This opinion will be unpublished and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:

Catherine A. Tonia, n/k/a Catherine A. Hall, petitioner,



Dennis L. Tonia,


Filed June 16, 1998

Affirmed in part, reversed in part, and remanded

Schumacher, Judge

Anoka County District Court

File No. FX885607

Jennifer R. Wellner, Jo Lynn Isaacson, Wellner & Isaacson, PLLP, Glen Oaks Center, 2E South Pine Drive, Circle Pines, MN 55014 (for respondent)

Vicki Miller Luoma, 303 Concorde Place, Burnsville, MN 55337 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.



Appellant Dennis L. Tonia (father) contends the trial court abused its discretion when it included his tax refund and his lump-sum personal injury settlement in his income for the purpose of calculating child support; modified his monthly expenses and accepted the monthly expenses of respondent Catherine A. Tonia, n/k/a Catherine A. Hall (mother); denied father's discovery request; failed to award father attorney fees; and required him to pay a percentage of the children's medical and dental insurance and expenses. We affirm in part, reverse in part, and remand.


The parties' marriage was dissolved by judgment and decree in October 1989. Pursuant to the decree, mother was awarded custody of the three minor children and father was required to pay child support of $507.14 per month.

In August 1992, father was injured in a motor vehicle accident. His employer refused to allow him to return to work with the restrictions that he had as a result of the accident. Consequently, father brought an action against his employer under the Federal Employees Liability Act. He also brought a personal injury action against the driver of the automobile.

Father settled his claims against his employer and the driver of the other vehicle on August 28, 1996. Father received a total settlement of $243,227.99, of which he received $110,000 cash, repayment of a $16,711.43 bank loan, $11,772.01 payment to his insurance company, and a disability annuity of $1,262 net per month. The annuity allowed father to earn only $400 in additional gross earnings per month without jeopardizing his annuity payment.

After father's accident, the court reduced his child support obligation to $398 per month. On May 1, 1996, his support obligation increased to $421 to accommodate a cost-of-living adjustment. Mother moved for an increase in child support after father had received the lump-sum settlement. In addition, she sought an order requiring father to pay a part of the children's medical and dental insurance and expenses, and attorney fees. While the motion was pending, father served mother with an extensive request for discovery and motion to compel. Mother objected, claiming the request was overly burdensome. The administrative law judge (ALJ) denied in part the motion to compel.

The ALJ found that a substantial change in circumstances had occurred and granted mother's motion for an increase in child support to $590 per month and ordered father to pay 25% of the children's monthly medical and dental insurance costs and unreimbursed expenses. The court denied the parties' cross-motions for attorney fees. Father appeals.


1. The trial court has broad discretion in setting child support and will not be overturned absent an abuse of discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Father concedes that his monthly annuity payment of $1,262 is a periodic payment that constitutes income for purposes of calculating child support. He contends, however, that the trial court abused its discretion when it included his lump-sum settlement in its calculation of his income. Whether a source of funds constitutes income for purposes of setting child support is a question of law that this court reviews de novo. Sherburne County Soc. Servs. v. Riedle, 481 N.W.2d 111, 112 (Minn. App. 1992). The statute governing child support defines income as

any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, workers' compensation, reemployment insurance, annuity, military and naval retirement, pension and disability payments.

Minn. Stat. § 518.54, subd. 6 (1996).

"The key word in the definition is `periodic.'" Herrley v. Herrley, 452 N.W.2d 711, 714 (Minn. App. 1990). When an obligor has received the lump-sum in periodic payments, the court has considered those funds as income for purposes of calculating child support. See Mower County Human Servs. ex rel. Meyer v. Hueman, 543 N.W.2d 682, 684 (Minn. App. 1996) (ruling lump-sum annuity payments received every five years constituted income for calculation of child support); Riedle, 481 N.W.2d at 112 (ruling lump-sum settlement payments received every three years were reliable source of income and met definition of income for child support purposes); Herrley, 452 N.W.2d at 714 (ruling periodic impairment compensation constituted income for purposes of calculating child support, even though obligor had right to receive compensation in a lump-sum). But see Lukaswicz v. Lukaswicz, 494 N.W.2d 507, 508 (Minn. App. 1993) (when obligor has failed to fulfill obligation of paying child support, lump-sum settlement is income and may be attached for payment of child support arrearages under Minn. Stat. § 518.611, subd. 6).

Unlike Lukaswicz, father has kept current in his child support payments. Further, unlike Hueman, Riedle, and Herrley, father did not receive periodic lump-sum payments; he received one single lump-sum payment. See Herrley, 452 N.W.2d at 714 ("periodic" is key term in definition of income for child support purposes). Consequently, the single lump-sum settlement does not meet the definition of income in Minn. Stat. § 518.54, subd. 6. The trial court abused its discretion when it included that lump-sum in its calculation of father's income for purposes of child support.

Father contends the trial court abused its discretion by projecting future tax refunds and including them in his calculation of income. The court calculates net income based on money available to the taxpayer. Lenz v. Wergin, 408 N.W.2d 873, 876 (Minn. App. 1987). When computing net income, it is appropriate for the court to include tax refunds. Id. (finding trial court erred in computing obligor's projected net income by failing to include tax refunds).

The trial court estimated father's federal tax refunds for 1996 and 1997 based on his refund from 1995. Father contends the refund was the result of the large deduction he had for mortgage interest in 1995, which would no longer be available to him in 1997 since he paid off his mortgage with the lump-sum settlement.

We note first that father failed to present his 1996 tax returns to support his argument. Further, father would still be able to claim the standard deduction in 1997 even though he did not have an itemized deduction for mortgage interest paid. The difference between the court's calculations and the standard deduction would not amount to a significant change in the tax refund and would be a de minimis change in father's income. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for "de minimis error"). Given the data on record, the trial court did not abuse its discretion.

Father contends the trial court abused its discretion in calculating the parties' living expenses. He provided evidence of his monthly expenses, yet the trial court reduced them considerably without making findings to explain its decision. Conversely, the trial court accepted mother's claimed expenses, although she failed to provide supporting documentation. The trial court also did not make an appropriate finding regarding mother's expenses; its restatement of the expenses that mother "claims" each month does not constitute a finding by the court. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (requiring trial court findings to be stated affirmatively and not merely re-state parties' claims).

For the aforementioned reasons, the record does not support the modified child support obligation. The court should reconsider the issue and recalculate child support on remand. Similarly, the court ordered father to pay 25% of the minor children's medical and dental insurance and unreimbursed bills, based on the erroneous calculations of his income and expenses. This issue also must be reconsidered on remand.

2. Father contends the trial court abused its discretion when it denied some of his discovery requests. We disagree. Minn. R. Civ. P. 26.02(a) empowers the trial court to limit discovery if it determines that the discovery is unduly burdensome.

Father argues that mother made inappropriate objections to discovery by claiming the discovery requests were broad and overly burdensome. Mother's responses to discovery, however, reveal that for the most part she gave detailed reasons for her objections. We conclude the trial court did not abuse its discretion in limiting father's discovery requests.

3. Father alleges the trial court abused its discretion in failing to award him attorney fees. The trial court has discretion to award attorney fees, costs, and disbursements when the expenditures are necessary for the good faith assertion of a party's rights in a case, when the obligor has the means to pay the fees, and when the obligee does not have the funds to pay the fees. Minn. Stat. § 518.14, subd. 1(2), (3) (1996). The award of attorney fees rests solely within the discretion of the trial court and will not be reversed absent an abuse of that discretion. Nazar v. Nazar, 505 N.W.2d 628, 636 (Minn. App. 1993) (reversing fee obligation of one spouse when other had contributed to complexity and length of case to same extent as other spouse), review denied (Minn. Oct. 28, 1993).

Father argues that he was entitled to the fees because he had to expend extra, unnecessary fees in order to pursue his discovery requests and obtain information from mother. His efforts in that regard, however, appear to have been part of the "overly burdensome" nature of the discovery requests that led the trial court to give mother relief. The court also found that the parties do not have the financial resources to cover their own attorney fees, much less each other's. On this record, we conclude the trial court did not abuse its discretion in declining to award either party fees in this matter.

Affirmed in part, reversed in part, and remanded.