This opinion will be unpublished and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

C4-97-1838

In Re the Matter of:

Kelli J. Cunningham, petitioner,

Olmsted County,

Appellant,

vs.

Eric A. Salata,

Respondent.

Filed April 7, 1998

Affirmed in part, reversed in part, and remanded;

motions for attorney fees denied.

Short, Judge

Olmsted County District Court

File No. FX961502

Jill I. Frieders, Terence L. Maus, O'Brien, Ehrick, Wolf, Deaner & Maus, L.L.P., 206 South Broadway, 611 Marquette Bank Building, P.O. Box 968, Rochester, MN 55903-0968 (for petitioner)

Raymond F. Schmitz, Olmsted County Attorney, Julie S. Voigt, Assistant County Attorney, Government Center, 151 Fourth Street, S.E., Rochester, MN 55904 (for appellant)

Lawrence Downing, Lawrence Downing & Associates, 330 Norwest Center, 21 First Street, S.W., Rochester, MN 55902 (for respondent)

Considered and decided by Amundson, Presiding Judge, Short, Judge, and Mansur, Judge.[*]

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

SHORT, Judge

This dispute arises out of an administrative law judge's (ALJ) order, establishing Eric A. Salata's child support obligation. In June 1997, Salata filed a motion in the trial court requesting modification of the child support order, change in custody and in the alternative, increased visitation. On appeal from the trial court's modification of child support pursuant to Minn. Stat. § 518.64, subd. 2 (1996), the county argues the trial court: (1) erred in finding a change in circumstances warranting modification; (2) abused its discretion in failing to award attorney fees; and in the alternative, (3) failed to address the requisite statutory criteria in its modification of support and failed to issue written findings to support a deviation from the child support guidelines. Salata argues the trial court erred in: (1) calculating his educational debt for purposes of the modification; (2) failing to grant an evidentiary hearing on his request for a custody change; and in the alternative, (3) denying his request for

expanded visitation rights. Both parties request attorney fees on appeal. We affirm in part, reverse in part, remand, and deny attorney fees.

D E C I S I O N

A trial court has broad discretion in deciding matters of child support, custody, and visitation, and we will uphold a trial court's determination of those issues absent an abuse of discretion. See Ayers v. Ayers, 508 N.W.2d 515, 518 (Minn. 1993) (custody determination); Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (child support); Manthei v. Manthei, 268 N.W.2d 45, 45-46 (Minn. 1978) (visitation). However, the trial court must exercise its discretion within statutory limits. Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986). We will not set aside a trial court's factual findings unless clearly erroneous. Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

I.

Generally, a child support order may be modified upon a showing of substantially increased or decreased earnings or needs, which makes the terms of the existing order unreasonable and unfair. See Minn. Stat. § 518.64, subd. 2(a) (1996) (providing grounds for modification). However, a trial court should modify a child support order with great caution, only upon a clear showing that the circumstances of the parties are markedly different from those in existence when the decree was rendered, and within statutory limits. See Moylan, 384 N.W.2d at 864 (concluding discretion must be exercised within statutory limits); Anderson v. Anderson, 450 N.W.2d 384, 386 (Minn. App. 1990) (concluding modification based on clear showing of change in circumstances).

The county argues the trial court erred in modifying the child support obligation because Salata failed to establish a change in circumstances since the issuance of the ALJ's order. We agree. It is undisputed: (1) Salata requested a modification of his child support obligation less than one year after the ALJ's order; (2) the ALJ's child support order was based on limited information because Salata refused to provide the ALJ with evidence of his debts; (3) the only debts Salata offered to support his request for modification were the debts known to him at the time of the initial hearing; and (4) the trial court based its modification on those debts. Given these facts, Salata failed to prove a clear change in circumstances warranting modification. See Kuronen v. Kuronen, 499 N.W.2d 51, 53 (Minn. App. 1993) (concluding movant must show substantial change of circumstances making existing terms of order unreasonable and unfair), review denied (Minn. June 22, 1993); see, e.g., Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (concluding obligor "cannot complain" where his failure to provide adequate documentation led, in part, to court's refusal to modify decree); Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (concluding trial court did not abuse discretion in maintaining current child support when father failed to submit adequate financial documentation).

Salata argues his pursuit of a jurisdictional challenge[1] justifies his failure to submit the required documents to the ALJ, entitles him to ignore the ALJ's order, and allows him to submit these documents to the trial court as evidence of a change in circumstances. However, we decline to reward Salata for failing to submit the necessary documentation, and contributing to the length of the proceeding by shopping for a more "favorable" forum in which to establish his child support obligation. See Sundell v. Sundell, 396 N.W.2d 89, 91 (Minn. App. 1986) (affording trial courts wide latitude in fashioning child support orders when an obligor has not submitted adequate documentation of income), review denied (Minn. Jan. 16, 1987). To permit such conduct would harm the very child Salata acknowledges he has a duty to support. See Schaefer v. Weber, 567 N.W.2d 29, 33 (Minn. 1997) (recognizing strong state policy of assuring children have adequate and timely economic support of their parents). Under these circumstances, we conclude the trial court erred in finding Salata's previously undisclosed debts warranted a modification in child support. Although we conclude Salata may not offer debts that were due at the time of the ALJ's hearing, the trial court may consider debts that became due subsequent to the hearing in modifying Salata's child support obligation. See Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn. App. 1991) (concluding when considering change of circumstances appropriate to examine changes since most recent order and to use most recent order as base for measuring those changes). Because the trial court failed to distinguish between the debts due at the time of the hearing and those due subsequent to the hearing, we must remand for further proceedings consistent with this opinion. Furthermore, we need not reach either party's arguments regarding the calculation of the modified amount because we reverse the trial court's modification of child support.

The county also argues the trial court abused its discretion in failing to award attorney fees because Salata's modification motion was an attempt to relitigate the ALJ's order. However, a trial court is not required to award attorney fees. See, e.g., Nardini v. Nardini, 414 N.W.2d 184, 199 (Minn. 1987) (concluding failure to award attorney fees was not abuse of discretion). Thus, we cannot say the trial court's denial of the county's motion for attorney fees constitutes an abuse of its broad discretion.

II.

Salata argues the trial court erred in failing to grant an evidentiary hearing on his request for a custody change and in denying his request for expanded visitation rights. See Minn. Stat. § 518.18(c) (1996) (providing custody modification may be entered within one year of entry of prior decree if court has reason to believe child's present environment may endanger child's physical or emotional health); Minn. Stat. § 518.175, subd. 5 (1996) (providing court shall modify visitation order whenever modification would serve best interests of child). However, the trial court found: (1) Salata brought his motion for a custody change less than one year after entry of the custody order; (2) Salata's supporting affidavit made only bare allegations of endangerment, with only specific allegations of past endangerment; (3) the original custody order was negotiated and stipulated to by the parties, and adopted by the court; (4) the current visitation schedule provides for substantial visitation that increases in amount and decreases in restrictions as the child grows older; (5) the best interests of the two-year-old child are served by the current visitation schedule; and (6) Salata's proposed schedule would not further the best interests of the child any more than the current visitation schedule. After a careful review of the record, we conclude ample evidence supports these findings. Under these circumstances, the trial court did not abuse its discretion in denying modification of the visitation or custody order, and in denying Salata's request for an evidentiary hearing. See Hansen v. Hansen, 284 Minn. 1, 5, 169 N.W.2d 12, 14 (1969) (holding appellate courts will be slow to interfere with trial court's ruling in custody matters absent arbitrary action); Abbott v. Abbott, 481 N.W.2d 864, 868 (Minn. App. 1992) (concluding decision to grant evidentiary hearing in custody modification proceeding is discretionary with trial court); see, e.g., Rutten, 347 N.W.2d at 51 (holding trial court was in far better position to establish visitation schedule for 5-year-old and 6-year-old children).

Both parties request attorney fees on appeal. Because we conclude this appeal was not frivolous or brought in bad faith, we decline to award either party attorney fees. See Minn. Stat. § 518.14 (1996) (providing criteria for award of attorney fees on appeal).

Affirmed in part, reversed in part, and remanded; motions for attorney fees denied.

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

[ ]1 The merits of Salata's jurisdictional challenge are not before us because on a previous appeal we concluded the issue was untimely, and the Minnesota Supreme Court denied Salata's petition for review. In re Cunningham v. Salata, No. C5-97-133 (Minn. App. Feb. 18, 1997), review denied, (Minn. Apr. 24, 1997).