Glynn's Northeast Electric, Inc., Appellant, vs. Linn Slattengren, 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This opinion will be unpublished and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

C0-99-2036

 

 

In Re the Marriage of:

Barbara Ann Bistram, petitioner,

Respondent,

 

vs.

 

Gary Martin Bistram,

Appellant.

 

 

Filed May 16, 2000 Affirmed; motion to strike granted in part; motion for fees denied Halbrooks, Judge

 

Ramsey County District Court

File No. F8-91-1095

 

 

Stuart E. Gale, 101 Elder-Jones Building, 9301 Bryant Avenue South, Bloomington, MN 55402 (for respondent)

 

Alan C. Eidsness, Kristi L. Skordahl, Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for appellant)

 

 

 

            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court's order modifying his child-support obligation.  Because (1) the district court did not err in concluding that a substantial change in circumstances has occurred; (2) the district court did not improperly fail to consider the parties' stipulation; and (3) the respondent was not entitled to attorney fees, we affirm.  Respondent's motion to strike is granted in part; appellant's motion for fees on appeal is denied.

FACTS

            Appellant Gary Bistram and respondent Barbara Bistram were married on August 7, 1976.  They had two children during their marriage.  A.R.B. was born on March 19, 1979, and B.M.B. was born on November 28, 1981.  Respondent filed a petition for dissolution on April 23, 1991.  The parties' marriage dissolution was finalized on January 8, 1993, by a judgment and decree.

            The decree incorporated the significant provisions of the marital termination agreement signed by the parties on December 11, 1992.  Specifically, it incorporated the parties' stipulation regarding child support.  The stipulation required appellant to pay child support of $300 per month until B.M.B. emancipated.  This amount was a 66% downward departure from the child-support guidelines.  It also required appellant to pay one-half of the medical expenses and one-half of the children's private school tuition. 

The parties acknowledged in the stipulation that appellant's child-support obligation was below the statutory guideline amount.  It provided that the basis for the downward deviation was appellant's payment of the private school tuition and the extended visitation granted to appellant in the summers.

            Beginning in September 1994, the parties' children began living with appellant for substantial periods of time.  In September 1994, B.M.B. moved in with appellant and began living with him on a full-time basis.  In September 1996, A.R.B. also moved in with appellant.  After December 1996, the children moved back and forth between the parties' homes with some frequency.

Appellant stopped paying regular child support to respondent in October 1996.  Between October 1996 and June 1997, when A.R.B. became emancipated, appellant paid child support only during the months when both minor children were living with respondent.  After A.R.B. became emancipated, appellant only paid child support when B.M.B. was living with respondent for more than one-half of the month.  This adjustment in child-support payments was made without seeking court approval.

In September 1997, appellant received notification from the Ramsey County Attorney's office that respondent had requested that the county commence automatic income withholding to collect child-support arrearages that she alleged had accrued since October 1996.  In response, appellant brought a motion to modify the parties' custody and child-support arrangements.  He also requested a finding that his child-support obligation had been satisfied because one or both of the children had been residing with him with the consent of respondent when support payments were not made.

On December 22, 1997, the district court issued an order reserving all issues pending mediation and ordered appellant to continue paying child support in the amount of $300 per month.  A subsequent order was filed on May 17, 1999.  It ordered appellant to pay $798.25 for arrears accrued through October 1997 and reserved the issue of child-support modification for another hearing.  That hearing was held on July 1, 1999, and an order granting respondent's motion to modify child support was filed on September 21, 1999. 

In the September 21, 1999 order, the court made findings regarding the parties' incomes and expenses.  It found that the statutory presumption of a substantial change in circumstances existed because the guidelines support amount under the current circumstances was 20% higher and more than $50 greater than the existing order.  Minn. Stat. § 518.64, subd. 2(b) (Supp. 1999).  Appellant's child-support obligation was modified to $808.95 per month, i.e., the amount provided for by the child-support guidelines for an obligor with a net monthly income of $3,235.81 and one minor child.  Minn. Stat. § 518.551, subd. 5 (Supp. 1999).  This modification was made retroactive to November 15, 1997.  See Minn. Stat. § 518.64, subd. 2(d) (Supp. 1999) (providing that the court may order retroactive modification to the date the modification motion is served).  The court denied respondent's motion for attorney fees and appellant's motion for a finding that he had satisfied his child-support obligation while the children lived with him.

Appellant filed a notice of appeal challenging the district court's order modifying his child-support obligation.  He contends that there is no evidence to support the court's conclusion that a substantial change in circumstances occurred.  Respondent filed a notice of review relative to the district court's denial of her motion for attorney fees.  Following the briefing, respondent filed a motion in this court to strike portions of appellant's reply brief and appendix.  Appellant has also filed a motion for attorney fees on appeal.

D E C I S I O N

1.         Motion to strike

            Respondent filed a motion to strike portions of appellant's reply brief arguing that three sections of the reply brief were not "confined to new matter raised in the brief of respondent."  Minn. R. Civ. App. P. 128.02, subd. 3.  We agree with respondent that section II of appellant's reply brief simply restates arguments set forth in his initial brief.  On the other hand, sections III and IV of the reply brief properly address arguments made by respondent in her brief that were neither waived nor argued in appellant's initial brief.  Further, all of the documents in the appendix to the reply brief are contained in the district court record, and are, therefore, properly before this court.  See Minn. R. Civ. App. P. 110.01.  We grant respondent's motion in part and order that section II of the reply brief be stricken.

2.         Child-support modification

A.        Change in circumstances

The modification of a child-support obligation is reviewed under an abuse of discretion standard.  Rouland v. Thorson, 542 N.W.2d 681, 683 (Minn. App. 1996).  A district court can modify a child-support obligation when the party seeking the modification establishes that a substantial change in circumstances has occurred.  Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996).  A substantial change in circumstances is presumed, and the existing order is rebuttably presumed to be unreasonable and unfair, when the moving party establishes that

the application of the child support guidelines in section 518.551, subdivision 5, to the current circumstances of the parties results in a calculated court order that is at least 20 percent and at least $50 per month higher or lower than the current support order.

 

Minn. Stat. § 518.64, subd. 2(b)(1) (Supp. 1999). 

            In this case, the district court found that a substantial change in circumstances had been demonstrated based on the statutory presumption.  Appellant contends that the district court misapplied the statute, but he cites no caselaw to support his argument and ignores the plain meaning of the statutory language. 

The "current support order" at the time of the motion was $300 per month.  The district court made the findings necessary to establish "the current circumstances of the parties."  The district court found that appellant's current monthly net income was $3,235.81.  This results in a guidelines support obligation of $808.95 per month.  This is more than $50 and more than 20% greater than the "current support order" of $300.  Therefore, the statutory presumption of a substantial change in circumstances is met in this case.

            The district court modified appellant's obligation based on the statutory child-support guidelines.  "The guidelines in this subdivision are a rebuttable presumption and shall be used in all cases when establishing or modifying child support."  Minn. Stat. § 518.551, subd. 5(i) (Supp. 1999).  Because the district court correctly concluded that the statutory presumption of a substantial change in circumstances had been met and modified appellant's support obligation based on the guidelines, the only remaining question is whether appellant rebutted the presumption in favor of guideline support. 

            Appellant contends that the district court erred by not enforcing the parties' original stipulation.  Although not set forth as an argument to rebut the statutory presumption against finding a substantial change in circumstances, it does directly challenge the appropriateness of deviating from the parties' stipulation.  Appellant contends that there has not been a significant change in the parties' actual circumstances and that failure to enforce the stipulation will discourage the use of stipulations in future family law cases.

            When a district court is considering a motion to modify the rights or obligations fixed by a stipulation, it must "appreciate that the stipulation represents the parties' voluntary acquiescence in an equitable settlement."  Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).  But "a stipulation is only a factor considered in modification motions."  Miller v. Miller, 415 N.W.2d 920, 923 (Minn. App. 1987) (citation omitted).  It is axiomatic in family law that a child's interest in child support cannot be bargained away by that child's parents.  Kaiser v. Kaiser, 290 Minn. 173, 180, 186 N.W.2d 678, 683 (1971).  Further, this court has previously held that almost any change in circumstances will be considered substantial if the stipulated child-support payment is significantly below the guideline amount.  See Murray v. Murray, 425 N.W.2d 315, 317 (Minn. App. 1988) (affirming modification when obligor's income increased and stipulated child support was "well below" the guidelines); Compart v. Compart, 417 N.W.2d 658, 662 (Minn. App. 1988) (reversing denial of motion to modify child support when stipulated amount was more than 50% below the guidelines, obligor father's income had increased by four percent, mother's income had decreased, and mother's expenses had increased). 

In this case, the modification is based on appellant's 11% increase in his net income and on the disparity between what the appellant is paying, i.e., $300 per month, and what he has the ability to pay.  See Minn. Stat. § 518.551, subd. 5(c)(3) (Supp. 1999) (providing that in setting support the court shall consider the standard of living that the child would have enjoyed had the marriage not been dissolved); Desrosier v. Desrosier, 551 N.W.2d 507, 509 (Minn. App. 1996) (same).  Appellant presented no evidence that he is unable to pay guideline support. 

The modification is also based on the increased needs of the remaining child.  See Johnson v. Johnson, 533 N.W.2d 859, 865 (Minn. App. 1995) (holding that "[i]n determining whether the statutory presumption has been rebutted, the court must evaluate and make findings regarding custodial parent's circumstances, the obligor's circumstances, and those of the children").  The district court found that the current expenses attributable to the parties' remaining minor child exceed the expenses respondent claimed existed when both children were minors. 

Notwithstanding the existence of the stipulation, appellant failed to rebut the presumption of change in circumstances and the presumption in favor of guideline support.  The district court did not abuse its discretion in finding a substantial change in circumstances and modifying appellant's child-support obligation to the guideline amount. 

B.        Retroactivity

Appellant also contends that even if the modification was appropriate, the district court's decision to make it retroactive to November 1997 was an abuse of discretion.  The district court has broad discretion to set the effective date of a support modification.  Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997).  "A modification of support or maintenance * * * may be made retroactive * * * from the date of service of notice of the motion on the responding party * * * ."  Minn. Stat. § 518.64, subd. 2(d) (Supp. 1999). 

Respondent has been required to support the parties' child for nearly two years without receiving all of the assistance she was entitled to from appellant.  For this reason, we do not consider the back support now owed to respondent to be a windfall.  The district court did not abuse its discretion in making the modification retroactive to the time when the motion was filed. 

3.         Attorney fees

Respondent challenges the district court's refusal to grant her attorney fees.  An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (1998) "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987).  The district court did not abuse its discretion in refusing to award attorney fees.  There was no showing by respondent below that she lacked the ability to pay her own fees in order to assert her rights.  See Minn. Stat. § 518.14, subd. 1 (providing that generally a party seeking fees must not have the means to pay the fees requested).  Further, it does not appear that appellant "unreasonably contribute[d] to the length or expense of the proceeding," which is the basis for awarding fees regardless of need.  Id.

Appellant has moved this court for an award of attorney fees on appeal.[1]  Appellant contends that respondent's "unseemly and unlawful conduct" in misstating the record on appeal has forced him to incur an additional $2,976 in attorney fees.  In other words, he is seeking these fees as a sanction.  We find no basis for awarding fees under Minn. Stat. § 518.14 (1998) because it does not appear that respondent "unreasonably contribute[d] to the length or expense of the proceeding."  See id.  The dispute regarding appellant's child-support obligation appears to have been quite acrimonious, and respondent did not recite the record with the utmost objectivity.  See Minn. R. Civ. App. P. 128.02, subd. 1(c) (requiring appellant's brief to recite facts "fairly, and with complete candor"); subd. 2 (requiring respondent's brief to comply with rules for appellant's brief).  But it does not appear that respondent attempted to intentionally mislead the court or act with bad faith. 

 

Affirmed; motion to strike granted in part; motion for fees denied.

 

 

[1]  Respondent requested an award of attorney fees on appeal in her brief.  This request does not comply with Minn. R. Civ. App. P. 139.06 and is, therefore, not properly before us.