In re the Marriage of: James Richard Huntsman, petitioner, Appellant, vs. Zenith Annette Huntsman, f/k/a Zenith Annette Morgan, Respondent. A05-2168, Court of Appeals Unpublished, September 26, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2168

In re the Marriage of:

James Richard Huntsman, petitioner,

Appellant,

vs.

Zenith Annette Huntsman,

f/k/a Zenith Annette Morgan,

Respondent.

Filed September 26, 2006

Affirmed

Lansing, Judge

Washington County District Court

File No. F7-98-2231

James R. Huntsman, 2570 Moundsview Drive, Mounds View, MN 55112 (pro se appellant)

Brad C. Eggen, Law Offices of Brad C. Eggen, 1100 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Klaphake, Presiding Judge; Lansing, Judge; and Minge, Judge.

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

LANSING, Judge

In this appeal from judgment following remand in a child-support and spousal-maintenance proceeding, James Huntsman raises five issues. He contends that the district court failed to comply with this court’s remand instructions; erred by denying his motions to reopen the record to reconsider his child-support and maintenance obligations; and abused its discretion by ordering him to pay attorneys’ fees, releasing funds held on deposit, and maintaining the supersedeas bond at its current amount. Because the district court properly complied with the remand directions, correctly applied the law, reasonably exercised its discretion, and relied on facts supported by the record, we affirm.

F A C T S

James and Zenith (Annette) Huntsman dissolved their marriage in January 2000. They stipulated that Annette Huntsman would have sole physical custody of their minor child but were unable to agree on issues relating to child support and spousal maintenance. Following a contested hearing, the district court established James Huntsman’s child-support obligation and ordered on-going spousal maintenance with an increased amount for a two-year period, which would allow Annette Huntsman to complete an educational program that would enhance her employment prospects. Because this appeal builds on several years of litigation and multiple earlier appeals related to child support and spousal maintenance, the facts essential to its resolution are enmeshed with the facts of the full course of the Huntsmans’ litigation.

James Huntsman first appealed from the district court’s September 2000 amended dissolution judgment setting his support obligations. We affirmed the district court’s support determinations, but remanded “for a clear calculation of [James Huntsman’s] net income.” Huntsman v. Huntsman, No. C1-00-19236, 2002 WL 556142, at *1, *4 (Minn. App. Apr. 16, 2002) (Huntsman II), review denied (Minn. June 26, 2002); see also Huntsman v. Huntsman, 633 N.W.2d 852, 856 (Minn. 2001) (Huntsman I) (reversing court of appeals’ determination that appeal was untimely and reinstating appeal). Before we issued our decision in Huntsman II, James Huntsman moved the district court to vacate its amended dissolution order. The district court denied the motion and ordered him to pay Annette Huntsman conduct-based attorneys’ fees. We affirmed. Huntsman v. Huntsman, No. C9-02-85, 2002 WL 2005472, *3 (Minn. App. Sept. 3, 2002) (Huntsman III), review denied (Minn. Nov. 19, 2002).

On April 2, 2002, James Huntsman received notice that 3M was terminating his position as a senior intellectual-property specialist. He had the option to work until ninety days after the notice, through June 2002, but chose to end his employment in mid-May, after only forty-five days. On April 29, before his employment ended, he moved to reduce his support obligations based on a substantial change of circumstances. The district court considered his motion along with the issues remanded in Huntsman II. In April 2003 the district court recalculated James Huntsman’s net income, upheld a cost-of-living adjustment to his support obligations, upheld income-withholding from his unemployment benefits, and found that James Huntsman was voluntarily underemployed.

The district court amended its order in June 2003 to reflect the total amounts James Huntsman owed Annette Huntsman, because few of the maintenance and support obligations had been honored. In December 2002 and February 2004 the court ordered attachment and seized James Huntsman’s 3M severance payments as security for these obligations. The district court also entered judgment on the 2003 orders in February 2004, and ordered James Huntsman to pay conduct-based attorneys’ fees and reimburse Annette Huntsman for costs incurred to respond to frivolous motions. James Huntsman appealed.

In November 2004 we affirmed the district court’s denial of James Huntsman’s motion to modify, affirmed the validity of the district court’s attachment orders, and affirmed its calculation of income for child support. Huntsman v. Huntsman, No. A04-286, 2004 WL 2710044 (Minn. App. Nov. 30, 2004) (Huntsman IV), review denied (Minn. Feb. 23, 2005). We noted, however, that the district court neglected to deduct the cost of Annette Huntsman’s health-insurance premium when calculating his net income for purposes of spousal maintenance. Id. at *6.

We also affirmed the district court’s determination that James Huntsman had not demonstrated that a substantial change in circumstances made his existing maintenance obligation unfair. We noted, however, that because James Huntsman received a severance package following his employment termination in April 2002 and his severance income was included as income in determining his maintenance and support obligations, the case would be subject to automatic review one year from his final paycheck. Id. at *7. We held that James Huntsman could demonstrate a substantial change of circumstances if, despite good-faith efforts, he had not found a comparable job by April 2003. Id. Because the district court had previously ordered attachment of his severance payments, we further remanded “for a clear determination of how [James Huntsman’s] severance package was distributed.” Id. at *8. We held that, if the funds were used to pay arrearages, James Huntsman was entitled to a downward calculation of child support. Id. But if the funds were held in trust for periodic payment, the severance pay was properly included in his income. Id.

Following our decision in Huntsman IV, James Huntsman moved in June 2005 for partial release of his supersedeas bond and to compel discovery. The district court denied the motion to compel discovery in July 2005 and reserved the remaining issues. Annette Huntsman moved in July 2005 for the district court to address the remanded issues, and the district court scheduled a hearing for August 12, 2005. On August 3, James Huntsman moved to reopen the record, to reduce or suspend his child-support and spousal-maintenance obligations retroactively to April 2002, to find that Annette Huntsman was voluntarily underemployed and had a substantial increase in her finances, to find that he had consistently made good-faith efforts toward reemployment, and to find that he had overpaid his insurance-premium obligation to Annette Huntsman.

In September 2005 the district court amended its February 2004 judgment to reflect its findings on remand. The district court found that its previous calculation of James Huntsman’s income was correct and expressly stated that it had deducted the health-insurance payment to calculate his net income. The court further found that, after a thorough review of the record, its previous determinations of his maintenance and support obligations remained fair and reasonable. The district court denied James Huntsman’s motions as untimely and alternatively found that the motions lacked a legal and factual basis. The court made findings under Minn. Stat. § 518.14 (2004) and ordered James Huntsman to pay Annette Huntsman attorneys’ fees based on motions James Huntsman filed in 2002 and 2003, and also ordered him to pay attorneys’ fees that Annette Huntsman incurred in responding to his 2005 motions. Finally, the district court directed the court administrator to release the funds on deposit to Annette Huntsman. The order provided that any residual balance would remain on deposit and be released monthly to Annette Huntsman.

James Huntsman now appeals from the district court’s September 2005 orders, challenging the district court’s determinations on remand, its denial of his August 3 motions as untimely, its imposition of attorneys’ fees, and its denial of his motion to return part of the supersedeas bond that he posted in Huntsman II. In January 2006 James Huntsman moved this court to order Washington County to return to him the money held as security and distributed to Annette Huntsman. We denied this motion in a special-term order. Huntsman v. Huntsman, A05-2168 (Minn. App. Feb. 7, 2006). As part of this appeal, James Huntsman also argues that the special-term order was in error.

D E C I S I O N

On remand a district court must faithfully follow the mandate of the remanding appellate court. Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982). In Huntsman IV we directed the district court to recalculate James Huntsman’s net income for purposes of maintenance, to review whether James Huntsman demonstrated good-faith efforts to find reemployment in the year following the termination of his 3M employment, and to clarify the status of James Huntsman’s severance payments that were deposited as security for his maintenance and support obligations. We review a district court’s factual findings for clear error. Minn. R. Civ. P. 52.01.

To determine net income, the costs of health-insurance coverage should be deducted from an obligor’s gross income. Minn. Stat. § 518.551, subd. 5(b) (2004). On remand the district court clarified that it had deducted the cost of Annette Huntsman’s health-insurance coverage when it calculated James Huntsman’s net monthly income. James Huntsman is now challenging the duration of his obligation to provide health-insurance coverage. But this is a new issue that could have been raised earlier and was not. James Huntsman did not raise it in his earlier motions or appeals, it is outside the scope of this court’s remand order, and his untimely motion following remand does not preserve it for appeal. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (holding that appellate court will not review issues not properly presented to district court). Furthermore, to the extent that James Huntsman attempts to raise the issue through references to arguments in earlier district court orders or judgments, that attempt has been precluded by a special-term order expressly dismissing these portions of his appeal. Huntsman v. Huntsman, No. A05-2168 (Minn. App. Nov. 2, 2005) (dismissing arguments appealed from 2000, 2003, or 2004 orders and judgments).

James Huntsman next challenges the district court’s determination on remand that he did not make good-faith efforts to find reemployment. James Huntsman’s employment involuntarily terminated in May 2002. Although his severance payment of approximately $93,800 was divided into two payments distributed in 2003 and 2004, we held that the severance payments should be viewed as one year of income covering the twelve months after his 3M employment ended. Huntsman IV, 2004 WL 2710044, at *7. We therefore directed the district court to examine on remand whether James Huntsman had demonstrated that, despite good-faith efforts, he was unable to find employment one year from his last 3M payment. Id.

An obligor’s unjustifiable limitation of income will not suspend a maintenance and support obligation. Fulmer v. Fulmer, 594 N.W.2d 210, 213 (Minn. App. 1999) (providing for imputation of income when it is unjustifiably self-limited). To evaluate whether unemployment or underemployment is in good faith, a court should consider an individual’s ability to work, the availability of gainful employment, the individual’s willingness to provide for dependents, and the individual’s efforts to seek employment. Garcia v. Garcia, 415 N.W.2d 702, 705 (Minn. App. 1987). A court will not reward a lack of reasonable effort. See Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (affirming district court’s decision to impute income when obligor did not exercise reasonable efforts).

James Huntsman has a Ph.D. in physical chemistry, has an M.B.A. in management, has completed one year of law school, and is a licensed patent agent with the U.S. Patent and Trademark Office. He chose to leave his company six weeks earlier than required, foregoing nearly $11,000 in income. At the time of a December 2002 deposition, James Huntsman was still unemployed and testified that he did not anticipate finding employment in the next three months. He testified that, after he received his termination notice, he sent a letter to “all the major intellectual property law firms in the Twin Cities.” He regularly “perused” newspaper want ads, but did not inquire about any intellectual property positions outside of law firms. He never met with the 3M human-resources manager to examine employment opportunities within 3M and he also told this manager that he intended to go on deferred retirement. In August 2002 James Huntsman enrolled in a paralegal program at a community college. He testified that his “prime objective” was to finish the two-year program and obtain an intellectual property paralegal position. Huntsman had a six-figure salary at 3M; his 2002 tax returns reflect an adjusted gross income of nearly $180,000. He expected his starting salary as a paralegal would be between $40,000 and $50,000. In October 2002 he temporarily stopped filing for unemployment benefits because he objected to income withholding. Huntsman did not work until July 2003 when he accepted a temporary job, paying $14 an hour, doing document production at a law firm. Based on James Huntsman’s minimal efforts to find employment within his areas of specialization and his sudden pursuit of a career that pays significantly less than his established earning capacity, the district court’s finding that he remained voluntarily underemployed in mid-2003 is not clearly erroneous.

James Huntsman argues that the district court exceeded the scope of remand by ordering him to pay interest on his overdue maintenance and child-support obligations. But his responsibility for interest is not a discretionary directive from the district court; it is statutorily based. See Minn. Stat. § 549.09, subd. 2 (2004) (stating that unpaid balance stemming from judgment accrues interest from time judgment is entered).

Finally, we directed the district court to clarify the distribution of the severance payments subject to the district court’s attachment orders. The district court added findings that the amount held as security, approximately $100,000, had not been distributed. The court ordered a prompt distribution of funds to Annette Huntsman, with the remaining balance kept on deposit with the court for monthly distributions to Annette Huntsman. The district court complied with each of this court’s directives in Huntsman IV.

Nine days before the hearing scheduled to address the remanded issues, James Huntsman filed a motion to reopen the entire record. Including his motion and supporting documents, he presented the court with nearly 400 pages of material and sought modification of his maintenance and support obligations dating back to 2002. The district court denied the motions as untimely and further held that James Huntsman’s motions lacked a legal and factual basis. The law and the record support the district court’s decisions.

James Huntsman and Annette Huntsman dispute which court rule governs the timeliness of James Huntsman’s August 2005 motion. The Minnesota General Rules of Practice for the District Courts provide that motions in family court proceedings are governed by rule 303. Minn. R. Gen. Pract. 301 (stating that family law matters are governed by rules 301 through 313). Rule 303.03 requires a moving party to serve and file motion papers at least fourteen days before a hearing. Id. 303.03(a)(1). A responding party that raises issues other than those raised in the initial motion must serve and file motion papers at least ten days before the hearing. Id. 303(a)(2). If the responding party addresses only the issues raised in the initial motion, filing is required five days before the hearing. Id. 303.03(a)(3).

Because the motion related to a remand, we conclude that subpart (a)(1) of rule 303, rather than subpart (a)(2), governs the time computation. Of the eight issues raised in his August 3 motions, only James Huntsman’s request to find that he made good-faith efforts to secure reemployment is responsive to Annette Huntsman’s motion to address the remanded issues. The remaining issues were wholly unrelated to this court’s opinion in Huntsman IV. Instead, James Huntsman sought to reopen the record and substantially amend the district court’s previous findings. The district court therefore properly denied his motions as untimely. But even if we were to apply the more generous time provisions in rule 303.03(a)(2), James Huntsman’s motion was still untimely because he did not file his motion papers with the district court until August 3, the day after he served his motions on Annette Huntsman. The rules governing motion practice plainly require a moving party to serve the opposing party and file with the district court within the prescribed time limits.

And, even if the court had applied no time limit, the result would have been the same. The record supports the district court’s conclusion that James Huntsman provided no legal or factual basis that would justify his motions to reopen the record and reevaluate all of the district court’s previous findings related to his maintenance and support obligations. Refusal to reopen a record is reviewed for an abuse of discretion. Bolander v. Bolander, 703 N.W.2d 529, 553 (Minn. App. 2005), review dismissed (Minn. Oct. 28, 2005). James Huntsman sought a redetermination of his maintenance and support obligations dating back to 2002 and of his continuing maintenance obligation. The appropriateness of his obligations through mid-2003 have already been determined, challenged, and affirmed on appeal. Huntsman IV, 2004 WL 2710044; Huntsman II, 2002 WL 556142. The sole issue remanded in Huntsman IV that related to a change in James Huntsman’s financial circumstances focused only on whether he could demonstrate a substantial change in circumstances in mid-2003, one year after his employment at 3M ended. Consideration of his maintenance and support obligations before mid-2003 is therefore inappropriate. See In re Trust Created by Hill, 499 N.W.2d 475, 484 (Minn. App. 1993) (holding that party may not relitigate issues identical to those on which final judgment has been entered and party had opportunity to be heard), review denied (Minn. July 15, 1993); see also Huntsman v. Huntsman, No. A05-2168 (Minn. App. Nov. 2, 2005) (specifically dismissing James Huntsman’s claims appealed from orders and judgments entered in 2000, 2003, and 2004).

Although James Huntsman contends that his current income is insufficient to continue the pre-2003 amounts, he did not provide the district court with documentation of his income after 2002. Hence, the district court did not have any information indicating a substantial change in James Huntsman’s financial circumstances. See Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002) (holding that moving party has burden to provide district court with financial information to enable accurate determination of income); Spooner v. Spooner, 410 N.W.2d 412, 413 (Minn. App. 1987) (stating that failure to supply financial information justifies adverse inferences).

James Huntsman also argues that his maintenance obligation should be reduced because Annette Huntsman’s income has substantially increased, she has been voluntarily unemployed or underemployed, and because she did not obtain the teaching credentials that she had identified as a goal during the dissolution proceeding. This argument is flawed for two reasons. First, Annette Huntsman supplied the district court with her current financial records, and the documents do not indicate a substantial change in circumstances. Her tax returns indicate her income in 2004 was approximately $20,000, which does not approach the standard of living established during the Huntsmans’ marriage. See Peterka v. Peterka, 675 N.W.2d 353, 358 (Minn. App. 2004) (“The purpose of a maintenance award is to allow the recipient and the obligor to have a standard of living that approximates the marital standard of living, as closely as is equitable under the circumstances.”). Second, in 2000 the district court directed James Huntsman to pay, in addition to spousal maintenance, $500 a month for two years so Annette Huntsman might fulfill her education plans. James Huntsman, who has not complied in any way with this order, now argues that Annette Huntsman should not receive maintenance because she failed to fulfill her educational plans and is underemployed. Exclusive of interest and attorneys’ fees, he owes Annette Huntsman nearly $95,000 in maintenance and child support. Having failed to supply what may be critical financial support, James Huntsman cannot credibly argue that Annette Huntsman’s inability to obtain the necessary education for her teaching certification should be a basis for reducing his maintenance obligation. The record amply supports the district court’s conclusion that, even if James Huntsman had filed timely motions, the record and the applicable law would not support his requests to reopen the record to reduce or eliminate his support obligations.

III

A district court may order attorneys’ fees based either on a party’s need or on another party’s conduct. Minn. Stat. § 518.14, subd. 1 (2004). To impose attorneys’ fees based on need, the court must find that the fees are necessary for the good-faith assertion of rights; the recipient does not have the means to pay the fees; and the party who is ordered to pay the fees does have the means. Id. Alternatively, a court may order attorneys’ fees when a party “unreasonably contributes to the length and expense of the proceeding.” Id. The district court has broad discretion to impose attorneys’ fees, and, absent an abuse of this discretion, we will not reverse an attorneys’ fees order. Geske v. Marcolina, 642 N.W.2d 62, 71 (Minn. App. 2002).

James Huntsman first contests the order requiring him to pay need-based attorneys’ fees related to motions he made in 2002 and 2003 after we reversed the order for conduct-based fees in Huntsman IV. The district court did not abuse its discretion by ordering him on remand to pay the need-based attorneys’ fees. Annette Huntsman initially moved for attorneys’ fees in May 2003. Because the February 2004 order for attorneys’ fees was based on conduct, the court did not address whether the need-based requirements of section 518.14 were satisfied. Consideration of the alternative basis on remand is permissible because the remand is equivalent to a continuation of the original proceeding. McClelland v. Pierce, 376 N.W.2d 217, 220 (Minn. 1985). The district court made findings on each of the criteria for ordering need-based fees. The district court is familiar with the parties, the history of the case, and their relative financial situations. The district court therefore did not abuse its discretion by ordering James Huntsman to pay attorneys’ fees. See Geske, 642 N.W.2d at 71 (affirming need-based attorneys’ fees when court was familiar with parties’ financial history).

James Huntsman next challenges the district court’s imposition of attorneys’ fees based on his June and August 2005 motions. Before the district court addressed the remanded issues, which would determine James Huntsman’s maintenance and support obligations and the extent of his arrearages, James Huntsman moved to release the funds deposited with the court as security for these payments. He then moved to reopen the record and essentially relitigate a wide range of issues. The record supports the district court’s findings that James Huntsman’s first motion was premature and that his second motion was unreasonable. The district court concluded that it was unreasonable not only because it was untimely, but because the motion alleged a change in financial circumstances, without providing “basic tax return evidence” or other documentation of his income. By requiring Annette Huntsman to respond to these motions, James Huntsman unreasonably contributed to the length and expense of the proceedings. The district court’s order requiring James Huntsman to pay the $2,440 Annette Huntsman incurred in responding to the motions was not an abuse of discretion.

The appellate rules do not provide for a rehearing in the Minnesota Court of Appeals. Minn. R. Civ. App. P. 140.01. Consequently James Huntsman may not, in his reply brief, revive his arguments for the return of the deposited funds that have been distributed; this court’s February 2006 determination that these arguments may not be revisited bars reconsideration on appeal.

Furthermore, the special-term order was decided correctly. James Huntsman asserts that he could not have asked the district court to return the funds because the supersedeas bond he posted in January 2006 stayed the district court’s jurisdiction over the case. But the rules of appellate procedure specifically provide that the district court “retains jurisdiction as to matters independent of, supplemental to, or collateral to the order or judgment appealed from, and to enforce its order or judgment.” Id. 108. James Huntsman’s appropriate recourse was therefore to move the district court for return of the funds. See Thiele, 425 N.W.2d at 582-83 (holding that appellate court will not consider matters not presented to district court).

The purpose of a supersedeas bond is to assure that, pending a resolution on appeal, the party that prevailed in the district court does not bear the economic risk of the appeal. County of Blue Earth v. Wingen, 684 N.W.2d 919, 923 (Minn. App. 2004). James Huntsman argues that the district court erred by denying his June 2005 motion because he was entitled to release of part of his bond following Huntsman II. Huntsman’s argument is unpersuasive because the present appeal is a continuation of Huntsman II, and a final resolution of the issues had not been reached at the time of his motion. The total amount of his obligation to Annette Huntsman, then spanning five and one-half years, had not been determined, and he had not been paying maintenance or child-support in the interim. His persistent refusal to comply with the district court’s orders provides a reasonable basis for the district court to continue the bond as an assurance that Annette Huntsman will not continue to bear the economic risk of the recurrent appeals.

Affirmed.