may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Suzanne S. Blackburn, petitioner,
Paul S. Blackburn,
Affirmed as modified; motion for attorney fees denied
File No. DC146346
John J. Todd, Brenner Law Firm, Ltd., BLN Office Park, Suite 170, 2001 Killebrew Drive, Minneapolis, MN 55425-1822 (for appellant)
Susan C. Rhode, Moss & Barnett, P.A., 4800 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-4129 (for respondent)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
This dispute arises out of a 1988 stipulated dissolution judgment, in which Paul S. Blackburn agreed to pay child support, spousal maintenance, and part of his minor children's medical and educational expenses. The original judgment was subsequently amended by stipulation to relieve Blackburn of his current spousal maintenance obligation. In 1997, Blackburn brought a postdecree motion requesting a reduction in his child support payments, and relief from his obligation to pay part of his minor children's medical and education expenses, spousal maintenance, and all past due child support and maintenance under the judgment. On consolidated appeal from an order denying all relief and a judgment awarding Blackburn's former spouse $29,630.44 in arrearages, Blackburn argues the trial court erred by: (1) denying his motions; and (2) failing to consider the fact that he was not represented by counsel at either the time of entry or modification of the judgment. Blackburn's former spouse argues the trial court erred by denying her arrearages for outstanding medical and education support costs, and requests attorney fees on appeal. We affirm as modified, and deny attorney fees.
D E C I S I O N
Trial courts enjoy broad discretion in matters of child support, spousal maintenance, and forgiveness of arrearages, and we will uphold a trial court's determination of those issues absent an abuse of discretion. See Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982) (spousal maintenance); Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (child support); Huckbody v. Freeburg, 388 N.W.2d 385, 389 (Minn. App. 1986) (forgiveness of arrearages). We will not set aside a trial court's factual findings unless clearly erroneous. Minn. R. Civ. P. 52.01; In re Estate of Serbus v. Serbus, 324 N.W.2d 381, 384-85 (Minn. 1982).
Blackburn argues the trial court erred by refusing to reduce his child support payments and relieve him of his obligation to pay part of his minor children's medical and educational expenses, despite his decreased earnings. We disagree. In the original judgment, Blackburn stipulated to the amounts he would be obligated to pay for child support, and medical and educational expenses. However, after the parties divorced, Blackburn: (1) sold his company; (2) made a number of career moves and failed to obtain any position that approached his predissolution income; (3) involved himself in a series of unsuccessful business ventures in which he invested all his assets; (4) greatly reduced support payments for his minor children; and (5) failed to submit any evidence showing an attempt to conform to his obligations under the original judgment and decree. Given these facts, the trial court did not abuse its discretion by concluding Blackburn failed to present sufficient evidence warranting modification of his child support, and health and education payments. See Garcia v. Garcia, 415 N.W.2d 702, 705 (Minn. App. 1987) (concluding obligor has burden of proving he made good-faith effort to conform to order); cf. Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977) (concluding courts vested with authority to alter or amend alimony provision under Minn. Stat. § 518.64, but should be "even more reluctant" to alter terms of decree when amount fixed by stipulation).
Blackburn also argues the trial court erred by refusing to strike the spousal maintenance provision of the judgment. The record shows: (1) in 1992, the parties amended, by stipulation, the original judgment, relieving Blackburn of his obligation to pay spousal maintenance, but reserved the right to seek maintenance in the future; (2) the parties agree the provision reserving the right to spousal maintenance should be vacated; and (3) Blackburn's former spouse is gainfully employed and has no need for spousal maintenance. Under these circumstances, the trial court abused its discretion by refusing to strike the spousal maintenance provision of the judgment. Cf. Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989) (concluding parties may stipulate to waive all maintenance at time of initial decree and courts are without authority to award in future); see also Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (concluding maintenance award depends on showing of need). Therefore, we modify the trial court's judgment by striking the spousal maintenance provision from the judgment.
Blackburn further argues he is entitled to a reduction of maintenance and support from and after the service of his notice of motion. See Minn. Stat. § 518.64, subd. 2(c) (1996) (permitting retroactive modification for period during which petitioning party has pending motion); see also Christenson v. Christenson, 490 N.W.2d 447, 449 (Minn. App. 1992) (concluding forgiveness of arrearages constitutes retroactive modification), review granted (Minn. Jan. 15, 1993), appeal dismissed (Minn. Feb. 16.1993). However, Blackburn moved for relief from all past due support and maintenance. See Minn. Stat. § 518.64, subd. 2(c) (providing retroactive modification may be applied to an earlier period only if party seeking modification was precluded from serving motion by reason of significant physical or mental disability, or fraud committed by the opposing party). Because Blackburn presents a new theory under Minn. Stat. § 518.64, this issue is not properly before us. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (concluding party may not obtain review by raising same general issue litigated below but under different theory); see, e.g., Pomush v. McGroarty, 285 N.W.2d 91, 93 (Minn. 1979) (concluding party could not raise new negligence theory on appeal); Krogstad v. Krogstad, 388 N.W.2d 376, 382 (Minn. App. 1986) (concluding because appellant did not raise issue before trial court, appellate court could not review on appeal).
Finally, Blackburn argues the trial court erred by failing to consider the fact that counsel did not represent him at the time of the entry or modification of the judgment. However, Blackburn's failure to obtain counsel in the 1988 and 1992 proceedings is irrelevant in deciding his motions brought pursuant to Minn. Stat. § 518.64. See Minn. Stat. § 518.64 (1996) (enumerating factors that must be considered when deciding motions under statute). Moreover, the record reveals Blackburn specifically waived, in writing, his right to counsel, and the trial court considered the appropriate factors in addressing Blackburn's motions. Under these circumstances, the trial court's failure to consider Blackburn's lack of counsel is not an abuse of discretion. Cf. Moylan, 384 N.W.2d at 865 (concluding record inadequate if it fails to reveal trial court actually considered appropriate factors); Erlandson, 318 N.W.2d at 38 (concluding trial court's discretion must be examined in light of controlling statutory guidelines, which contain detailed enumeration of factors to be considered).
Blackburn's former spouse also requests attorney fees on appeal, pursuant to Minn. Stat. § 518.14. We decline to award attorney fees because Blackburn has not prolonged this litigation or brought his appeal in bad faith, and his former spouse has the means to pay her fees. See Minn. Stat. § 518.14, subd. 1 (1996) (providing attorney fees may be awarded if party (1) unreasonably contributed to length and expense of proceeding, or (2) lacks financial ability to protect his or her legitimate interests and other party has means to defray needy party's legal costs).
Affirmed as modified; motion for attorney fees denied.