This opinion will be unpublished and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

C9-96-2571

In Re the Marriage of:

Michael G. Reed, petitioner,

Respondent,

vs.

Ruth A. Reed n/k/a Ruth A. Reed-Allman,

Appellant.

Filed August 26, 1997

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

Kanabec County District Court

File No. F496330

Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for Respondent)

Mark W. Benjamin, Parker, Satrom, O'Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN 55008 (for Appellant)

Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

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

KALITOWSKI, Judge

Appellant Ruth Reed-Allman challenges: (1) the district court's denial of her motion for amended findings or a new trial in her action to enforce the divorce judgment and decree; and (2) the district court's denial of her motion for attorney fees. We affirm in part, reverse in part, and remand.

D E C I S I O N

I.

Ruth Reed-Allman appeals the denial of her motion for amended findings of fact and conclusions of law, or, in the alternative, a new trial. She argues the district court abused its discretion in determining she was not entitled to reimbursement for: (1) debts she paid as a result of Michael Reed's bankruptcy; (2) delinquent state and federal taxes she paid; and (3) one-half of the expenses she paid for the children.

On appeal from a denial of a motion for a new trial, the inquiry of the appellate court is whether "the refusal of it involved the violation of a clear legal right or a manifest abuse of judicial discretion." Tovsland v. Tovsland, 358 N.W.2d 700, 702 (Minn. App. 1984) (citation omitted). "There must be a clearly erroneous conclusion that is against logic and the facts on record before the reviewing court will find that the trial court abused its discretion." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).

a. Debts

A party in a divorce decree may discharge some of his or her debts to the other party if bankruptcy is filed. Coakley v. Coakley, 400 N.W.2d 436, 440 (Minn. App. 1987), review denied (Minn. Apr. 23, 1987). A party, however, may not discharge child support or spousal maintenance, nor payments required to be made to third-party creditors that are "in the nature of" support or maintenance. Id.

The debts at issue consist of payments made by Ruth after Michael filed for bankruptcy. Ruth claims that because she paid approximately $7,400 in debts for which Michael, in the marital termination agreement, agreed to hold her harmless, she is entitled to reimbursement. We disagree.

Michael legally discharged the debts when he filed for bankruptcy. Once the debts were discharged, unless they are in the nature of support or maintenance, he is not required to reimburse Ruth for them. See id. (stating that a waiver of the right to discharge debts is enforceable only if in the nature of an obligation for maintenance or support). The district court did not specifically address Ruth's argument, but instead treated her motion as an attempt to re-open the marital termination agreement. Nevertheless, our review of the record leads us to conclude that the payments Ruth made on the bank loan, the credit cards, and the automobile were not necessary for her maintenance or support of the children. Therefore, because the debts were legally discharged by Michael, the district court did not abuse its discretion in determining she is not entitled to reimbursement under the marital termination agreement.

b. Delinquent taxes

In the marital termination agreement Michael agreed to hold Ruth harmless for approximately $1,000 of delinquent state and federal taxes. Ruth alleges that after Michael filed for bankruptcy, a total of approximately $4,000 in delinquent taxes was collected from her for the years 1991 and 1992 and that, pursuant to the parties' agreement, she is entitled to reimbursement from Michael.

A tax, owed to either the federal or state government, is not dischargeable in bankruptcy. 11 U.S.C.A. § 523(a)(1) (West Supp. 1987). Therefore, the delinquent taxes that Michael owed were not discharged when he filed for bankruptcy. The district court did not address Ruth's argument that because the tax obligation was not discharged, under the marital termination agreement Michael must reimburse Ruth. We therefore reverse and remand this issue for a determination by the district court as to Michael's obligation for delinquent taxes pursuant to the marital termination agreement.

c. Children's expenses

Ruth also claims the district court abused its discretion in denying her request for reimbursement for the children's uncompensated medical expenses, including orthodontia expenses. She contends the marital termination agreement requires that Michael pay half of these expenses.

The district court did not specifically address Ruth's request for medical expenses and denied her request for orthodontia expenses, concluding that the marital termination agreement "does not include language regarding dental or orthodontic care." We conclude the district court erred in determining Michael is not required to contribute to the orthodontia expenses of the children. See Minn. Stat. § 518.171, subd. 1(c) (1996) (obligor liable for portion of medical and dental expenses not covered by insurance including necessary orthodontia).

On appeal, Michael contends that Ruth failed to submit the claimed medical and orthodontia expenses to Michael's insurance company. We are unable to determine the amount of uncompensated medical and dental expenses from this record. Therefore, we remand to the district court to determine whether there are medical and dental expenses for the children not covered by insurance.

Ruth further claims the district court abused its discretion in: (1) denying her request for reimbursement for the cost of the children's musical instruments; and (2) ordering Michael to pay one-fourth rather than one-half of the children's extracurricular activity costs for the summers of 1993, 1994, and 1995. We conclude the evidence supports the district court's determination that Ruth is not entitled to reimbursement for the expenses not mentioned in the marital termination agreement (children's flute and saxophone). With regard to the expenses for extracurricular activities, we are unable to determine from this record if the district court erred in calculating the amount of reimbursement owed by Michael. Therefore, we remand this issue for proper findings and a determination by the district court.

II.

The district court has broad discretion regarding attorney fees and its decision will not be reversed absent a clear abuse of its discretion. Kahn v. Tronnier, 547 N.W.2d 425, 431 (Minn. App. 1996), review denied (Minn. July 10, 1996).

Ruth appeals the district court's denial of her motion for attorney fees. Attorney fees may be awarded when they are necessary to carry on or contest a proceeding. Minn. Stat. § 518.14, subd. 1 (1996). However, the court must find that the party requesting the fees does not have the means to pay them and the party from whom they are requested does have the means to pay them. Id. On this record we cannot conclude the district court abused its discretion in denying Ruth's request for attorney fees under Minn. Stat. § 518.14.

Additionally, Ruth and Michael both argue that, under Minn. Stat. § 549.21, subd. 2 (1996), their respective attorney fees should be paid by the other party. Ruth requests trial court attorney fees and Michael requests appellate attorney fees. Section 549.21 allows for awarding fees where there is a finding of bad faith, frivolous claims, purposeful delay, or fraud. We conclude that because the record does not support such a finding, the district court did not abuse its discretion in denying Ruth's request for attorney fees under Minn. Stat. § 549.21, and Michael is not entitled to appellate attorney fees.

Affirmed in part, reversed in part, and remanded.