This opinion will be unpublished and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

C7-97-2384

In Re the Marriage of:

Barbara J. Hoganson, petitioner,

Respondent,

vs.

Mark Stephen Bryant,

Appellant.

Filed June 9, 1998

Affirmed; motion denied

Holtan, Judge*

Hennepin County District Court

File No. 145665

Karim El-Ghazzawy, El-Ghazzawy Law Office, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondent)

Theo. Wangensteen, Jr., 2225 Holly Lane, Plymouth, MN 55447 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals 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

HOLTAN, Judge

Appellant contends that the district court erred in modifying the stipulated judgment and decree, ordering him to pay child support arrearages, and in awarding respondent attorney fees. Respondent alleges that the district court erred in not imputing appellant's income, allowing appellant to claim unreasonable automobile expenses, reserving the issue of daycare, and in awarding $1,000 in attorney fees. Respondent made a motion for attorney fees on appeal. We affirm and deny the motion for attorney fees.

FACTS

On May 31, 1988, the parties were divorced pursuant to a judgment and decree. They had one son, T.S.B., born February 9, 1986. Respondent Barbara Hoganson was granted sole physical and joint legal custody of T.S.B. Appellant Mark Bryant had child support payments of $550 per month. The parties stipulated to an amended judgment and decree on May 21, 1990, that reduced Bryant's support payments to $250 per month plus an additional 25% per month if his income exceeded $1,000 per month. However, if Bryant's income were less than $1,000 per month, he would be entitled to a credit for the following month in the amount he overpaid the previous month. The parties were ordered to provide each other with their tax returns on an annual basis.

Between 1990 and 1996, Bryant's net income significantly varied. Bryant paid the base amount of child support, including cost of living adjustments, when he earned less than $1,000 per month. He also paid the base amount when he earned more than $1,000 per month, but he did not pay the agreed upon additional 25% of income beyond $1,000 per month. Bryant remarried and his spouse contributed to his financial obligations. Neither party provided the other with annual tax returns.

In November 1996, respondent filed a motion to modify child support. The district court determined that the amended child support provision was no longer equitable, the provision should not receive prospective application, and that the parties did not exchange their tax returns. Further, the district court ordered Bryant to pay arrearages for 1991. After a two-day evidentiary hearing, the district court awarded additional arrearages to Hoganson for 1994 and 1995.

D E C I S I O N

It is well established that the decision to modify a child support order lies in the broad and sound discretion of the trial court, and an appellate court will reverse for an abuse of that discretion only where it finds a "clearly erroneous conclusion that is against logic and the facts on record."

Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (quoting Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984)). "Because child support relates to children's nonbargainable interests, it is less restricted by stipulation than other dissolution matters." Polk County Social Servs. ex rel. Hagen v. Clinton, 459 N.W.2d 362, 365 (Minn. App. 1990). The district court has broad discretion in child support matters. Nazar v. Nazar, 505 N.W.2d 628, 633 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).

I. Child Support Modification & Arrearages

Bryant contends that the trial court erred in awarding child support arrearages because, in effect, he is penalized for overpaying child support when he earned less than $1,000 but still paid the base monthly payment. We disagree. First, we note that the amended judgment and decree provided that "each party shall" provide the other with their annual tax returns. Thus, Bryant's compliance with the court order is not in any way dependent or contingent upon Hoganson's compliance. Accordingly, Bryant cannot justify his failure to provide his tax returns to Hoganson with her failure to provide him with her tax returns. Without providing Hoganson with his tax returns or otherwise informing her of his income, Bryant alone knew how much he was earning and, thus, what his child support payments should be. Moreover, Bryant did not take any steps, formally or informally, to "claim" his overpayment credit. Further, at oral argument, Bryant's counsel informed the court that Bryant did not have a specific date on which he proposed to tally his overpayments and underpayments. Bryant claims that it is inequitable to require him to pay arrearages because he was not given credit for his overpayments. We disagree because he failed to provide his tax returns to Hoganson, failed to claim overpayments for more than five years, had no plan to claim the overpayments, and their son did not receive the benefits of additional child support when Bryant earned more than $1,000 per month. We cannot say the district court abused its wide discretion in ordering arrearages.

II. Imputing Appellant's Income

Hoganson claims that the district court erred in failing to impute Bryant's income because he was voluntarily underemployed and because his lifestyle and ability to pay is not reflected in his current child support obligation. See Minn. Stat. §518.551, subd. 5b(d) (1996) (providing guidelines for imputation of income). We disagree. Here, the district court found that (1) Bryant's financial success in 1994 and 1995 was unusual and atypical; (2) Bryant's explanation of that success was credible; (3) the financial planning business has changed, resulting in a negative impact on Bryant's earnings; (4) Bryant believed that his income would increase and if it did not he would seek other employment; (5) Bryant's spouse pays for most of the household expenses; (6) Bryant's spouse has paid for some of Bryant's personal and business expenses; (7) Bryant's lifestyle did not accurately reflect his income; and (8) Bryant can earn significantly more than he does now but that he should be given a "reasonable time" to increase his business, and if it does not, he "is expected * * * to seek other employment." Moreover, the record shows that the district court (1) considered Bryant's lifestyle in determining that the proposed child support obligation was reasonable; (2) ordered that Bryant submit his tax returns to Hoganson; and (3) stated that if he does not, upon Hoganson's motion, Bryant's income will be imputed. Given these findings, the district court properly declined to impute Bryant's income at this point.

Next, Hoganson argues that the district court erred in allowing Bryant to claim as exempt for child support purposes certain automobile deductions, which greatly exceeded his child support obligation. We disagree. Here, the district court found that (1) Bryant's lease or debt payments for his vehicles always were greater than his child support payments; (2) Bryant believed he needed certain vehicles to give the impression that he was successful; (3) Bryant needed a vehicle for business; and (4) in 1994 Bryant's income supported his transportation expenses, and that in 1995, if vehicle expenses were reduced and taxes deducted, his arrearage would not likely be greater than if, as he reasonably and equitably proposed, child support was determined from his gross profit without deducting taxes. Given these findings, the district court did not abuse its discretion in not reducing Bryant's auto expenses in order to increase child support.

III. Child's Daycare & Tutoring Expenses

Hoganson asserts that the district court erred in reserving the issue of daycare and in failing to order Bryant to pay some portion of the tutoring expenses. We disagree. Here, the record demonstrates that the district court considered Bryant's lifestyle, his wife's contribution to Bryant's support, the child's needs, and the fact that Bryant's proposed child support payments exceeded the amount required by the guidelines. Given the district court's comprehensive assessment of the parties' situations and the district court's superior position to make these fact-specific determinations, we cannot say that the district court abused its discretion.

IV. Attorney Fees

Bryant argues that the trial court's award of $1,000 in attorney fees to Hoganson was improper because Hoganson did not exchange her tax returns and because the district court failed to make the necessary findings to support the award. Hoganson argues that the district court should have awarded $7,000 in attorney fees. We disagree. The decision to award attorney fees is "within the trial court's discretion and its decision will not be disturbed absent an abuse of that discretion." Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996). Here, in awarding $1,000 in fees to Hoganson, the trial court stated:

As [Bryant failed] to provide his income information to [Hoganson] for many years, resulting in litigation, [Bryant] should contribute $1000.00 to [Hoganson's] attorney's fees.

Further, the record shows that the district court examined the parties' financial situations. Under these circumstances, the district court acted within its discretion in awarding attorney fees. See Minn. Stat. § 518.14, subd. 1 (1996) (stating the district court has discretion in awarding additional fees "against a party who unreasonably contributes to the length or expense of the proceeding"); Dobrin v. Dobrin, 555 N.W.2d 921, 925-26 (Minn. App. 1996) (upholding attorney fees award where district court generally discussed economic situations of parties), rev'd on other grounds, 569 N.W.2d 199, 203 (Minn. 1997).

Hoganson also requests this court award $5,100 in attorney fees for the costs of the appeal. We deny the motion. This court may award attorney fees on appeal if the arguments are frivolous or asserted in bad faith. Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991); see also Minn. Stat. § 518.14, subd. 1 (listing factors necessary to justify award of fees); Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996) (applying Minn. Stat. § 518.14 to determine whether attorney fees for purposes of appeal are warranted). Here, Hoganson states that Bryant's appeal has "unduly contributed to the costs of this litigation," but does not present the necessary basis under statutory law or legal precedent for this court to award attorney fees. Thus, her motion is denied.

Affirmed; motion denied.