This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Denise Marie Dittrich, petitioner,



Gregory Duane Dittrich,


Filed September 9, 1997


Toussaint, Chief Judge

Washington County District Court

File No. F0941431

Dianne Wright, McCullough, Smith & Wright, P.A., 905 Parkway Drive, St. Paul, MN 55106 (for respondent)

Jon Erik Kingstad, St. Croix Law Center, P.O. Box 318, 310 South St. Croix Trail, Lakeland, MN 55043 (for appellant)

Considered and decided by Toussaint, Chief Judge, Huspeni, Judge, Schultz,[*] Judge.


TOUSSAINT, Chief Judge

Appellant Gregory Dittrich challenges the consensual special magistrate's order regarding his child support payments, arguing that (1) the child support award was excessive and without support in the record, (2) the stipulation appointing the consensual special magistrate exceeded the district court's authority and was unconstitutional, and (3) the consensual special magistrate exceeded his authority by ordering discovery and awarding attorney fees. Respondent Denise Dittrich moves to strike portions of appellant's brief and appendix and requests attorney fees on appeal. Because the magistrate's appointment was proper, and because the magistrate did not abuse his discretion, or exceed his authority, we affirm. Respondent's motion to strike is granted in part and denied in part, and her request for attorney fees on appeal is denied.



Appellant argues that the child support order is invalid because the magistrate based it upon imputed earning capacity and did not consider other factors. Appellant urges this court to adopt in this case the "advisory" standard of review used by district courts in reviewing findings of family court referees. See Peterson v. Peterson, 308 Minn. 297, 304, 242 N.W.2d 88, 93 (1976) (concluding that findings and orders of family court referee are advisory and that district court judge must make independent decision). Here, the magistrate's decision was not advisory; the stipulation stated that "the decision of the magistrate shall be binding upon the parties, and appealable only to the Minnesota Court of Appeals." Further, the district court judge signed all the orders issued by the magistrate. We review the magistrate's order as we would an order by the district court.

The district court has broad discretion in determining whether to modify child support and will not be reversed absent abuse of discretion. Hennessy v. Stelton, 302 Minn. 550, 224 N.W.2d 926, 927 (1974). This court will not reverse a district court's determination of a party's income used to calculate child support if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987). A district court's findings of fact will not be reversed unless clearly erroneous. Minn. R. Civ. P. 52.01.

If the court finds that a parent is voluntarily unemployed or underemployed, child support shall be calculated based on a determination of imputed income.

Minn. Stat. § 518.551, subd. 5b(d) (1996). In imputing income, a court estimates the parent's estimated earning ability based on the parent's earnings history, education, and job skills, as well as the availability of jobs in the community for which the parent is qualified. Id.

The magistrate noted that appellant billed approximately six hours per week in his law practice, whereas approximately 30 billed hours per week is the average in his area of law. The magistrate then imputed income to appellant based on his prior earnings and his plans for pursuing a private law practice. The magistrate's finding that appellant was voluntarily underemployed is not clearly erroneous. The magistrate based the calculation of appellant's income on the factors listed in the statute and did not abuse its discretion in determining appellant's child support obligation.


Appellant argues that the stipulation and order appointing the consensual special magistrate is without statutory authority. The district court's order stated that "it is appropriate, pursuant to § 484.74, Subd. 2a of Minnesota Statutes, to refer the unresolved issues to a consensual special magistrate." Appellant notes that Minn. Stat. § 484.74 (1996) applies only to the second and fourth judicial districts, whereas, Minn. Stat. § 484.76 (1996) Minn. R. Gen. Pract. 114, exempt all family law proceedings and from alternative dispute resolution (ADR).[1] Although the mechanism for mandatory ADR proceedings established by rule 114 did not apply to family law, the rule does not prevent courts from ordering or encouraging ADR in the area of family law, nor are parties prevented from consenting to it. 3A David F. Herr & Roger S. Haydock, Minnesota Practice §§ 114.2, 114.13. Here, the parties agreed to the magistrate's appointment, read the court's order appointing him, and signed a stipulation that they agreed to the entry of the order. The court did not exceed its authority in appointing the consensual special magistrate.

Appellant further argues that section 484.76 is unconstitutional and void because it divests the district court of its jurisdiction. We disagree. Appellant contends that agreements to arbitrate are contrary to public policy and void. But the line of cases upon which appellant relies has been overruled. See Park Constr. Co. v. Independent Sch. Dist. No. 32, 209 Minn. 182, 186-87, 296 N.W. 475, 477-78 (1941) (overruling prior decisions that had declared general agreements to arbitrate void and contrary to public policy). Further, an agreement to arbitrate does not divest a district court of jurisdiction. See id. at 186, 296 N.W. at 477. (Concluding that arbitration merely removes controversy from litigation and is no more ouster of jurisdiction than is settlement or covenant not to sue).

Appellant alleges that the magistrate had no authority to order discovery or award attorney fees for failure to comply with the discovery order. In the stipulation and order appointing the magistrate, however, the parties agreed that the magistrate would address not only all motions pending at the time, but also all further motions made by either party. The order also gave the magistrate the authority to assess costs against either party for failure to comply with his orders. The magistrate did not exceed his authority.


Respondent argues that the portions of appellant's brief regarding the statutory authority for and constitutionality of the appointment of the consensual special magistrate and the authority of the consensual special magistrate to order discovery and attorney fees must be stricken because they were raised for the first time on appeal. Generally, if an issue is not presented to and considered by the district court, this court will not consider it on appeal. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The court may, however, consider, any issue as justice requires. Minn. R. Civ. App. P. 103.04.

Respondent contends that certain items included in appellant's appendix to his appellate brief must be stricken because they are not part of the appellate record. The record on appeal comprises "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any." Minn. R. Civ. App. P. 110.01. This court may not consider matters outside the record on appeal and must strike them from the record. Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987). The items to which respondent objects are not in the record and are therefore stricken.


Respondent requests attorney fees on appeal. This court may award attorney fees on appeal if a party acts in bad faith, asserts a claim that is frivolous and costly to the other party, acts solely to delay the proceedings or to harass the other party, or commits fraud on the court. Minn. Stat. § 549.21, subd. 2 (1996). We may also award attorney fees where they are necessary to enable a party to carry on a proceeding and the other party has the means to pay the fees or where a party has unreasonably contributed to the length or expense of the proceeding Minn. Stat. § 518.14, subd. 1 (1996). Here, respondent cites no authority for her request, nor does she explain why she is entitled to fees. This record does not support an award of attorney fees to respondent. See Emerick ex rel. Howley v. Sanchez, 547 N.W.2d 109, 113 (Minn. App. 1996) (concluding that where appellant neither cited authority nor explained fee request and respondent did not act speciously in pursuing appeal, attorney fee award was not warranted).


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

[ ]1 Rule 114 was amended in 1996 to include family law proceedings as of July 1, 1997.