In Re the Matter of: Violet Ann Frisch, Respondent, vs. Frank Joseph Solchaga, Appellant.

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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C4-99-1083

In Re the Matter of:

Violet Ann Frisch,
Respondent,

vs.

Frank Joseph Solchaga,
Appellant.

Filed January 11, 1999
Affirmed
Amundson, Judge

Washington County District Court
File No. F5-97-51370

Lisa M. Amundson, Dudley and Smith, P.A., 2602 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for respondent)

Frank J. Solchaga, 500 Quinlan Avenue North, Lakeland, MN 55043 (pro se appellant)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

AMUNDSON, Judge

Appellant challenges the district court's order for past child support and award of attorney fees to respondent. Additionally, appellant contends that an award of attorney fees to respondent for this appeal is improper. We affirm.

FACTS

Violet Frisch and Frank Solchaga are the parents of A.S., born July 25, 1984. The parties never married, but lived together with A.S. until 1994, when Frisch and A.S. moved to another residence.

On July 21, 1997, Frisch initiated a paternity action against Solchaga, requesting sole legal and physical custody, past and ongoing child support, and attorney fees. On August 28, 1998, a partial stipulation and order was filed with the district court regarding legal and physical custody and visitation of A.S.

The district court calculated Solchaga's net monthly income to be $1,756 and found that he had income from four sources: (1) pension; (2) social security income; (3) contract for deed; and (4) rental income. Applying the Minnesota Child Support Guidelines to Solchaga's income, the district court found that his monthly child support obligation was $439.

A.S. receives $539 per month as a social security benefit due to Solchaga's retirement. A.S. began receiving these benefits in February 1997. Due to these payments, the district court found that Solchaga had no continuing child support obligation, but did order past child support. The district court found that Frisch's monthly income was $2,031.64 and that she had $3,100 in monthly expenses for herself and A.S.

D E C I S I O N

"On appeal from a judgment where there has been no motion for new trial, the only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law." Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989). Here, Solchaga did not make a motion for a new trial, but only filed a notice of appeal; thus our review is limited to whether the district court's order is supported by the record.

Solchaga contends that the district court erred when it ordered him to pay past child support in the amount of $10,536 for the twenty-four months preceding Frisch's commencement of this paternity action. The amount ordered by the district court is equivalent to Solchaga paying $439 per month from July 1995 to July 1997.

The statute that allows an order of past child support to be entered provides in pertinent part:

The court shall limit the parent's liability for past support of the child to the proportion of the expenses that the court deems just, which were incurred in the two years immediately preceding the commencement of the action.

Minn. Stat. § 257.66, subd. 4 (1998). A past support determination by a district court is reviewed for abuse of discretion. McNeal v. Swain, 477 N.W.2d 531, 533-34 (Minn. App. 1991). "When determining what amount of past support is just, a court must consider the earnings, needs and resources of the obligor, obligee and child." Id. at 534 (citing Rieck v. Lambert, 396 N.W.2d 269, 271 (Minn. App. 1986). Additionally, when formulating a past support award a court must make particularized findings.Rieck, 396 N.W.2d at 271.

The district court made specific findings regarding the resources and needs of all involved. The district court found that Solchaga failed to produce any evidence regarding his current or past living expenses and that his income for the two years prior to the commencement of the action was similar to his present income. The court found that Frisch's and A.S.'s expenses for the past two years were similar to their current expenses.

Solchaga argues that the district court erred when it failed to offset his child support obligations for the months between February and October 1997, because the child received a monthly retirement insurance benefit for those months.

In 1998, the Minnesota legislature amended the statute governing maintenance and support payments to address the manner in which a child's receipt of such insurance benefits affects an obligor's support obligation. Minn. Stat. § 518.551, subd. 5(l) (1998) provides:

In establishing or modifying child support, if a child receives a child's insurance benefit under United States Code, title 42, section 402, because the obligor is entitled to old age or disability insurance benefits, the amount of support ordered shall be offset by the amount of the child's benefit. The court shall make findings regarding the obligor's income from all sources, the child support amount calculated under this section, the amount of the child's benefit, and the obligor's child support obligation. Any benefit received by the child in a given month in excess of the child support obligation shall not be treated as an arrearage payment or a future payment.

Appellant argues that the district court erroneously neglected to offset the child support order for the months when the child was receiving an insurance benefit. However, the statute that mandates that an obligor's support obligation be offset by any retirement insurance benefit was not in effect until 1998. Additionally, Holmberg v. Holmberg, which stands, in part, for the proposition that a credit against a support obligation for benefits paid on behalf of a child should be allowed, was also decided in 1998. Holmberg v. Holmberg, 578 N.W.2d 817, 826-27 (Minn. App. 1998), aff'd on other grounds 588 N.W.2d 720 (Minn. 1999). Thus, while Solchaga's argument may have been meritorious for any past child support obligation ordered for months after the statutes effective date of August 1, 1998, it is not for the amounts calculated for 1997.

Solchaga argues that the district court incorrectly calculated his income. However, Minn. Stat. § 518.54, subd. 6, (1998), provides that "income" includes wages, pension and disability benefits and any other form of periodic payment. Solchaga relies on documents that were not before the district court to support his contention. The district court noted that Solchaga failed to present evidence of his income. Therefore, the district court did not abuse its discretion when calculating Solchaga's income for the purpose of calculating his obligation of past child support. See Taflin v. Taflin, 366 N.W.2d 315, 319 (Minn. App. 1985) (party "cannot complain" where party's failure to provide documentation results in a denial of party's motion).

"Generally, the award for attorney fees [based on Minn. Stat. § 518.14] lies in the discretion of the court." Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). An award of attorney fees will not be upset absent an abuse of discretion. Bogen v. Bogen, 261 N.W.2d 606, 611 (Minn. 1977). Minn. Stat. § 518.14 (1998) provides that attorney fees may be awarded where the court finds:

(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Nothing in this section precludes the court from awarding, in its discretion, additional fees, costs, and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.

An attorney fee award may be based on the impact of a party's behavior on the costs of litigation regardless of relative financial resources of parties. Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991).

Here, the record reflects that Solchaga unreasonably contributed to the length and expense of the lower court proceedings by requesting continuances, changing counsel four times, and refusing to follow court orders. The district court found that Solchaga was responsible for causing numerous delays, was uncooperative, and therefore caused unnecessary expenses for Frisch. Furthermore, the court found that Solchaga was financially able to pay for the award of attorney fees for Frisch. Accordingly, the district court ordered that Solchaga pay attorney fees in the sum of $12,000.

While Solchaga repeatedly alleges that Frisch and her attorney engaged in delay tactics, he failed to point to any evidence in the record that supports such an allegation. Thus, the district court's award of attorney fees to Frisch does not amount to an abuse of discretion.

Minn. R. Civ. App. P. 139.06 states in pertinent part:

A party seeking attorneys' fees on appeal shall submit such a request by motion under Rule 127. The court may grant on its own motion an award of reasonable attorneys' fees to any party. * * * All motions for fees must include sufficient documentation to enable the appellate court to determine the appropriate amount of fees.

Here, Frisch did not file a motion for attorney fees, but rather inserted a request in her brief that she be awarded $1,000 for costs and fees that she has incurred in responding to Solchaga's appeal. Because Frisch failed to make a motion to this court for an award of attorney fees on appeal, we need not consider her request.

Finally, respondent contends that portions of the appellant's brief should be stricken, as they are not part of the district court's record. "An appellate court cannot base its decision on matters outside the record on appeal and any matters not part of the record must be stricken."Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987). Thus, we will not consider any evidence beyond the record and such evidence is accordingly stricken from the record.

Affirmed.