This opinion will be unpublished and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:

Benita A. Gully,

n/k/a Benita Fjerstad, petitioner,



Edward R. Gully, Jr.,


Filed June 9, 1998


Klaphake, Judge

Anoka County District Court

File No. F4-89-11137

Jennifer R. Wellner, Glen Oaks Ctr., 2E S. Pine Dr., Circle Pines, MN 55014 (for respondent)

Christopher E. Brevik, Boulevard Plaza, 7050 Brooklyn Blvd., Brooklyn Center, MN 55429 (for appellant)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.



Respondent Benita A. Gully, n/k/a Benita Fjerstad, sought a retroactive modification of appellant Edward R. Gully, Jr.'s child support obligation for the period from 1991 to 1996, under Minn. Stat. § 518.64, subd. 2(c) (Supp. 1997) (modification may be made retroactive if court finds moving party precluded from serving modification motion due to other party's material misrepresentation). This appeal is from the district court's grant of that motion and entry of judgment against appellant for $23,355.28 in past due child support and $1,500 in attorney fees. Because the district court failed to make adequate findings and because our independent review of the record fails to reveal any basis for the court's retroactive modification of child support or its award of attorney fees, we reverse.



By statute, a trial court may order retroactive modification of child support only to the date of service of the motion to modify the existing support order. Minn. Stat. § 518.64, subd. 2(c) (Supp. 1997).

However, modification may be applied to an earlier period if the court makes express findings that the party seeking modification was precluded from serving a motion by reason of a significant physical or mental disability, a material misrepresentation of another party, or fraud upon the court and that the party seeking modification, when no longer precluded, promptly served a motion.

Id. Thus, a court has the authority to modify a child support order retroactively only if specific requirements are met and express findings are made on those requirements.

Respondent does not claim she has a physical or mental disability, nor does she claim fraud upon the court. Rather, she argues that appellant's failure to report his income status to the county as required by a 1991 order[1] constituted a material misrepresentation that precluded her from moving for modification.

Appellant admitted that, from 1991 until 1996, he failed to provide any information about his income to the county. However, he claimed that he did not know he was supposed to provide this information until January 1997, when a hearing was held before an administrative law judge in response to respondent's September 1996 request that the county review appellant's child support obligation. Nothing in the record proves otherwise: there is no evidence showing that the county ever requested this information from appellant, even though it had a number of contacts with him between 1991 and 1996, or that respondent ever contacted appellant or the county to ask if appellant was complying with the order, even though she stated by affidavit that, since 1991, she has suspected that appellant was understating his income.

Under these circumstances, respondent has failed to prove she is entitled to retroactive modification. See Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996) (party seeking modification has burden of proof). In particular, she presented no evidence to prove that appellant intentionally failed to disclose his income status to the county, that she was induced to act by his omissions, or that she relied on his failure to disclose. See M.H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992) (setting out elements of intentional misrepresentation). Nor did respondent present any evidence to prove that she was precluded from serving a modification motion by appellant's actions or omissions. Cf. Johnson v. Johnson, 533 N.W.2d 859, 861, 866 (Minn. App. 1995) (mother entitled to retroactive modification where father required by judgment and decree to verify his income by providing copies of pay stubs and tax returns to mother, and father "had repeatedly refused [mother's] verbal requests for these [income] records and only responded after her attorney sent him a written demand"). Rather, by not taking any action for six years, she may be deemed to have waived her claim to retroactive modification. Cf. Hicks v. Hicks, 533 N.W.2d 885, 886 (Minn. App. 1995) (decrease in support could not be made retroactive to date obligor first served motion two years earlier, because obligor abandoned motion by failing to pursue it, conducting no discovery, and presenting no evidence).

We therefore conclude that, based on the record before us, the district court abused its discretion in determining that appellant had committed a material misrepresentation that precluded respondent from earlier moving to modify appellant's child support obligation at an earlier date, as required by statute. See Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (trial court's broad discretion to modify child support must be exercised within limits set out by legislature).


The district court in this case awarded respondent $1,500 in attorney fees "based on [appellant's] failure to comply with the [1991 order] requiring him to report his income status" to the county. This sole finding suggests that the district court considered the award justified by appellant's conduct. Minn. Stat. § 518.14, subd. 1 (1996) (court may award need-based or conduct-based attorney fees). However, because there is no evidence that appellant's conduct was intentional or willful, there is no basis for awarding conduct-based fees. Nor is there any basis for a need-based award in this case: documents submitted at the initial January 1997 hearing show that the parties have roughly equal incomes and expenses.

Thus, the award of attorney fees is unsupported by the record or by adequate findings, and we reverse it as an abuse of the district court's discretion. Cf. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) ("There must be a clearly erroneous conclusion that is against logic and the facts on the record before this court will find that the trial court abused its discretion."); Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991) (where record would have supported affirmance of attorney fee award, but trial court made no findings, remand required).


[ ]1 That 1991 order required appellant to report his income status to Anoka County Support Enforcement. On a monthly basis [appellant] shall provide copies of his pay stubs or other documents showing his income for the month. Additionally, [appellant] shall provide to Support Enforcement a complete copy of his income tax returns, including all supporting schedules, by April 30 of each year.