This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Shirley Ann Kowaliw, petitioner,



Mark Joseph Kowaliw,


Filed July 6, 1999

Affirmed in part, reversed in part, and remanded; motion to strike denied

Peterson, Judge

Hennepin County District Court

File No. DC 141391

Allen H. Gibas, Allen H. Gibas, P.A., 1422 West Lake Street, Suite 320, Minneapolis, MN 55408 (for appellant)

Cory D. Gilmer, 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Short, Presiding Judge, Peterson, Judge, and Schultz, Judge.[*]



Appellant-mother Shirley Kowaliw appeals from a district court order denying her motion seeking an increase in child support and an award of support arrearages, unreimbursed medical expenses, and attorney fees. We affirm in part, reverse in part, and remand; we deny mother's motion to strike.


When the parties were divorced in 1987, they were awarded joint legal and physical custody of their son, with the son residing with mother during the school year and respondent-father Mark Kowaliw exercising weekday and weekend visitation. At that time, mother's gross income was $36,000 per year, and father's was $28,000. Mother was awarded $150 per month in child support. The dissolution judgment provided that the "parties shall equally divide the cost of any unreimbursed medical or dental expenses incurred by or on behalf of the minor child of the parties."

In 1994, Hennepin County brought a motion on behalf of mother to increase father's child support obligation. In connection with the motion, mother completed paperwork regarding her financial status and indicated that she had not received any child support since December 1992. No hearing was held on the motion, and the issue of arrearages was not presented to the district court. In November 1994, the district court issued an order finding that father's net monthly income was $2,220 and increasing his monthly child support obligation to $216. In May 1996, a cost-of-living adjustment increased father's monthly child support obligation to $224.

In March 1997, father brought a motion to clarify the parties' custodial arrangement. The parties reached a stipulated settlement of the issue. The resulting stipulation and order, filed in September 1997, provided that the parties would continue sharing joint physical custody.

In April 1997, mother filed a motion seeking an increase in father's child support obligation, support arrearages, reimbursement of medical expenses, and attorney fees. The motion did not indicate the time period for which mother sought arrearages or the amount claimed due. In August 1998, mother filed a supplemental motion stating that she sought arrearages in the amount of $2,700 for the time period from December 1992 through June 1994. She alleged that she had incurred $2,773.62 in medical expenses for the son and requested reimbursement from father for one-half of that amount. The supplemental motion also requested that child support be continued because the son had failed to become emancipated, due to mental illness, when he turned age 18 in December 1997. Mother alleged that father's gross annual income was $46,432.26 in 1994, $52,375.50 in 1995, and $56,751.12 in 1996. Mother stated that her monthly expenses were $2,993, $1,619 of which was attributable to the son.

The district court granted the continuation of child support but denied the remainder of the relief requested by mother.


1. The district court has broad discretion in deciding whether to modify a child support order, and its decision will not be reversed unless the court reached a clearly erroneous conclusion against logic and the facts on record. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). A child support order may be modified upon a showing of a substantial change in circumstances that makes the existing order unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1998).

It is presumed that there has been a substantial change in circumstances under paragraph (a) and the terms of a current support order shall be rebuttably presumed to be unreasonable and unfair if:

(1) the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.

Id., subd. 2(b).

Mother argues that the district court erred in denying her motion to increase child support without making any findings on the parties' circumstances and those of the son. See Johnson v. Johnson, 533 N.W.2d 859, 865 (Minn. App. 1995) (listing findings required to support a determination that the statutory presumption was rebutted). Based on father's 1996 income, mother calculates father's guidelines support obligation to be $860.12 per month, which is more than 20% and $50 higher than father's current support obligation of $224 per month. Mother's calculation, however, assumes that she is the sole physical custodian of the son.

In joint physical custody situations, each parent is obligated to pay child support for the time period when the child is in the other parent's custody. Tweeton v. Tweeton, 560 N.W.2d 746, 747 (Minn. App. 1997), review denied (Minn. May 28, 1997). The district court determines each parent's support obligation and offsets the lower amount against the higher amount. Id. at 748. This formula is used in joint physical custody situations to determine each parent's guidelines support obligation. Id.

The party seeking a modification of child support has the burden of proving that a modification is warranted. Bruner v. Bruner, 429 N.W.2d 679, 683 (Minn. App. 1988), review denied (Minn. Nov. 30, 1988). The September 1997 stipulation and order provided that the parties would continue sharing joint physical custody, that the parties would have physical custody of the son on alternating weeks, and that the son could exercise choice with respect to the time spent with each parent. Mother failed to present evidence showing how much time the son actually spends with each parent. Absent such evidence, mother has not shown that the district court erred in denying her motion to increase child support.

2. Mother argues that the district court erred in concluding that she waived her right to claim child support arrearages for the period from December 1992 until June 1994 by failing to raise the issue in the November 1994 or September 1997 court proceedings. "Waiver is the intentional relinquishment of a known right and is consensual in nature. * * * While knowledge may be actual or constructive, intention can be inferred from conduct." Hedged Inv. Partners, L.P. v. Norwest Bank Minnesota, N.A., 578 N.W.2d 765, 771 (Minn. App. 1998). Voluntary choice, not mere negligence, is the essence of waiver, and a waiver must be based on a full knowledge of the facts. Cohler v. Smith, 280 Minn. 181, 189, 158 N.W.2d 574, 579 (1968). The record contains no evidence that mother made a voluntary choice to waive her claim for arrearages. By itself, her failure to raise the issue in earlier court proceedings is insufficient to prove waiver.

The district court also stated that "equity" required mother to raise her claim for arrearages in the November 1994 or September 1997 court proceedings. Equitable defenses, however, are not available in an action to collect support arrearages. Faribault-Martin-Watonwan Human Services ex rel. Jacobson v. Jacobson, 363 N.W.2d 342, 346 (Minn. App. 1985).

We reverse the district court's denial of mother's claim for arrearages and remand for findings on whether father made child support payments during the time period from December 1992 until June 1994.

3. Mother argues that the district court erred in construing the provision in the dissolution judgment regarding reimbursement of medical expenses as requiring the party seeking reimbursement to show that the expenses were reasonable and necessary. The parties' dissolution judgment was entered pursuant to their stipulation.

Stipulations are treated and interpreted as binding contracts. While the construction and effect of an unambiguous stipulation are questions of law, those questions become factual when an ambiguity exists.

Emerick on Behalf of Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996) (citations omitted).

The dissolution judgment provides that the "parties shall equally divide the cost of any unreimbursed medical or dental expenses incurred by or on behalf of the minor child of the parties." Mother concedes that the provision only requires reimbursement of reasonable and necessary expenses but argues that it should be construed as requiring a party seeking to avoid an expense to demonstrate that the expense was not reasonable and necessary. We disagree. The record does not indicate that the parties intended the construction urged by mother. The party seeking reimbursement will have the information required to determine reasonableness and necessity. The district court's construction of the medical-expense reimbursement provision is consistent with the general rule that the burden of proof falls on the party who has particular knowledge of the relevant facts. See Larson v. Commissioner of Revenue, 581 N.W.2d 25, 30 (Minn. 1998) (placing burden of proof on party who has particular knowledge of relevant facts is in accordance with common law principles).

Although we agree with the district court's construction, we conclude that, in light of the evidence presented by mother, the district court erred in denying her reimbursement of medical expenses without making specific findings supporting its decision. Mother submitted documentation showing what medical services were provided, that the services were provided for the son by medical professionals, and the amount charged for each service. For example, mother presented evidence showing that medications were prescribed for the son, that the prescriptions were filled by a pharmacy, and the amount charged for the prescriptions. Absent evidence to the contrary, such evidence was sufficient to prove that the medical expenses incurred by mother for the son were reasonable and necessary. We reverse the denial of reimbursement of medical expenses and remand the issue to the district court.

4. The district court shall award attorney fees in an amount necessary to enable a party to carry on the proceeding, provided that the court finds that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding; that the party from whom fees are sought has the means to pay them; and that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1998). An award of attorney fees rests almost entirely within the district court's discretion and will be affirmed absent a clear abuse of discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). Given the district court's broad discretion, we cannot conclude that it erred in denying mother attorney fees.

5. Mother filed a motion to strike excerpts from the argument section of father's brief. The excerpts contain father's characterizations of evidence in the record, of the district court order currently on appeal and previous orders entered in this action, and of what happened at the hearing before the district court. Father's characterizations do not amount to misrepresentations of fact. We deny mother's motion to strike. In addition, mother's request for attorney fees on appeal is denied.[1]

On remand, the district court may, at its discretion, take additional evidence and revisit the issue of attorney fees.

Affirmed in part, reversed in part, and remanded; motion to strike denied.

[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Mother filed a motion to supplement the record with the transcript of the October 27, 1998, hearing before the district court. The motion was unnecessary because the transcript is part of the record on appeal. See Minn. R. Civ. App. P. 110.01 (record on appeals includes transcripts of the proceedings). Although untimely, the transcript was properly filed and considered by the court in deciding this appeal.