Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Heidi Stephanie Eisenschenck,
n/k/a Heidi Stephanie Weeks,
Brandon Joe Sanford,
Filed November 25, 1997
Hennepin County District Court
File No. PA29507
Craig E. Cascarano, 333 S. Seventh St., Suite 2890, Minneapolis, MN 55402 (for appellant)
Heidi Stephanie Weeks, 1191 107th Ave. N.E., Blaine, MN 55434 (pro se respondent)
Considered and decided by Huspeni, Presiding Judge, Klaphake, Judge, and Harten, Judge.
Appellant challenges an order increasing his child support obligation and requiring him to contribute to respondent's attorney fees. Because we see no abuse of discretion in either determination, we affirm.
On November 25, 1996, appellant and his attorney received respondent's first set of interrogatories and requests for production of documents with a cover letter stating that a hearing was set for January 14 for possible modification of appellant's child support order. Three weeks later appellant's attorney replied by letter, stating that because appellant had not been served with a motion, he was not obliged to respond to discovery. On the same day that appellant's attorney wrote the letter, respondent served and filed a notice of motion and motion. Because appellant did not answer the interrogatories or produce the requested documents, respondent sought and obtained appellant's bank records by subpoena. The bank statements showed deposits of $61,311 during 1996.
Four days before the hearing, appellant's attorney moved for a continuance because of a schedule conflict. This motion was denied. At the hearing, appellant did not produce the requested financial documents; on advice of counsel, he also refused to answer questions pertaining to his financial situation or his income. The record was left open so appellant could respond to the bank statement evidence, but he did not do so.
The administrative law judge (ALJ) found that appellant had monthly income of about $5,000 and set child support at the guideline amount, $1,250. The ALJ also awarded respondent $5,000 in attorney fees.
Modification of child support will not be reversed absent an abuse of discretion. Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974). Parties to a child support modification proceeding
shall timely serve and file documentation of income. * * * Documentation of earnings and income also includes, but is not limited to, pay stubs for the most recent three months, employer statements, or statement of receipts and expenses if self-employed. Documentation of earnings and income also includes copies of each parent's most recent federal tax returns, including W-2 forms, 1099 forms, reemployment insurance statements, workers' compensation statements, and all other documents evidencing income as received that provide verification of income over a longer period.
Minn. Stat. § 518.551, subd. 5b (1996). Appellant is correct in stating that the bank statements provide the only support for the increase in child support; however, appellant neither produced financial documents before the hearing, testified about his financial situation during the hearing, nor provided any rebuttal evidence after the hearing. Appellant cannot refuse to provide the evidence required by statute, then use "insufficient evidence" as a basis for challenging the modification of his child support.
Appellant claims the ALJ erred in finding that over $60,000 had gone through appellant's bank account in 1996, but failing to find that the account held only $3,200 in December 1996. The ALJ also found, however, that although appellant asserted that someone else might have withdrawn funds from the account, he produced no evidence to support the assertion, and he never indicated that the funds in the bank account were not his. Absent any other evidence, there was no abuse of discretion in setting appellant's child support obligation at the presumptively appropriate guideline amount for one child of an obligor with an income of $60,000.
2. Attorney Fees
An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (1996), will not be upset absent an abuse of discretion. See Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). Attorney fees may be awarded if the award is necessary for the good-faith assertion of a party's rights, if the party from whom payment is sought has the means to pay the fees, and if the party seeking fees does not have the means to pay them. Minn. Stat. § 518.14, subd. 1. The ALJ found that respondent's attorney fees were incurred for the good faith assertion of her rights, that she does not have the ability to pay the entire amount of the fees, and that appellant has the ability to contribute to the payment of her fees, and ordered appellant to pay $5,000 of the $8,485.52 attorney fees respondent had incurred. These findings are supported by the evidence; the order is not an abuse of discretion.
Attorney fees may be awarded in the court's discretion "against a party who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. § 518.14, subd. 1. The ALJ found that appellant had been served with interrogatories and requests for production of documents relative to his employment, income, and financial circumstances; that appellant had failed to respond to the interrogatories or the request; and that respondent incurred additional attorney fees because she was obliged to subpoena appellant's bank records and to proceed with a lengthy hearing.
Appellant does not challenge these findings, but argues that they do not support an award of attorney fees because appellant was within his rights in not responding to discovery until 30 days after being served with the notice of motion, which was also four days after the hearing, and because appellant's motion for a continuance was denied. Even assuming the validity of appellant's position that he need not have responded until 30 days after service of the motion, the attorney fees award was not an abuse of discretion. The ALJ left the record open for a week after the hearing; i.e., three days beyond the 30-day limit imposed by the service of the motion. Nonetheless, appellant did not respond to the discovery requests. Appellant's motion for a continuance did not mention a need for more time to comply with discovery; it referred only to a schedule conflict. Neither circumstance provides a basis for overturning the award of attorney fees.
We see no abuse of discretion in either the modification of child support or the award of attorney fees.
 See Minn. R. Civ. P. 33.01(b) (providing that a party upon whom interrogatories have been served shall serve answers or objections within 30 days); Minn. R. Civ. P. 34.02 (providing that a party upon whom a request for documents is served shall serve a written response within 30 days).