In Re: Thomas M. LaFond, petitioner, Appellant, vs. Mary G. LaFond, Respondent.

In Re: Thomas M. LaFond, petitioner, Appellant, vs. Mary G. LaFond, Respondent. A04-1176, Court of Appeals Unpublished, March 22, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA IN COURT OF APPEALS A04-1176

 

In Re: Thomas M. LaFond, petitioner,

Appellant,

 

vs.

 

Mary G. LaFond,

Respondent.

 

Filed March 22, 2005 Affirmed; motion denied

Poritsky, Judge*

 

Rice County District Court

File No. F693423

 

Jonathan S. Braden, J. Scott Braden, P.A., 415 Second Avenue Northwest, Faribault, MN 55021 (for appellant)

 

Ronald L. Moersch, Mary L. Hahn, Hvistendahl, Moersch & Dorsey, P.A., 311 South Water Street, P.O. Box 651, Northfield, MN 55057-0651 (for respondent)

 

            Considered and decided by Chief Judge Edward Toussaint, Presiding Judge; Hudson, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

            Appellant challenges the district court's decision denying his motion to modify his child support obligation, arguing that because he established a substantial change in circumstances that renders the existing obligation unreasonable and unfair, the district court's decision is an abuse of discretion.  Respondent moves for attorney fees, costs, and disbursements on appeal, pursuant to Minn. Stat. § 518.14, subd. 1 (2004).  Because we conclude that the district court did not abuse its discretion in denying appellant's motion to modify, we affirm.  We deny respondent's motion for fees.

FACTS

            On October 13, 1993, appellant Thomas M. LaFond and respondent Mary G. LaFond agreed to dissolve their 19-year marriage pursuant to a 24-page stipulation.  The agreement gave the parties joint legal custody of their three minor children and gave respondent sole physical custody, subject to liberal visitation by appellant.  Appellant also agreed to pay child support until the children were either 18 years old, 20 years old if still in high school, or emancipated, whichever occurred first.  Appellant's child-support obligation was initially set at $1,300 per month, based on his gross annual income of $74,380 from his employment as an air traffic controller with the Federal Aviation Administration (FAA).  But the parties agreed that appellant's obligation would "be adjusted annually each year on February 1st, by the same percentage increase (if any), in [appellant's] base gross income from his employment in the prior calendar year."  Thus, the agreement contemplated that appellant's child support payments would increase annually along with his salary.  The agreement was incorporated into the judgment dissolving the parties' marriage.

            In December 2003, at the age of 49, appellant took a voluntary retirement from his employment with the FAA.  According to appellant's 2003 tax return, he earned $141,593 in adjusted gross income in 2003.  After retiring, his gross annual income was reduced to $72,581, or $6,048 per month.  Appellant's net monthly income, after various deductions, is $3,760.07.  Appellant's living expenses total $4,110 per month.

In February 2004, appellant moved the court to reduce his child support obligation to $975 per month, or 25% of his net monthly income, which was in accord with the statutory guidelines.  At the time of the motion, appellant was paying $1,853 per month toward the support of the parties' youngest child, M.L., who is currently 13 years old.  The parties' other two children are emancipated.  In his affidavit supporting the motion, appellant stated:

            I am 49 years old.  My retirement was in good faith.  I did not retire for the purpose of reducing my child support obligation.  I have several health issues which impacted my ability to be an air traffic controller.  In November/December 2003, I suffered situational depression.  I was briefly treated with medications and individual therapy.  Based on this medical diagnosis, I was relieved of all air traffic control duties for five (5) weeks.  In August/September 2004, I had a tumor and a left perotid gland removed from the left side of my neck.  My medical clearance to perform air traffic control duties was withdrawn for a period of six (6) weeks. 

 

            Respondent filed an affidavit opposing appellant's motion in April 2004, arguing that it was "a breach of [their] negotiated financial settlement for [appellant] to voluntarily retire at age 49 and drastically reduce his income."  Respondent's affidavit also explained that M.L. had special needs that placed a "financial burden" on her "limited income."  Respondent works 20 to 30 hours per week as a nanny, earning $10.50 an hour, and cleans homes for approximately $95 per week.  Furthermore, respondent argued that even after appellant's retirement he was living an "elevated life style," which included, among other things, owning a home and a triplex and taking numerous vacations.  Respondent also disputed appellant's claimed medical conditions.    

            On April 16, 2004, a hearing was held on appellant's motion.  After considering the affidavits and the arguments of counsel, the district court issued an order on April 27, 2004, denying appellant's motion to reduce his child support obligation.  The district court stated:

            Although [appellant's] income has been substantially reduced, his retirement at age 49 was voluntary, and it is not unfair to require him to continue paying support as agreed in the marital [termination] agreement.  It would be unfair to the remaining child and [r]espondent to suffer financially because [appellant] chose to retire early.

 

The district court also stated that appellant had failed to submit any evidence establishing that his retirement was the result of health issues or that he could not, or would not, obtain another good paying job.  Moreover, the district court found that while the parties' stipulation "clearly contemplated that [appellant's] income would ‘increase' and that child support would be adjusted annually, [it] clearly does not contemplate a decrease in support as a result of a reduction in [appellant's] income as a result of retirement or otherwise."  This appeal follows. 

D E C I S I O N

 

I.

 

            The decision whether to modify child support lies in the broad discretion of the district court, and is reviewed under an abuse-of-discretion standard.  Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986).  An abuse of discretion occurs when the district court resolves the matter in a manner that is "against logic and the facts on record."  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002).

            The moving party has the burden of proof in support-modification proceedings.  Johnson v. Johnson, 304 Minn. 583, 584, 232 N.W.2d 204, 205 (1975).  A district court may modify an existing award for child support if the moving party shows (1) a substantial change in circumstances that (2) renders the award unfair and unreasonable.  Bormann v. Bormann, 644 N.W.2d 478, 480-81 (Minn. App. 2002); see also Minn. Stat. § 518.64, subd. 2(a) (2004).  When "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," a substantial change in circumstances is presumed, and there is a rebuttable presumption that the existing order is unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(b)(1) (2004).  But even where both presumptions are established, it is still within the district court's discretion to deny the modification request.  See Minn. Stat. § 518.64, subd. 2(a) ("The terms of an order respecting . . . support may be modified . . .") (emphasis added).

           

            Here, appellant argues that the district court abused its discretion in denying his modification motion because there has been a substantial change in his income that renders the current support order unreasonable and unfair.  We disagree.  Although appellant has established both presumptions, there is evidence in the record rebutting the presumption that the current obligation is unreasonable and unfair.  The district court specifically found that (1) appellant's retirement at age 49 was "voluntary;" (2) appellant failed to submit any evidence establishing that his retirement was caused by health issues; and (3) appellant failed to establish that he cannot, or will not, obtain another good paying job.  Because the record supports these findings, we conclude that appellant has failed to meet his burden of showing that it is unreasonable and unfair for him to continue paying $1,853 per month in child support. 

            Appellant also argues that the district court erred by implicitly imputing income to him.  But we do not read the district court's decision to be based on imputed income.  To the contrary, after considering appellant's argument that the current support obligation was unreasonable and unfair, the district court ruled that appellant failed to meet his burden of proof.  The district court might have found imputed income as an alternate basis for denying the motion, in which case the court would have been required to make the requisite findings.  See Minn. Stat. § 518.551, subd. 5b(d) (2004) (stating that imputed income is determined by estimating earning ability based on earnings history, education, job skills, and the availability of jobs within the community for someone with similar qualifications).  But because the district court did not state that it was imputing income, and because the
reasoning of the district court as expressed is correct, we decline to needlessly graft the theory of imputed income onto the district court's decision.

            Finally, we note that the district court's decision is especially appropriate in light of the parties' stipulation.  When parties agree to dissolve their marriage under certain terms, the resulting stipulation is accorded the sanctity of a binding contract.  Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997).  And it is well settled that in a stipulation, parties are free to bind themselves to obligations that a court could not impose.  LaBelle v. LaBelle, 302 Minn. 98, 111, 223 N.W.2d 400, 408 (1974); see also Geiger v. Geiger, 470 N.W.2d 704, 707 (Minn. App. 1991) (stating "stipulations may waive parties' statutory rights in dissolution cases"), review denied (Minn. Aug. 1, 1991).  When appellant retired, he was aware both of the terms of the stipulation and that his child was only 12 years of age.  Furthermore, we agree with the district court that "[w]hile the parties clearly contemplated that [appellant's] income would ‘increase' and that child support would be adjusted annually, the decree clearly does not contemplate a decrease in support as a result of a reduction in [appellant's] income as a result of retirement or otherwise."  Therefore, we conclude that the district court did not abuse its discretion in denying appellant's request to modify his child support obligation.   

II.

            Respondent seeks $4,489.12 in attorney fees, costs, and disbursements, which were incurred as a result of this appeal, pursuant to Minn. Stat. § 518.14, subd. 1 (2004).  An award of fees may be sought "any point in the proceeding," including on appeal.  Clark v. Clark, 642 N.W.2d 459, 466 (Minn. App. 2002).  Need-based fees "shall" be awarded if the court finds that (1) the fees are necessary for the good-faith assertion of the party's rights and will not contribute unnecessarily to the length and expense of the proceeding; (2) the party from whom fees are sought has the means to pay them; and (3) the party requesting fees does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1.  Additionally, the court may, in its discretion, award additional conduct-based fees when a party "unreasonably contributes to the length or expense of the proceeding."  Id.  The moving party has the burden of proof in establishing that conduct-based fees are appropriate.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).

            Here, the record shows that appellant's net monthly income, before his child support obligation, is $3,760.07.  His monthly expenses total $4,110, and by virtue of this decision, his child support obligation remains $1,853 per month.  Because we conclude that appellant does not have the ability to pay respondent's fees, it is unnecessary to consider respondent's need.  Furthermore, respondent has not met her burden of proof in establishing that conduct-based fees are appropriate.  Therefore, we deny respondent's motion for attorney fees, costs, and disbursements.                                                                

            Affirmed; motion 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.