In Re the Marriage of: Mary J. Wagner, f/k/a Mary J. Bulau, petitioner, Respondent, vs. Douglas D. Bulau, Appellant. C8-97-1390, Court of Appeals Unpublished, March 31, 1998.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-97-1390

In Re the Marriage of:

Mary J. Wagner, f/k/a Mary J. Bulau, petitioner,

Respondent,

vs.

Douglas D. Bulau,

Appellant.

Filed March 31, 1998

Affirmed

Kalitowski, Judge

McLeod County District Court

File No. F08922256

Terrence E. Conkel, Jeanne M.V. Conkel, Gavin, Olson, Conkel & Savre, Ltd., 1017 Hennepin Avenue, Glencoe, MN 55336 (for respondent)

Julie Wacker Hanjani, Palmer, Hanjani, Barkley, Barley & Emmer, 105 Second Avenue Southwest, Hutchinson, MN 55350 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Foley, Judge.^*

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

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

KALITOWSKI, Judge

In this appeal from an order increasing the support obligation of appellant Douglas Bulau to the guideline level, Bulau claims the district court erred by: (1) denying his motion for a new trial; (2) setting his support obligation without applying the cross-support formula; and (3) awarding respondent Mary J. Wagner attorney fees. We affirm.

D E C I S I O N

The district court did not abuse its discretion by denying Bulau's motion for a new trial. See Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App. 1991) (in post-decree motion to modify, there is no "trial" and "new trial" motions are unauthorized).

II.

Bulau contends he raised a claim for cross-support under Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985) in his motion for amended findings. However, raising a new claim or theory in a motion for amended findings is improper. See Allen v. Central Motors Co., 204 Minn. 295, 299, 283 N.W. 490, 492 (1939) (issue raised "too late" when first raised in motion for amended findings); see also Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (in considering motion for amended findings, trial court "may neither go outside the record, nor consider new evidence").

Further, Bulau previously stipulated that the reaching of age 20 by one of his children from a prior marriage would be a basis for alleging changed circumstances for purposes of modifying support. Also, at the original hearing on the motion to modify support, Bulau stated he was not seeking cross-support under Hortis. Because one of Bulau's children of a prior marriage had reached age 20, we conclude the district court did not abuse its discretion by modifying his support obligation without reference to the Hortis formula. See Minn. Stat. § 518.64, subd. 2 (1996) (support may be modified on a showing of, among other things, changed circumstances); Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (district court has broad discretion in deciding whether to modify support and will not be reversed absent a clearly erroneous conclusion that is against logic and the facts on record); Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988) (where support is below guideline amount, degree of change in circumstances required to satisfy modification statute is limited).

III.

The order denying Bulau's post-hearing motion awarded Wagner attorney fees because of the burden Bulau's post-hearing motion put on Wagner. See Minn. Stat. § 518.14, subd. 1 (1996) (court "may" award fees against a party unreasonably contributing to proceeding's length or expense); Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (whether to award conduct-based attorney fees is discretionary with the district court). Bulau claims the district court should not have awarded Wagner attorney fees because he had a right to bring his motion for a new trial under rule 59.01. As discussed above, we disagree. Further, although Bulau had a right to move for amended findings, it was not appropriate for him to argue for cross-support in a motion for amended findings after stating in the original proceeding that he was not seeking cross-support. We thus conclude the district court did not abuse its discretion in determining Bulau contributed to the proceeding's length and expense. Finally, we reject Bulau's argument regarding the district court's failure to determine his ability to pay the attorney fees. An analysis of ability to pay is not required for a conduct-based attorney fee award. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) (stating a fee award under Minn. Stat. § 518.14 may be based on the conduct of a party "regardless of the relative financial resources of the parties").

Affirmed.