This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-00-1260

 

In Re the Marriage of:

Laurel Ann March,

f/k/a Laurel Ann Crockarell,

f/k/a Laurel Ann March Crockarell,

petitioner,

Respondent,

 

vs.

 

James L. Crockarell,

Appellant.

 

 

Filed February 6, 2001

Affirmed in part and reversed in part
Foley, Judge^*

 

Ramsey County District Court

File No. F1-80-448369

 

Mark Nygaard, Nygaard & Longe, 210 Ivy League Place, 475 North Cleveland Avenue, St. Paul, MN  55104; and

 

Amy A. Anderson, Assisant Ramsey County Attorney, 50 West Kellogg Boulevard, Suite 560, St. Paul, MN  55102 (for respondent)

 

John G. Westrick, Marcia McDowall-Nix, Tammy L. Merkins, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN  55101 (for appellant)

 

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

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            In this post-dissolution proceeding, respondent filed a motion to find appellant in contempt of court based upon his failure to pay child support.  The district court found appellant in contempt, determined the amount of arrearages, and entered judgment.  This court dismissed the appeal from the contempt order as premature.  Appellant now challenges the amount of arrearages on a number of grounds, contends that the interest was incorrectly calculated, and asserts that the court abused its discretion in awarding attorney fees and costs.  We affirm in part and reverse in part.          

FACTS

            Appellant James Crockarell and respondent Laurel Ann March divorced in 1983. March received custody of their two children and Crockarell was ordered to pay child support at the rate of $350 per month for each child through age 12, at which point the rate would increase to $450 per month for each child.  Each child’s support was to continue until that child was no longer living with and was no longer dependent upon March for support.

            Crockarell ceased child support payments after July 1989.  In September 1994, the parties’ older child moved in with Crockarell.  In May 1998, the district court found Crockarell in arrears in the amount of $65,933.92, plus interest, for failure to pay child support.  The court rejected Crockarell’s claim that a refund on March’s 1984 amended tax return of $58,559.26 should be credited to his child support arrears in one of two ways:  half should be credited to his child support payments because of an oral agreement between the parties that they would split it or it should be used to modify the original marital property judgment. 

            In October 1998, the district court issued amended findings and denied Crockarell’s motion for a new trial.  In June 2000, the district court found that Crockarell had the ability to pay child support and attorney fees and had intentionally misrepresented his financial situation, and so held him in contempt of court.  The court ordered Crockarell to serve 180 days in the Ramsey County Workhouse, with execution of the sentence stayed so long as he paid (1) child support and interest in the amount of $94,990.54 to March, (2) attorney fees in the amount of $22,913.98 to the Ramsey County Attorney, and (3) attorney fees in the amount of $49,247.15 to March.  In July 2000, the district court issued a judgment pursuant to the June 2000 order in favor of March and against Crockarell in the amount of $94,990.54 for child support arrearages.

D E C I S I O N

            In reviewing a district court decision in cases involving provisions for the support of the children of the parties, “there must be a clearly erroneous conclusion that is against logic and the facts on the record before [the] court will find that the trial court abused its discretion.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Where the court reviews an award of attorney fees under Minn. Stat. § 518.14 (2000), the district court’s decision will stand unless the court clearly abused its discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

I.  Child Support Arrearages

            Statute of Frauds

            In 1984, March filed an amended tax return for the tax years 1979 and 1980 for losses she incurred on property received in the marital property distribution.  March received checks from the Internal Revenue Service totaling $58,559.26.  Crockarell maintains he and March had agreed that he was entitled to half of this refund and that his half should have been attributed to future child support obligations.  In its May 1998 order, the district court found that no agreement between the parties existed regarding the prepayment of child support.  The district court also found that, even if there had been such an agreement, that agreement would be unenforceable under Minn. Stat. § 513.01(1) (1998). 

            The Minnesota Statute of Frauds states that a writing is required to maintain an action upon “[e]very agreement that by its terms is not to be performed within one year from the making thereof.”  Id.  The court found that the agreement alleged by Crockarell could not have been performed in one year because it took multiple years for March to receive the tax return and it would take multiple years for Crockarell’s child support obligations to elapse. 

            Crockarell argues that the standard is not whether the performance might take more than a year, but rather whether it could occur within one year.  See Braaten v. Midwest Farm Shows, 360 N.W.2d 455, 457 (Minn. App. 1985) (standard is whether performance is possible).  However, by its own terms, the alleged agreement still does not avoid the statute of frauds because of the number of years during which the tax return funds would serve to satisfy Crockarell’s obligation to pay child support. 

            Regardless of the court’s interpretation of the statute, the district court affirmatively found no agreement of this sort between the parties, stating that such an allegation was “not credible or supported by the evidence.”  Therefore, we defer to the district court’s discretion and affirm its decision on this issue.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).

            Modification of Marital Property Distribution

            Crockarell argues in the alternative that the district court erred in refusing to modify the original distribution of marital property by factoring in March’s tax refund.  Under Minnesota law, a division of real and personal property is final unless the court finds “the existence of conditions that justify [its] reopening.”  Minn. Stat. § 518.64, subd. 2(e) (2000); see also Kerr v. Kerr, 309 Minn. 124, 126, 243 N.W.2d 313, 314 (1976) (final property division may not be modified by court except upon showing of fraud or mistake). The district court found that Crockarell was aware during the dissolution proceeding that March would thereafter be entitled to tax refunds due to losses related to her marital property, and that any interest he had in those losses should have been litigated at that time.^[1]  Because this determination was within the district court’s discretion, we affirm.

            Calculation of Arrearages

            Crockarell disputes the calculation of arrearages made by the district court, claiming specifically that the district court miscalculated the amount of child support paid in 1987. Crockarell claims that the district court gave him credit for $16,550 for 1987 payments at one point, but reduced that figure to $15,850 on the schedule of payments, resulting in a $700 discrepancy.  However, the $16,550 figure does not reflect the amount of child support payments for 1987, but rather the sum of individual checks, portions of which the district court determined were not gifts from Crockarell to March, as March claimed, but rather child support.  The district court apparently found that $700 of a $1,550 November 1987 check was not to be credited to child support: “Credit given for $700 support by [March] * * * [March] claims that $850 was to pay her American Express bill.”  The reasons behind the arithmetic are not readily discernible, but contrary to Crockarell’s assertion, the numbers ultimately balance. 

            Crockarell also misrepresents the record at several points in an attempt to impugn the district court’s calculation of arrears and interest.  At one point, he states that his maximum obligation for 1989 would have been $4,500, where the sum of the figures that he provides reveal it to be $8,700.  And he mischaracterizes the figure of $2,433.92 from Exhibit A to the order of May 21, 1998, describing it as an incorrect calculation of the difference between his obligation and the amount paid as of December 31, 1989, when it is clearly that amount plus interest.  See Minn. R. Civ. App. P. 128.02, subd. 1(c) (requiring facts to be stated “with complete candor”). 

            Crockarell’s arguments on this issue test the bounds of good faith.  He has offered no basis upon which to assume that the district court miscalculated the child support arrearages.  Therefore, we affirm the district court’s calculation of arrearages.    

            Calculation of Interest

            Crockarell argues that the district court erred as a matter of law in calculating the amount of interest mandated by Minnesota statute.  Under Minnesota law, “interest accrues from the date the unpaid amount due is greater than the current support due.” Minn. Stat. § 548.091, subd. 1a (2000).  Crockarell submits that an earlier version of the statute is controlling for those arrears that predated its revision.  The prior version read: “Interest accrues from the date the judgment on the payment or installment is entered and docketed.”  Minn. Stat. § 548.091, subd. 1a (1992). 

            Statutory construction is a question of law, which this court reviews de novo. Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). When construing a statute, the court has been provided with guidance from the legislature:

When the words of a law in their application to an existing situation are clear and free from all ambiguity, the letter of the law shall not be disregarded under the pretext of pursuing the spirit. 

 

Minn. Stat. § 645.16 (2000).  Because March brought her motion of contempt of court for non-payment in 1996, the proper version of the statute is the amended version.  The earlier version, which required a docketed judgment, has no relevance to this case, and Crockarell has indicated nothing in the present statute that suggests that the court should consider the prior language.  We affirm the district court’s calculation of interest.

            Offset of Arrearages

            The parties’ older child moved in with Crockarell in September 1994.  The district court recognized this change in circumstances by terminating Crockarell’s obligation to support that child as of that date.  Crockarell argues that the district court miscalculated his arrearages because it failed to offset his remaining child support obligation to March with any child support that March owed him for maintenance of the older child.  He cites Minn. Stat. § 518.64 (2000) for authority that the district court may modify the terms of child support, and in doing so it must follow the guidelines provided in Minn. Stat. § 518.551, subd. 5 (2000).  See also Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999) (retroactive modification of support within court’s discretion). 

            However, this change of circumstances did not require the modification of the child support order, because termination of Crockarell’s obligations with respect to the child who is no longer living with March is mandated by the terms of the order itself:  the child support obligation for each child was to continue until the child was no longer living with and no longer dependent upon March for support.  Therefore, we affirm the district court’s calculation of arrearages after September 1994.

II.  Attorney Fees

            An award of attorney fees in family court rests almost entirely within the discretion of the district court.  Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977).  The statutory basis for such an award is found at Minn. Stat. § 518.14, subd. 1 (2000): 

[T]he court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding.

 

            * * * *

 

Nothing in this section precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.

 

Id.  The district court found that Crockarell “made a number of material misrepresentations during the course of this proceeding” and that he had been found “to be not credible on other issues.”  Subsequently, the district court awarded attorney fees in the amount of $49,247.15 to March and $22,913.98 to Ramsey County for a total award of $72,161.13.

            Premature Award of Attorney Fees

            Crockarell maintains that the district court erred in granting these fees because of the language found in Minn. Stat. § 518.14, subd. 2(a) (2000): “the arrearages must be a docketed judgment.”  This subdivision, however, addresses only a support obligor’s entitlement to payment for the costs of collecting child support under certain circumstances.  Here, the district court awarded attorney fees under Minn. Stat. § 518.14, subd. 1; its discretionary power to award fees.  Under these circumstances, compliance with Minn. Stat. § 518.14, subd. 2, was not required.

            Award in Excess of Statutory Maximum

            Crockarell makes the same mistake in his claim that the district court exceeded the statutory maximum in its grant of attorney fees.  He finds this authority in the following language: “[t]he fees and costs may not exceed 30 percent of the arrearages.”  Minn. Stat. § 518.14, subd. 2(d).  However, this limitation is applicable only to the fees and costs incurred in the course of enforcing a support judgment.  The proper standard provides for fees and costs “in an amount necessary to enable a party to carry on or contest the proceeding.” Minn. Stat. § 518.14, subd. 1.  Because the district court’s extensive findings satisfy this standard, we find that the award was within its discretion.

            Award of Duplicative Attorney Fees

            Crockarell argues that the district court abused its discretion in awarding attorney fees to Ramsey County because the work done by the county attorney was duplicative of that done by March’s counsel.  He cites no statutory prohibition on such an award, but depends on this court’s holding in Kennedy v. Kennedy, 376 N.W.2d 702 (Minn. App. 1985).  However, Kennedy stands for the proposition that a duplication of work by successive attorneys working for the same party forms a reasonable basis for an obligor’s objection to the amount of attorney fees.  Id. at 705.  Because Crockarell has made no objection to the necessity of Ramsey County’s involvement in this case, there is no reason for this court to find that the district court abused its discretion in awarding attorney fees to both March and Ramsey County.

            Award of Attorney Fees for the Interlocutory Appeal

            Crockarell argues that the district court abused its discretion by awarding fees incurred during the interlocutory appeal.  See Vern Reynolds Const., Inc. v. Champlin, 539 N.W.2d 614, 619 (Minn. App. 1995) (absent statutory provision, appellate court proper court to determine award of attorney fees on appeal).  Minnesota law provides that “the court shall award attorney fees * * * in an amount necessary to enable a party to carry on or contest the proceeding.”^[2]  Minn. Stat. § 518.14, subd. 1 (emphasis added).  The legislature also authorizes “additional fees” to be awarded “against a party who unreasonably contributes to the length or expense of the proceeding.”  Id.  This language clearly authorizes the district court to award fees for interlocutory appeals.  Because the district court found the interlocutory appeal to be “meritless,” its award of attorney fees for that appeal was within its discretion. 

            Conversion of Attorney Fees to Child Support

             Crockarell contends that the district court abused its discretion in converting the attorney fees to an additional judgment for child support.  While the district court does not cite the source of its authority to convert the award, Crockarell points to Minn. Stat. § 518.14, subd. 2(e), which provides for such a conversion where an obligor has failed to request a hearing after receiving notice of entry of judgment under section 518.14, subd. 2(a). As previously discussed, however, Minn. Stat. § 518.14, subd. 2, does not apply to the circumstances of this judgment or the attorney fees awarded therein.  Therefore, the district court abused its discretion in converting the award of attorney fees to an additional judgment for child support, and we reverse this finding.

            Affirmed in part and reversed in part.