Denae Larson, petitioner, Appellant, vs. Owen Neil Larson, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

Denae Larson, petitioner,

Appellant,

vs.

Owen Neil Larson,

Respondent.

Affirmed

Polk County District Court

File No. F994230

Shirley A. Dvorak, Moosbrugger, Dvorak & Carter, P.L.L.P., 311 South Fourth Street, Suite 101, Grand Forks, ND 58201 (for appellant)

Scott D. Jensen, Camrud, Maddock, Olson & Larson, Ltd., 401 DeMers Avenue, Suite 500, P.O. Box 5849, Grand Forks, ND 58206-5849 (for respondent)

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Denae Larson challenges the district court's denial of her motion to have respondent Owen Larson found in civil contempt of court for failure to make timely payments of child support and alleges the district court abused its discretion by not implementing income withholding under Minn. Stat. § 518.6111, subd. 3 (1998).  We affirm.

            The district court has broad discretion to hold an individual in contempt. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986); see also Minn. Stat. § 518.24 (1998) (stating that the district court "may" cite the obligor for contempt).  But the district court may only hold an individual in contempt where the individual has acted "‘contumaciously, in bad faith, and out of disrespect for the judicial process.'"  Erickson, 385 N.W.2d at 304 (quotation omitted).  Minnesota courts have statutory authority to enforce maintenance and child support obligations using civil contempt proceedings.  Engelby v. Engelby, 479 N.W.2d 424, 426 (Minn. App. 1992).  A child support order constitutes prima facie evidence that the obligor has the ability to pay the award and if the obligor disobeys, it is prima facie evidence of contempt.  Minn. Stat. § 518.24.  Once prima facie evidence of contempt is established, it is the obligor's burden to prove inability to comply with the order.  Engelby, 479 N.W.2d at 426.

I.

            Appellant argues that respondent should be held in contempt for failure to make his child support payments in a timely manner.  The support order provides that respondent's monthly child support obligation "is to commence on the 1st of March, 1996 and continue each month thereafter until further order of the Court."  Appellant cites evidence that respondent paid his May 1999 child support on June 6, 1999, and his June 1999 child support on June 28, 1999.

Even if these irregular payments constitute prima facie evidence of contempt, we cannot say the district court abused its discretion by not holding respondent in contempt because:  (1) respondent is not in arrears; and (2) the district court found that respondent's income is irregular because he is self-employed in the agriculture business.  Moreover, as noted by the district court, respondent's late payment is partially due to the Department of Human Services' billing process.  Respondent receives a monthly notice from the Department of Human Services of his obligation to pay and then remits his payment to the payment center.  The district court found that the notification process allows payment to be made any time during the month and that often the notices are not received until at least the 8th of the month.  The district court found that respondent was making a good faith effort to comply with the order and denied appellant's motion.  We defer to such credibility determinations.  Whalen v. Whalen, 594 N.W.2d 277, 282 (Minn. App. 1999).

II.

Appellant also argues that the district court abused its discretion because it did not address her oral motion to have child support paid automatically from respondent's checking account.  Whether an oral motion is properly before the district court is largely left to the district court's "sound discretion."  Stern v. Dill, 442 N.W.2d 322, 325 (Minn. 1989).  We conclude the district court did not abuse its discretion in not addressing appellant's motion.  Appellant's motion was made merely as an aside during the hearing on the contempt motion and further, the income withholding statute requires a written notice.  See Minn. Stat. § 518.6111, subd. 7 (Supp. 1999).

III.

Appellant requests that this court remand to the district court for an award of attorney fees.  A child support obligee may obtain attorney fees incurred in prosecution of an obligor's contempt.  Minn. Stat. § 588.11 (1998); In re Marriage of Nelson, 408 N.W.2d 618, 622 (Minn. App. 1987).  But in light of our decision here and the facts of this case, particularly the district court's determination as to respondent's good faith, we reject appellant's request to remand for attorney fees.

            Respondent also requests an award of attorney fees contending that this appeal is frivolous.  Attorney fees may be awarded in dissolution cases where an appeal was frivolous or made in bad faith.  Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691-92 (Minn. App. 1989), review denied (Minn. June 21, 1989).  But attorney fees will not be awarded where the parties' arguments are colorable.  See Kitchar v. Kitchar, 553 N.W.2d 97, 104 (Minn. App. 1996) (denying award of attorney fees where "both parties presented colorable legal arguments on difficult issues"), review denied (Minn. Oct. 29, 1996).  Here, appellant had a colorable argument that respondent was not complying with the terms of the court order by making irregular payments.  We therefore deny respondent's request for attorney fees.

            Affirmed.

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