929 and her reasonable monthly expenses are $1,282. The referee made no finding that explicitly determined husband's monthly income, but instead found that husband testified that his income is between $2000 and $3000 per month and that husband's affidavit states that monthly living expenses for himself and three children are $3,176.83. The referee denied husband's motion to award child support. The referee's decision was affirmed by the district court.


1. Bias

Husband argues that the referee erred by not removing herself from the case for bias and prejudice. Husband claims that the referee was biased against him because the referee (1) refused to consider case law he presented, (2) awarded wife attorney fees, (3) granted wife's oral motion for an evidentiary hearing, even though wife did not request a hearing when the referee wrote to the parties to ask if they wanted an evidentiary hearing, and (4) found facts contrary to the record.

A judge or judicial officer who has presided at a motion or other proceeding may not be removed except upon "an affirmative showing of prejudice on the part of the judge or judicial officer." Minn. R. Civ. P. 63.03. Absent an abuse of discretion, this court will affirm the district court's ruling on a motion to remove. Uselman v. Uselman, 464 N.W.2d 130,139 (Minn. 1990).

Husband failed to make an affirmative showing of prejudice on the part of the referee. The acts of the referee that husband cites as evidence of prejudice simply indicate husband's dissatisfaction with the outcome of the case. Granting wife's motion for an evidentiary hearing is the only act cited that was not an integral part of the referee's decision in the case. Granting this motion is not, by itself, evidence of prejudice.

2. Attorney Fees

Husband argues that the referee erred by awarding wife $750 in attorney fees. We agree. An award of attorney fees is within the discretion of the referee and will not be disturbed on appeal absent an abuse of discretion. Solon v.Solon, 255 N.W.2d 395, 397 (Minn. 1977). Attorney fees shall be awarded provided the court finds that the fees are necessary for the good faith assertion of the parties' rights in the proceeding, that the party from whom the fees are awarded has the means to pay them, and that the party to whom fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996).

The findings state that wife does not have the means to pay her attorney fees, but they do not indicate that husband has the means to pay wife's attorney fees. The findings do not include specific amounts for husband's income and expenses. The findings state that there was no testimony that (1) husband was forced to invade his marital assets in order to support the children, (2) the children's standard of living has deteriorated since the dissolution, or (3) either party has significantly increased debts. These findings indicate that husband has been able to make ends meet, but they do not indicate that husband has additional means available to pay wife's attorney fees. We, therefore, reverse the attorney fees award.

3. Child Support

Husband argues that in denying him child support, the referee erred by refusing to consider the income, property, and resources of wife along with the needs of the children.

The district court has broad discretion in establishing child support. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court will not disturb the district court's support determination if it has a reasonable and acceptable basis in fact. Bennyhoff v. Bennyhoff, 406 N.W.2d 92, 93 (Minn. App. 1987). When establishing a child support obligation, the district court must make specific findings of fact to support its decision. Minn. Stat. § 518.551, subd. 5(i) (1996). Without specific findings of fact, the court's judgment is without foundation. Moylan v. Moylan, 384 N.W.2d 859, 863 (Minn. 1986).

The child support guidelines "are a rebuttable presumption and shall be used in all cases when establishing or modifying child support." Minn. Stat. § 518.551, subd. 5(i).

If the court deviates from the guidelines, the court shall make written findings giving the amount of support calculated under the guidelines, the reasons for the deviation, and shall specifically address the criteria in paragraph (c) and how the deviation serves the best interest of the child.

Id. The applicable criteria in Minn. Stat. § 518.551, subd. 5(c), are:

(1) all earnings, income, and resources of

the parents, including real and personal property, * * *

(2) the financial needs and resources, physical and emotional condition, and educational needs of the child or children to be supported;

(3) the standards of living the child would have enjoyed had the marriage not been dissolved, but recognizing that the parents now have separate households; [and]

(4) which parent receives the income taxation dependency exemption and what financial benefit the parent receives from it.

The referee's findings of fact state the amount of support calculated under the guidelines and specifically address each of the applicable criteria from Minn. Stat. § 518.551, subd. 5(c). The findings explain the reason for the deviation and how the deviation serves the best interests of the children, as follows:

If [wife] were required to pay child support as requested by [husband], she would be forced to move to a less expensive apartment in a less safe neighborhood interfering with [wife's] personal safety and the children's when they visited. As it is when the children do stay over night with [wife] they must sleep on the sofa and the foam rubber [wife] formerly used. A deterioration of [wife's] financial situation would not enable [wife] to maintain a visitation relationship with the children that would clearly be in the children's best interest.

Husband argues that wife can use assets awarded to her in the dissolution to pay child support. But the findings state:

No testimony indicated that [husband] was forced to invade his award of marital assets in order to support the children, nor should that be ordered as to [wife] who has less income and resources than [husband].

The findings address all of the applicable statutory criteria and provide a reasonable and acceptable basis in fact for the child support determination. The referee concluded that the children's reasonable expenses are being paid using the total current income of both parties and that neither party should be required to use marital assets to pay the children's expenses.

Therefore, since the referee's conclusion not to award child support was reasonable and based upon specific findings of fact, we conclude that the referee did not abuse her broad discretion.

4. Appellate Attorney Fees

Wife seeks $3000 attorney fees on appeal. Because wife has not demonstrated an inability to pay attorney fees and because the issues raised on appeal were not frivolous or asserted in bad faith, we decline to award fees. See Minn. Stat. § 518.14, subd. 1 (1996); see also Ma v. Ma, 483 N.W.2d 732, 736 (Minn. App. 1992) (recognizing that attorney fees may be awarded on appeal under Minn. Stat. § 549.21, where the appeal was frivolous, asserted in bad faith, or costly to the other party).

Affirmed in part and reversed in part.