This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-99-858

In Re the Marriage of:
James L. Gander, petitioner,
Appellant,

vs.

Connie Koebke Barsic,
f/k/a Connie Gander,
Respondent.

Filed December 7, 1999
Affirmed in part, reversed in part, and remanded
Foley, Judge[*]

Olmsted County District Court
File No. FX-88-3561

Jeffrey D. Bagniefski, Paul E. Deloughery, Bagniefski & Murakami, Barrister Hall, 9 First Street NW, PO Box 6, Rochester, MN 55903 (for appellant)

Michael D. Klampe, Carole A. Pasternak, Klampe, Delehanty & Morris, 300 First Avenue NW, Rochester, MN 55901 (for respondent)

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

Appellant challenges the district courtís order (1) retroactively modifying his child support obligation; (2) refusing to retroactively offset his support by respondentís child support obligation; (3) deviating from the child support guidelines; (4) denying his motion to modify the allocation of federal tax exemptions; and (5) awarding respondent attorney fees. We reverse and remand for further fact finding on whether to retroactively offset appellantís support obligation, but affirm on all other issues.

FACTS

Appellant James Gander and respondent Connie Koebke Barsic f/k/a Connie Gander were married in 1978 and divorced in 1989. The parties have four children, the eldest of whom turned 18 on April 5, 1998. The partiesí stipulated dissolution decree awarded respondent physical custody of the children and required appellant to pay $1,500 per month in child support. Appellant was awarded the tax exemptions for the children for as long as he remained current on his support payments and until respondent began working full time. If respondent began full-time employment, the decree mandated a renegotiation of the allocation of exemptions.

On March 2, 1991, the district court reduced appellantís child support obligation to $1,300 per month based on decreased income. On September 3, 1992, the district court ordered a transfer of physical custody of the oldest child to appellant. Appellantís child support obligation was further reduced to $1,005.55.

On March 14, 1996, in order to reevaluate child support, respondent made a motion to obtain appellantís financial records. The district court ordered appellant to produce most of the financial records requested by respondent, but he failed to comply. Consequently, on December 2, respondent filed a motion to compel, and also included a request to reserve the issue of modification of child support pending receipt of appellantís financial records. On May 1, 1997, the district court granted the motion and expressly reserved respondentís child support motion.

On June 5, 1998, respondent made a motion seeking (1) modification of child support retroactive to August, 1996, based on appellantís increased income; (2) additional child support to cover newly-arisen special needs of the partiesí youngest son, D.J.G.; (3) modification of the dissolution decree to provide that respondent would be entitled to two, and later three, of the tax exemptions for the children; and (4) award of attorney fees. In a responsive motion, appellant requested that he be awarded a permanent and unconditional right to all four tax exemptions.

On February 17, 1999, the district court issued an order that (1) increased child support for the period from December 1996 through June 1998 to $1,972.60; (2) added $200 in child support for D.J.G.ís special needs from July 1, 1998, making appellantís obligation $2,277.25 per month from that point; (3) awarded respondent $3,000 in attorney fees; and (4) denied both partiesí motions to alter the distribution of federal tax exemptions.

D E C I S I O N

1. Retroactive Increase in Child Support

The district court has broad discretion in setting the effective date of a modified support order. Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997). But a modification of child support normally cannot be made retroactive beyond the date the pending motion was served on the responding party. Minn. Stat. ß 518.64, subd. 2(d) (1998).

We have strictly applied the retroactivity provisions of the modification statute. See Buntje v. Buntje, 511 N.W.2d 479, 481-82 (Minn. App. 1994). In Buntje, this court refused to hold that a fatherís request for mandatory child support mediation was the functional equivalent of a motion to modify for the purposes of retroactivity. Id. at 482. Nevertheless, the court noted that the father could have avoided the problem by serving a modification motion and asking that it be held in abeyance until after mediation. Id. Respondentís December 1996 motion to reserve the issue of modification follows the procedure encouraged by Buntje. In essence, respondent moved for modification, but asked that the motion be held in abeyance until appellant complied with the courtís discovery orders. Thus, the modification was properly made retroactive to December 1996.

2. Failure to Offset Support Obligation

Appellant contends that his retroactive support obligation should have been offset by the amount of support due him for his custody of the oldest child during that period. In split custody cases, it is proper to offset one partyís support obligation under the guidelines by the amount of the other partyís guidelines obligation. Sefkow v. Sefkow, 427 N.W.2d 203, 216-17 (Minn. 1988). Refusing to apply the Sefkow procedure in split custody cases is a deviation from the child support guidelines. See Broas v. Broas, 472 N.W.2d 671, 673 (Minn. App. 1991) (indicating that failure to use the Valento formula (the offset procedure used in joint physical custody cases) is a deviation from the child support guidelines). The district court has broad discretion to deviate from the guidelines, but it must make sufficiently detailed findings to support the departure. Gilbertson v. Graff, 477 N.W.2d 771, 774 (Minn. App. 1991).

The district court refused to consider respondentís potential obligation when modifying appellantís support. The court noted that the 1993 modification of appellantís support obligation reflected an offset and that the issue had been resolved. But even if the issue had been resolved in the 1993 order, the present retroactive modification of appellantís obligation to the guidelines maximum nullifies that resolution. In effect, the retroactive modification means that respondentís obligation, if any, was not considered in setting the support from December 1996 through July 1998.

The district court did not make any findings with respect to respondentís income or ability to pay child support during the period from December 1996 to July 1998. Although the record indicates that respondentís income was minimal and that she likely did not have the ability to pay child support, making the denial of an offset ultimately within the courtís discretion, there is no indication that the court made those considerations. Accordingly, we reverse and remand for further fact-finding on this issue.

3. Deviation from Guidelines

Appellant contends the district court erred in making an upward deviation from the child support guidelines by requiring him to pay the extra $200 per month that the district court associated with D.J.G.ís special needs. Appellant argues that the district court did not make sufficient findings to support this deviation. We disagree. The district court found that the child suffered a brain injury, that respondent was forced to quit her job to care for him, and that the injury created new expenses in excess of $1,000 per month. These findings are supported by the record and are sufficiently detailed to warrant the deviation.

4. Tax Exemptions

Determinations relating to the allocation of tax exemptions will not be reversed absent an abuse of discretion. Valento v. Valento, 385 N.W.2d 860, 863 (Minn. App. 1986), review denied (June 30, 1986). Normally, the custodial parent is entitled to claim the federal tax exemption. Gerardy v. Gerardy, 406 N.W.2d 10, 14 (Minn. App. 1987). The custodial parent, however, may waive the right to the exemption, either voluntarily or by court order. Theroux v. Boehmler, 410 N.W.2d 354, 358 (Minn. App. 1987).

Appellant argues that he should have been awarded the exemptions permanently and unconditionally because of the high amount of child support he will be paying and because the exemptions are worthless to respondent who has no income. Appellantís argument is without merit. First, appellant provides no basis for removing the condition that he remain current with his support payments. Next, the fact that respondent has no income is irrelevant because she is precluded from claiming the exemptions until she has full-time income. Finally, it is important to recognize that if and when respondent becomes employed on a full-time basis, appellant will not be automatically divested of the exemptions. Rather, the decree directs the parties to renegotiate the allocation of the exemptions. Based on those considerations, along with the presumption that the custodial parent normally gets the benefit of the exemption, the district court did not abuse its discretion in refusing to give appellant the exemptions permanently and unconditionally.

5. Attorney Fees

An award of attorney fees rests within the discretion of the district court. Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Feb. 18, 1999). An award of attorney fees in a dissolution action need not be based on one partyís inability to pay the fees. Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996). Attorney fees may be awarded "against a party who unreasonably contributes to the length or expense of the proceeding." Minn. Stat. ß 518.14 (1998). Evidence of obstruction of discovery may be sufficient to warrant an award of attorney fees. Rask v. Rask, 445 N.W.2d 849, 855 (Minn. App. 1989).

The district court found that the dispute over modifying support was occasioned, in large part, by appellantís obstruction of discovery. The record contains support for this proposition. The court also stated that (1) appellantís motion for custody of the two boys appeared to be for harassment purposes; (2) appellant discharged and retained counsel a number of times; (3) appellant made a number of inappropriate and unreasonable claims; and (4) appellant was held in contempt of court three times. There is some support in the record for these findings as well. Accordingly, the award of attorney fees was not an abuse of discretion.

Affirmed in part, reversed in part, and remanded.

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