This opinion will be unpublished and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:
James Christian Dittel, Jr., petitioner,


Tammy Marie Dittel,

Filed November 3, 1998
Lansing, Judge

Dakota County District Court
File No. F1953082

Mark A. LeChevalier, 214 West 15th Street, #408, Minneapolis, MN 55403 (for respondent)

Robert J. Lawton, 1100 West Seventh Street, St. Paul, MN 55102 (for appellant)

Considered and decided by Lansing, Presiding Judge, Harten, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


In an appeal from an order denying modification of child support, James Dittel, Jr., challenges the propriety of an evidentiary hearing that did not include oral testimony and the factual basis for three findings relating to the procedural posture of the case and the acceptance of an offer of proof on income. Because the district court's procedural determinations were within its discretion and its findings are reasonably supported by the record, we affirm.


James and Tammy Dittel dissolved their eight-year marriage in July 1996. The dissolution judgment incorporated a stipulation in which the Dittels agreed to joint physical custody of their two children, that James Dittel would pay monthly child support of $630 after January 1, 1997, and any requests for child support modification would be determined as if Tammy Dittel had sole physical custody. The judgment and decree included findings that James Dittel's monthly net income was $1,896 and Tammy Dittel's monthly net income was $650.

In June 1997, James Dittel moved to modify child support and to reopen that part of the judgment that provided that the child support would be determined as if Tammy Dittel had sole physical custody. He requested that the court declare his waiver of rights in determining child support void as a violation of public policy and set support based on the formula provided in Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn. App. 1986), review denied (Minn. June 30, 1986). Tammy Dittel filed responsive motions including a request for an evidentiary hearing on the parties' incomes and expenses. A Dakota County judge granted "petitioner's [James Dittel's] motion for an evidentiary hearing" on income and expenses. "All other motions" were denied without prejudice.

In January 1998, a second Dakota County judge conducted the evidentiary hearing. The second judge directed the parties to compile the documents that constituted evidence of the parties' incomes, submit their income analyses, and agree on the amount of time each spent with the children. The court took no oral testimony at the hearing, but permitted the attorneys to argue their respective positions.

The district court issued a February 1998 order denying James Dittel's motion to modify child support. The court found that James Dittel's income had marginally increased and accepted James Dittel's assertion that Tammy Dittel's monthly net income had risen to $1,800. The court concluded that Tammy Dittel's increased income was a substantial change in circumstances, but the change did not make the original order unfair or unreasonable.


Decisions relating to modification of child support are within the sound discretion of the district court, and a reviewing court will reverse an exercise of that discretion only when it is based on a "clearly erroneous conclusion that is against logic and the facts on the record." Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)). Procedural and evidentiary rulings are also within the district court's discretion and are reviewed under an abuse-of-discretion standard. See State v. Glaze, 452 N.W.2d 655, 660 (Minn. 1990); Lines v. Ryan, 272 N.W.2d 896, 902 (Minn. 1978). Analogous to a successor judge who assumes the duties of a prior judge due to death or disability, a subsequent district court judge who conducts a hearing ordered by a previous judge has broad power to resolve all disputes before the court. See Minn. R. Civ. P. 63.01 (judicial powers of successor judge).


James Dittel disputes that the second district court judge's procedure for submission of documents without oral testimony complied with the first judge's order for an evidentiary hearing.

A district court "need not hold an evidentiary hearing on a motion for modification of maintenance or support," Minn. Stat. § 518.64, subd. 2(f) (Supp. 1997). Nonetheless, the submission procedure followed by the subsequent judge provided an evidentiary hearing. "Evidentiary hearing," is not defined within the child support statutes. See Minn. Stat. §§ 518.003, .54, .64 (1996 & Supp. 1997). But the plain connotation of the phrase is a hearing in which a court accepts evidence. See Black's Law Dictionary 557, 721 (6th ed. 1990) ("evidentiary" means "[h]aving the quality of evidence; constituting evidence; evidencing"); ("hearing" is a proceeding "in which witnesses are heard and evidence presented"). In receiving and considering documentary evidence on income, the district court conducted an evidentiary hearing.

In a subsidiary argument, James Dittel contends that the district court's decision to limit the evidence to submitted documents was an abuse of discretion that prejudices his remaining motions. The Minnesota Rules of Civil Procedure allow a court to take evidence either by the submission of written documents, through oral testimony, or both. Minn. R. Civ. P. 43.05. See Savoren v. Savoren, 386 N.W.2d 288, 291 (Minn. App. 1986) (district court did not abuse its discretion "in refusing to allow oral testimony" under an earlier version of the rules for family court based on rule 43.05). To present oral testimony, the Rules of Family Court Procedure require a party to make a specific demand. See Minn. Gen. R. Pract. 303.03(d). James Dittel made no demand for oral testimony before or during the hearing. The district court did not abuse its discretion by not taking oral testimony at the hearing.

Furthermore, the district court's decision was not prejudicial to the remaining motions. The second Dakota County judge's order specifically stated that James Dittel could renew his other motions after the evidentiary hearing. James Dittel did not renew his other motions but rather brought this appeal. Because the other motions are still renewable, he has failed to demonstrate prejudice. See Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464-65 (1944) (party claiming prejudice has burden of demonstrating error and establishing prejudice), cited in Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).


James Dittel disputes three specific findings in the district court's order denying his motion to modify child support. He challenges the first two factual findings that state the matter was before the court on James Dittel's motion for reduction of child support and further state that the first judge ordered a hearing on James Dittel's child support motion and denied all other motions. Although this challenge is essentially James Dittel's procedural objection recast as a factual issue, we address it in the context that it is raised.

The order of the first Dakota County judge is ambiguous. It granted James Dittel's motion for an evidentiary hearing on income and expenses and contains a general denial of all other motions. We agree that it was Tammy Dittel, not James Dittel, who requested the evidentiary hearing, but the evidentiary hearing had to attach to a motion, and the motion was obviously Dittel's modification motion. To read, as James Dittel urges, the first judge's order as denying James Dittel's modification motion would be a hypertechnical reading.

The second Dakota County judge and the parties clearly proceeded on the basis that the hearing was to determine James Dittel's modification motion. The judge stated at the opening of the hearing that James Dittel "is asking that the court modify the amount of child support that he is paying at this time." During the hearing the judge said at least twice that they were there as a result of James Dittel's motion to modify child support. James Dittel's attorney stated that "this motion is brought" pursuant to "Minn. Stat. § 518.64, subd. 2, substantial change of circumstances," and requested relief be effective as of the motion's filing date. On this record, James Dittel cannot now attempt to revive the first order's ambiguous language to limit the effect of the second order. See Noltimier v. Noltimier, 280 Minn. 28, 29, 157 N.W.2d 530, 531 (1968) (appellant has the burden to provide an adequate record to support its claims). The district court's findings on the procedural posture of the case are not erroneous.

The third disputed factual finding states that James Dittel's attorney contended that a full evidentiary hearing would prove that Tammy Dittel's net monthly income had risen to $1,800. Tammy Dittel acknowledged that her income had risen, but maintained that it was only $1,400 net per month. The district court accepted James Dittel's offer of proof that he would be able to establish an income of $1,800. The transcript supports the district court's finding. The on-record discussion shows that the court carefully questioned the nature of his proposed proof. James Dittel's attorney suggested that cross-examination might show some additional income from Tammy Dittel's sister. But the court indicated that the minimal possible contribution of the sister did not warrant an extended inquiry. On this record, the court did not err in relying on the $1,800 monthly figure as the amount James Dittel would be able to prove.


Tammy Dittel has moved for attorney's fees under Minn. Stat. § 549.211. Minnesota statute allows sanctions against a party for bringing a frivolous appeal. Minn. Stat. § 549.211, subd. 3 (Supp. 1997). "An award of attorney fees on appeal rests within the discretion of this court." Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994) (citation omitted). James Dittel's issues on the hearing procedures do not provide a basis for remand or reversal, but they are not frivolous. We deny Tammy Dittel's motion for attorney's fees on appeal.