Filed August 15, 2006

Affirmed; motions denied

Randall, Judge

Concurring specially, Lansing, Judge

Hennepin County District Court

File No. DC 244896

A. Larry Katz, Katz, Manka, Teplinsky, Due & Sobol, LTD., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)

Michael L. Perlman, Karin Gjerset, Perlman Law Office, Woodside Office Park, 10520 Wayzata Boulevard, Minnetonka, MN 55305 (for appellant)

Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Randall, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

On appeal in this child-support modification dispute, appellant-father argues that the record does not support the finding that the parties knew of the child’s medical condition when they negotiated the stipulated child-support provisions in their dissolution judgment. We affirm.

FACTS

Appellant-husband Amir Eftekhari and respondent-wife Mina Chaharsooghi were married in July 1987. The parties had two children during the marriage, R.E. born on May 26, 1988, and O.E. born on August 18, 1994. In September 2001, the parties’ marriage was dissolved. Under the terms of the dissolution decree, the parties were awarded joint legal and physical custody of the children. The judgment also stated that appellant had a gross monthly income of $6,250 and that respondent had a gross monthly income of $2,340. The parties stipulated to the amount of child support in the decree pursuant to the Valento formula for joint physical custody. Based on the stipulation, appellant’s child support obligation was set at $592 per month.

The dissolution decree also mandated that appellant pay all premiums for the children’s medical insurance. Under the terms of the decree, appellant was to pay all of R.E.’s uninsured or unreimbursed medical and dental expenses, all orthodontia expenses for both children, and all expenses for tutoring through Sylvan Learning Center for both of the parties’ children. In addition, the decree ordered that appellant and respondent equally share the costs of O.E.’s uninsured or unreimbursed medical and dental expenses. The judgment further states that appellant and respondent agreed to apportion the costs of “extracurricular, recreational or other activities that the children participate in which bear a cost to the parties’ between them if both parties agree to the child/children’s participation in said activity.” Finally, the decree provides that if the parties do not agree on the child/children’s participation in any given activity, the party enrolling the child/children in the activity shall bear the full cost of the activity.

In October 2003, R.E. was hospitalized for severe depression and suicidal ideation. After his discharge from psychiatric hospitalization, R.E. lived at the Children’s Residential Treatment Center for seven months of follow-up therapy. While R.E. was in residential treatment, appellant sought the services of a consultant to recommend a facility that would continue R.E.’s education, while also addressing his psychiatric and emotional condition and his learning disability. Although respondent initially objected to sending R.E. out-of-state, she eventually agreed to send R.E. to Vermont to attend a specialized boarding school because the school was highly recommended and because appellant agreed to fully bear the extensive costs.

In March 2005, appellant moved to reduce his child support obligation and modify the terms of the decree such that respondent would be ordered to be responsible for one-half of the extraordinary expenses that appellant now incurs for both parties’ children. Appellant claimed that his extraordinary expenses for R.E. include the costs of boarding school, travel associated with out-of-state schooling, health and psychiatric care, summer camp, and a cell phone. Appellant claimed that extraordinary expenses justifying modification of child support and expense-sharing for O.E. include the cost of health insurance, educational tutoring, piano, ski and martial arts lessons, and summer camp.

The child support magistrate denied appellant’s motion to modify his child support obligation, finding that appellant had failed to meet the burden of proof required to show a change in circumstances rendering his current obligation unfair and unreasonable such that the modification was justified. Appellant subsequently moved for district court review of the magistrate’s decision. The district court affirmed the magistrate’s decision in its entirety, concluding that the magistrate’s order was supported by the record and not made contrary to law. This appeal followed.

After appellant filed his notice of appeal, both parties made cross-motions for attorney fees. By order from this court, the decision on the motion for attorney fees was deferred until consideration of the appeal on the merits.

D E C I S I O N

A child support obligation may be modified upon a showing of increased or decreased earnings of a party, increased needs of a child, or extraordinary medical expenses of a child that render the existing obligation unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (2004). The moving party has the burden of proof in support modification proceedings. Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002). A district court has broad discretion in determining whether t o modify child support orders, and a reviewing court will reverse only if the district court “abused its broad discretion by making a clearly erroneous conclusion that is against the logic and the facts on [the] record.” Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999) (quotation omitted).

A stipulation may be considered in child support cases because “it represents the parties’ acquiescence in a settlement.” McNattin v. McNattin, 450 N.W.2d 169, 171 (Minn. App. 1990). But the existence of a stipulation does not “bar . . . later consideration of whether a change in circumstances warrants a modification.” Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). Where child support is concerned, Minnesota caselaw indicates that “[a]lthough a stipulation is one factor to be considered in modification motions, child support ‘relates to nonbargainable interests of children and is less subject to restraint by stipulation than are other dissolution matters.’” Martin v. Martin, 401 N.W.2d 107, 110 (Minn. App. 1987) (quoting Maxson v. Derence, 384 N.W.2d 583, 585 (Minn. App. 1986)).

Here, appellant argues that the district court abused its discretion by denying his motion to modify his child support obligation. In support of his claim, appellant contends that since the divorce, he has incurred extraordinary medical and education expenses in connection with R.E.’s treatment. Appellant asserts that these expenses include: (1) the $47,000 cost of tuition of the special boarding school located in Vermont that R.E. attends; (2) payment of more than $35,000 for the cost of R.E.’s treatment at the Children’s Residential Treatment Center; and (3) various expenses he has incurred concerning O.E. and R.E.’s educational and medical needs and recreational activities. Appellant argues that the extraordinary medical and educational expenses constitute a substantial change in circumstances rendering the terms of his current child support obligation unreasonable and unfair. Thus, appellant argues that he has met his burden of proof that his child support obligation should be modified and that respondent should pay one-half of the extraordinary medical and educational expenses of the parties’ minor children.

The original dissolution decree states that:

Any medical or dental expenses, other than orthodontia, that are not covered by insurance incurred for the benefit of [O.E] shall be paid one-half by each party. Any medical or dental expenses that are not covered by insurance for the benefit of [R.E.] shall be paid solely by [appellant]. Any uninsured orthodontia expenses incurred for the benefit of either child shall be paid by [appellant].

Any extracurricular, recreational, or other activities that the children participate in which bear a cost to the parties shall be paid by the party who enrolls the child in the particular activity, if the parties do not agree on the child’s participation in the activity. If the parties agree on the child’s participation in an activity, the parties shall pay for the activity as they mutually agree at the time. By way of example only, activities contemplated herein shall include summer camps, sports, field trips, after-school programs, and the like, but not Sylvan Learning Center expenses, for which [appellant] shall be solely liable.

Based on this language, and its finding that (1) the parties were cognizant of R.E.’s learning disabilities at the time of the decree; and (2) that respondent did not acquiesce to R.E. being sent to the Vermont school, the magistrate denied appellant’s request to modify his child support obligation.

Appellant argues that the record does not support the finding that the parties knew of R.E.’s medical condition when they negotiated the stipulated child-support provisions in their dissolution judgment. We disagree. The record reflects that in 1996, R.E. was referred for evaluation due to concerns regarding difficulty following directions, need for instructions to be repeated, poor school performance, fine motor difficulties, and occasional staring events. The record also reflects that in 1997, R.E. received therapy for sensory integration, fine motor deficits, and speech/language deficits. The diagnoses at that time included neuron-sensory processing dysfunction, motor planning impairment, and fine motor impairment. The record further reflects that in 1998 and 2001, R.E. was referred for a psychoeducational evaluation. Therefore, we conclude that the record supports the finding that the parties were sufficiently cognizant of R.E.’s disabilities at the time of the dissolution that the expenses associated with these disabilities were not unforeseen.

Appellant concedes R.E. was receiving occupational therapy for his neurosensory processing disorder before the dissolution. But appellant contends that the great majority of extraordinary educational expenses are related to R.E.’s nonverbal learning disability that was not diagnosed until two years after the parties’ marriage was dissolved.

Appellant’s argument is unsupported by the record. The record reflects that R.E. received outpatient psychotherapy in 1998 for a severe nonverbal learning disability, indicating that the parties were aware of R.E.’s nonverbal learning disability at the time of the dissolution. Moreover, appellant’s affidavit dated February 8, 1999, admits that R.E. is a “‘special needs child,” and that R.E. attends “occupational therapy services twice a week.” Although appellant seeks modification of his child support obligation on the basis of extraordinary medical and educational expenses associated with an allegedly “recently” diagnosed learning disorder, the reality is that the parties were aware of R.E.’s special needs at the time of dissolution. The parties were also cognizant of the financial issues concerning R.E.’s disabilities at the time of the dissolution, and appellant agreed to be responsible for all of R.E.’s uninsured or unreimbursed medical expenses and the costs of R.E.’s tutoring through Sylvan Learning Center. Consequently, the record supports the finding that the parties knew of R.E.’s medical condition when they negotiated the stipulated child-support provisions in their dissolution judgment.

Under the terms of the dissolution decree, appellant is liable for all unreimbursed medical expenses for R.E. and for all expenses relating to any activity that R.E. was enrolled in by appellant that was not mutually agreed upon. There is nothing in the record indicating that enrolling R.E. in the Vermont school was a necessity, and the record supports the finding that respondent reluctantly acquiesced to R.E. being sent to the school.

Equity lies with appellant. Respondent’s affluent lifestyle makes it abundantly clear that her $26,000 salary is just window dressing. She has virtually unlimited funds for vacations, an expensive lifestyle, and is supported by her overseas relatives to a point where it does not appear she is denied anything. However, the record does not disclose that the stipulation was improvident or that either party was misled as to the financial resources of the other. The record does not support an inference that R.E.’s condition caught either party by surprise following the dissolution. It would be fair for respondent to contribute more than she has to. We note the basic law of bringing up children. Both parents are responsible. See Jevning v. Cichos, 499 N.W.2d 515, 516 (Minn. App. 1993) (noting that parents are generally financially responsible for their children); see also State ex. rel. Miller v. Miller, 446 N.W.2d 199, 200 (Minn. App. 1989) (stating that parents are primarily responsible for supporting their children). Having said that, we cannot conclude the district court made any errors of law or abused its discretion in coming to the decision it did.

II.

On appeal, both parties made cross-motions for attorney fees. “The award of attorney fees on appeal rests within the broad discretion of the appellate court.” Van Vickle v. C.W. Scheurer & Sons, Inc., 556 N.W.2d 238, 242 (Minn. App. 1996), review denied (Minn. Mar 18, 1997).

Respondent made a marginal motion for attorney fees on appeal based on “need.” Appellant rightfully points out that respondent has “no need.” The district court found that both parties had the resources to pay their own at the trial level. We do likewise at the appellate level.

Appellant has made a motion for bad-faith attorney fees based on his claim that respondent’s request for need-based attorney fees was frivolous. See Minn. Stat. § 518.14, subd. 1 (2004) (stating that a court may award, in its discretion, fees against a party who unreasonably contributes to the length or expense of proceeding). We have fully agreed with appellant’s opposition to respondent’s request for need-based attorney fees, but that does not mean that her request was frivolous per se. The record shows her salary is $26,000 per year and alludes to “other income.” The “other income” is out there and that is not in dispute, but there is nothing in the record to substantiate amounts and frequency. Thus, although we deny respondent’s motion for need-based attorney fees on appeal, the record does not support a finding of such bad faith on respondent’s part that
appellant is now entitled to bad-faith attorney fees for having to successfully defend against her request.

Affirmed; motions denied.

LANSING, Judge (concurring specially)

I concur in the determination that the district court did not abuse its discretion by denying a modification of child support. The record establishes that the children’s medical and educational expenses were known to both parents when they negotiated the stipulated child-support provisions that were incorporated into their dissolution judgment. Consequently these expenses, although significant, do not constitute a change in circumstances that makes the current child-support obligation unreasonable or unfair.