This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).




Jennifer Wright Whitten, petitioner,



John Palmer Whitten,


Filed December 23, 1997


Crippen, Judge

Hennepin County District Court

File No. DC184140

Lawrence D. Olson, Timothy D. Lees, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, St. Paul, MN 55113 (for appellant)

Susan M. Lach, Messerli & Kramer, 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Appellant Jennifer Whitten challenges the trial court's upward modification of her child support obligation and the denial of her motion to reopen the original divorce judgment. Both parties dispute the denial of requested awards for attorney fees. Respondent challenges the trial court's refusal to make the support increase retroactive to the date of his motion. We affirm.


When the parties were divorced in 1994, the judgment was determined according to their stipulation. Custody of their two children was placed with respondent and appellant was to pay $300 per month in child support for three years and $400 per month from June 1997 through May 1999, when the youngest child turned age 18.

In September 1996, respondent moved for an increase in child support, supported by evidence that appellant's 1994 net monthly income of $2,000 had nearly doubled. The trial court found that an increase was justified. Responding to appellant's contention that the 1994 stipulation should preclude a change, the court observed that the agreement was premised on the circumstances of the parties at that time. Applying the child support guidelines, appellant's monthly obligation was increased to $989.50, effective May 1997.


Modification of child support is within the trial court's discretion. Hennessy v. Stelton, 302 Minn. 550, 550, 224 N.W.2d 926, 927 (1974). Trial court findings will be upheld if they are not clearly erroneous. Minn. R. Civ. P. 52.01.

Basis for modification. On appeal, appellant argues initially that the trial court erred by altering the child support obligation solely because of appellant's increased earnings. Acknowledging that the governing statutes now provide a presumption that appellant's increased earnings make the earlier award unjust, she contends that she rebutted that presumption. See Minn. Stat. § 518.64, subd 2 (1996) (stating rebuttable presumption that prior award is unfair if a current guidelines calculation produces an award that differs by at least 20 percent and in an amount of at least $50); see also Rouland v. Thorson, 542 N.W.2d 681, 684 (Minn. App. 1996) (stating burden of non-moving party to rebut presumption with proof of cause for departure from the guidelines calculation).

Assessing the needs and resources of the parties and their youngest child, the trial court found that a current guideline support obligation was appropriate. Observing that respondent's gross income continues to be larger than appellant's, the trial court found that there was no longer a significant disparity between the income of the parties. Acknowledging appellant's claim that her current monthly expenses total $4,141 ($183 more than the net income attributed to her by the court), the court found that her expenses had not reasonably increased to that extent. Reflecting on the child's needs, the court found (a) that the two children had total needs of at least $2,526 per month in 1994 and (b) that a guidelines support obligation was justified in part by the standard of living the youngest child would have enjoyed had the parties not been divorced. These findings of the trial court are supported by evidence in the record and are not clearly erroneous. They permit the court's conclusion that there was not an adequate showing of cause for a departure from the guidelines calculation.

Stipulation. Although acknowledging that a stipulation lying behind an earlier support award is only one consideration in a modification proceeding, appellant repeats on appeal the assertion that a change in the award will upset the equity achieved by the parties when they stipulated for divorce in 1994. See Hoppenrath v. Cullen, 383 N.W.2d 394, 396 (Minn. App. 1986) (stating that child support relates to the "nonbargainable interests of the children"; that support awards are less subject to restraint than other divorce issues; but that the existence of a stipulation is "one factor considered on modification motions"). The trial court found that a stipulation premised on circumstances in 1994 was not a basis for overlooking a subsequent doubling of the obligor's income. The court did not clearly err in weighing the effects of the stipulation.

Appellant further contends that respondent should be equitably estopped from seeking modification because of expectations in 1994 that the support obligation would not be changed. No such expectations are shown in the record. Appellant cites a 1994 comment of counsel that the agreed support should be paid until the youngest child reaches 18, but the context of this remark relates solely to the desire for security that the obligation be paid. The parties agreed to forgo cost-of-living adjustments, but they did not address the prospect of a substantial change in the obligor's income.

Finally, appellant contends that the modification motion shows that respondent's 1994 stipulation was a fraud on the court, an agreement respondent never intended to honor. This contention takes no account for the doubling of appellant's income.

Reopening judgment. Appellant states that it "appears" that respondent failed to disclose assets at the time of the settlement, and thus, committed fraud on the court. We will not set aside a trial court's findings of fact regarding fraud on the court unless clearly erroneous. Sanborn v. Sanborn, 503 N.W.2d 499, 502 (Minn. App. 1993), review denied (Minn. Sept. 21, 1993). The trial court did not clearly err in rejecting appellant's allegations as being "vague and speculative."

Retroactive modification. Respondent contends that the increase in support payments should be retroactive to November 4, 1996, the date respondent filed the modification motion. Under Minn. Stat. § 518.64, subd. 2(c) modification "may" be retroactive. Thus, the trial court has broad discretion to determine whether a modified child support obligation should be retroactive. See Borcherding v. Borcherding, 566 N.W.2d 90, 93-94 (Minn. App. 1997) (affirming decision not to make modification retroactive); see also Minn. Stat. § 645.44, subd. 15 (1996) (recognizing that "may" is permissive). We will not disturb the trial court's decision to make the altered award effective at the time the motion was decided, only six months after modification was sought, four months after evidence of appellant's income increase was first presented, and two months after discovery was completed.

Attorney Fees. The trial court denied both parties attorney fees. Nothing in the record shows cause for such an award. Neither party demonstrated bad faith litigation nor a need for financial assistance. Appellant asserts that respondent showed bad faith in defeating discovery, but the record shows that discovery was completed and that this occurred without a court mandate on the subject.

Attorney Fees on Appeal. Respondent also seeks attorney fees under Minn. Stat. § 549.21, subd. 2 (1996) for sums incurred on this appeal. Having regard for the lack of cause for appellate review in the circumstances of the case, respondent is awarded attorney fees of $1000.