This opinion will be unpublished and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
In Re the Marriage of:
Mary J. Wagner, f/k/a Mary J. Bulau, petitioner,
Douglas D. Bulau,
Filed March 31, 1998
McLeod County District Court
File No. F08922256
Terrence E. Conkel, Jeanne M.V. Conkel, Gavin, Olson, Conkel & Savre, Ltd.,
1017 Hennepin Avenue, Glencoe, MN 55336 (for respondent)
Julie Wacker Hanjani, Palmer, Hanjani, Barkley, Barley & Emmer, 105 Second
Avenue Southwest, Hutchinson, MN 55350 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and
*Retired judge of the Minnesota Court of Appeals, serving by appointment
pursuant to Minn. Const. art. VI, § 10.
U N P U B L I S H E D O P I N I O N
In this appeal from an order increasing the support obligation of appellant
Douglas Bulau to the guideline level, Bulau claims the district court erred by:
(1) denying his motion for a new trial; (2) setting his support obligation
without applying the cross-support formula; and (3) awarding respondent Mary J.
Wagner attorney fees. We affirm.
D E C I S I O N
The district court did not abuse its discretion by denying Bulau's
motion for a new trial. See Huso v. Huso, 465
N.W.2d 719, 721 (Minn. App. 1991) (in post-decree motion to modify, there is no
"trial" and "new trial" motions are unauthorized).
Bulau contends he raised a claim for cross-support under Hortis
v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) in his motion for
amended findings. However, raising a new claim or theory in a motion for
amended findings is improper. See Allen v. Central Motors
Co., 204 Minn. 295, 299, 283 N.W. 490, 492 (1939) (issue raised "too
late" when first raised in motion for amended findings); see also
Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641,
651 (1974) (in considering motion for amended findings, trial court "may
neither go outside the record, nor consider new evidence").
Further, Bulau previously stipulated that the reaching of age 20 by one of his
children from a prior marriage would be a basis for alleging changed
circumstances for purposes of modifying support. Also, at the original hearing
on the motion to modify support, Bulau stated he was not seeking cross-support
under Hortis. Because one of Bulau's children of a prior
marriage had reached age 20, we conclude the district court did not abuse its
discretion by modifying his support obligation without reference to the
Hortis formula. See Minn. Stat. § 518.64,
subd. 2 (1996) (support may be modified on a showing of, among other things,
changed circumstances); Moylan v. Moylan, 384 N.W.2d 859, 864
(Minn. 1986) (district court has broad discretion in deciding whether to modify
support and will not be reversed absent a clearly erroneous conclusion that is
against logic and the facts on record); Compart v. Compart, 417
N.W.2d 658, 662 (Minn. App. 1988) (where support is below guideline amount,
degree of change in circumstances required to satisfy modification statute is
The order denying Bulau's post-hearing motion awarded Wagner attorney
fees because of the burden Bulau's post-hearing motion put on Wagner.
See Minn. Stat. § 518.14, subd. 1 (1996) (court "may" award
fees against a party unreasonably contributing to proceeding's length or
expense); Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App.
1992) (whether to award conduct-based attorney fees is discretionary with the
district court). Bulau claims the district court should not have awarded
Wagner attorney fees because he had a right to bring his motion for a new trial
under rule 59.01. As discussed above, we disagree. Further, although Bulau
had a right to move for amended findings, it was not appropriate for him to
argue for cross-support in a motion for amended findings after stating in the
original proceeding that he was not seeking cross-support. We thus conclude
the district court did not abuse its discretion in determining Bulau
contributed to the proceeding's length and expense. Finally, we reject Bulau's
argument regarding the district court's failure to determine his ability to pay
the attorney fees. An analysis of ability to pay is not required for a
conduct-based attorney fee award. See Dabrowski v.
Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (stating a fee award
under Minn. Stat. § 518.14 may be based on the conduct of a party
"regardless of the relative financial resources of the parties").