This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


In Re the Support of:

M.S. and D.N. Ludowese, Kimberly A. Macemon,
f/k/a Kimberly A. Ludowese, petitioner,


Nicholas J. Ludowese,

Filed September 14, 1999
Remanded and Motion Denied
Davies, Judge

McLeod County District Court
File No. F28720827

Mark A. Carrigan, Carrigan Law Office, 227 South Main St., Hutchinson, MN 55350 (for respondent)

Julie Wacker Hanjani, Hanjani & Barley, 235 Hassan St. S.E., Hutchinson, MN 55350 (for appellant)

Considered and decided by Davies, Presiding Judge, Willis, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Nicholas Ludowese (father) alleges the district court's order increasing his support obligation is defective because it lacks findings on his income, the children's needs, and other statutory factors. Citing father's failure to cooperate in discovery, respondent Kimberly Macemon (mother) alleges the district court should have awarded her more than $500 in attorney fees. Mother also seeks fees on appeal. We remand the support issue and deny mother's requests for increased fees and for fees on appeal.


Mother moved to increase father's support obligation. After discovery problems, the district court issued an order that noted father was a self-employed farmer, found father's net monthly income had increased, and set father's arrears. The court failed to find father's actual net monthly income. Both parties made post-hearing motions, and the district court issued a post-hearing order refusing to reduce father's support obligation, reducing the arrearages, and awarding mother attorney fees.



Child support may be modified if the moving party shows a substantial change in circumstances rendering the existing support award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1998). Whether to modify support is discretionary with the district court. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).

Here, the district court did not find father's net monthly income as required by statute and case law. See Minn. Stat. § 518.551, subd. 1(a) (1998) (guidelines apply "to all proceedings" involving support); Minn. Stat. § 518.551, subd. 5(b) (1998) (court shall derive support obligation by multiplying obligor's net income by guideline percentage); Knott v. Knott, 358 N.W.2d 493, 496 (Minn. App. 1984) (to apply guidelines, trial court "must arrive at a reasonable estimate of [obligor's] net monthly income"). Also, in addressing father's net monthly income, the district court should have addressed how depreciation and debt service impacted father's income. See Stevens County Soc. Servs. Dep't v. Banken, 403 N.W.2d 693, 697 (Minn. App. 1987) (stating that, when support obligor is farmer, absent evidence indicating obligor is not required to replace machinery, "total disregard of depreciation is reversible error"); see also Bartl v. Bartl, 497 N.W.2d 295, 300 (Minn. App. 1993) (remanding support because expenses incurred "solely" to produce income should be considered in determining obligor's support obligation).

We remand for the district court to find father's net monthly income. In doing so, the district court shall address father's depreciation and debt service. If support deviates from the guideline amount, the district court shall make the findings required by Minn. Stat. § 518.551, subd. 5(i) (1998).[1]


Mother alleges her attorney fee award is inadequate because father unreasonably prolonged the proceedings by not providing complete discovery. See Minn. Stat. § 518.14, subd. 1 (1998) (allowing court to award fees against a party who unreasonably contributes to length or expense of proceeding). A district court's fee award will not be altered unless it is an abuse of discretion, and only in a "rare case" will an appellate court increase a fee award. Nemmers v. Nemmers, 409 N.W.2d 225, 228 (Minn. App. 1987). Here, the district court made its fee award after indicating it was aware of: (a) the discovery problems; (b) mother's allegation that father tried to defraud her and the children; (c) father's failure to appear at a hearing; and (d) father's record of nonpayment of support. On this record, we cannot say this is one of the "rare cases" in which we will increase the district court's award of attorney fees.

Mother also seeks attorney fees on appeal, apparently based on father's conduct in taking the appeal. Because the appeal has merit, we decline to award fees.

Remanded and motion denied.

[1] To the extent father alleges the support obligation order is defective because the findings do not address statutory factors discussed in Moylan, we note that Moylan and its progeny were partially overruled by statute in 1991. See 1991 Minn. Laws ch. 292, art. 5, §§ 75-78 (amending child support guidelines). Under the current statute, if support is set at the guideline level, findings are required only on the obligor's net monthly income and "any other significant evidentiary factors[.]" Minn. Stat. § 518.551, subd. 5(i). Only if support deviates from the guidelines must the district court specifically address the statutory criteria. Id.; Kahn v. Tronnier, 547 N.W.2d 425, 429 (Minn. App. 1996) (remanding non-guideline support award because it lacked findings "specifically address[ing]" statutory factors), review denied (Minn. July 10, 1996).