In re the Marriage of: Lisa M. Jewison, petitioner, Respondent, vs. Jeffrey J. Jewison, Appellant.

In re the Marriage of: Lisa M. Jewison, petitioner, Respondent, vs. Jeffrey J. Jewison, Appellant. A05-2172, Court of Appeals Unpublished, July 3, 2006.

This opinion will be unpublished and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

A05-2172

 

 

In re the Marriage of:

 

Lisa M. Jewison, petitioner,

Respondent,

 

vs.

 

Jeffrey J. Jewison,

Appellant.

 

 

Filed July 3, 2006

Affirmed as modified

Lansing, Judge

 

 

Waseca County District Court

File No. F0-92-427

 

 

Catherine Brown Furness, Premier Bank Building, 209 East Main, Suite D, Owatonna, MN 55060(for respondent)

 

Kenneth R. White, Law Office of Kenneth R. White, 325 South Broad Street, Suite 203, Mankato, MN 56001 (for appellant)

 

 

            Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from the district court's order modifying Jeffrey Jewison's parenting time and granting Lisa Farley's motion for attorneys' fees, Jewison challenges the scope of relief and the sufficiency of the evidence to support the order for attorneys' fees.  The district court did not abuse its discretion by modifying the parties' obligations for parenting-time transportation or by requiring Jewison to pay conduct-based attorneys' fees.  We therefore affirm the district court's judgment but modify the imposition of attorneys' fees to reflect the relief requested by Farley in her motion.

F A C T S

Jeffrey Jewison and Lisa Farley, formerly Lisa Jewison, dissolved their marriage in 1992.  Jewison and Farley are the parents of three teenage children.  In November 2003 they stipulated to a revised parenting schedule that was incorporated as an amendment to the dissolution judgment.  The amendment schedules parenting time and provides that Jewison will have parenting time with the children every other weekend and on designated holidays and other specified dates.  The schedule also provides that, unless Jewison and Farley otherwise agree, each parent is responsible for picking up the children for his or her parenting time.  Additionally, the schedule states that, before a child is enrolled in an extracurricular activity, the enrolling parent must inform the other parent if the activity will conflict with parenting time.  If the parent agrees to the child's participation in an activity that affects his or her parenting time, that parent is "responsible for transporting the children to the activity."

Each of the children is involved in multiple extracurricular activities, and these activities occur during the parenting time of both Jewison and Farley.  Frustrated with the impact that the extracurricular activities and accompanying transportation demands had on his parenting time, Jewison filed a motion for an order finding Farley in contempt and imposing sanctions.  As part of his requested relief, he asked that the court order Farley to cease enrolling the children in extracurricular activities that conflict with his parenting time and that the court order Farley "to provide all transportation from [Jewison's] home and back to his home."

After receiving the motion, the district court issued an order to show cause.  Farley filed a responsive motion denying that she was in contempt.  In her motion, Farley requested that the court classify Jewison as a "nuisance litigator"; order Jewison to pay her attorneys' fees; require Jewison to produce his 2002, 2003, and 2004 tax returns and schedules; modify the parenting-time schedule to provide that Jewison must assist and encourage the children in their activities and that activities held on his weekend are included in his parenting time; and modify parenting time because Jewison had "interfered with the best interest[s] of the children's mental and emotional health."

The district court conducted an initial hearing on these motions on April 11, 2005.  Concluding that an evidentiary hearing was required for a determination, the district court reserved its rulings on contempt, nuisance litigation, attorneys' fees, and modification of parenting time.  The court denied Jewison's request for an order instructing Farley to provide transportation.  The court granted, however, Farley's request for an order requiring Jewison to support the children in their activities and ordered Jewison to produce his tax returns and schedules within ten days.

The district court held the evidentiary hearing in May.  On the first day of the hearing, May 3, the court learned that Jewison had failed to provide his tax returns and schedules and that he had supplied only his W-2 forms.  The court, on the record, ordered Jewison to provide both Farley and the court with a full copy of his returns and schedules before the beginning of the next hearing date. 

The hearing resumed a week later on May 10.  Jewison again failed to comply with the court's order to produce complete tax returns and schedules.  Although he provided a partial copy of his 2004 tax return, he refused to include the accompanying schedules.  The district court stopped the hearing and stated that the hearing would not resume until the court received a complete copy of the tax returns and schedules.  After receiving some tax documents that day, the court resumed the hearing.  Because the tax returns were still incomplete, however, the district court ordered Jewison to produce a full copy of the returns and schedules by 4:30 p.m. the following day or "report to jail to serve out a 10-day jail sentence for failure to follow the court's directive order."  On the third day of the hearing, May 11, Jewison complied with the court's order and delivered a complete copy of his tax returns and schedules.

The district court issued its order on May 12.  The court denied Farley's motion to classify Jewison as a "nuisance litigator" and also denied Jewison's motion to find Farley in contempt.  Based on the testimony of the parents and the children, the district court ordered Jewison and Farley to abide by a revised parenting-time schedule and provided that "[t]ransportation of the children for parenting time, pick-up from and return to [Farley's] home, shall be provided by [Jewison] or his designee."  Concluding that Jewison unreasonably contributed to the delay of the proceedings, the district court ordered Jewison to pay $3,500 in conduct-based attorneys' fees.

Jewison filed a motion for a new trial or amended findings, which the district court denied.  He now appeals from the district court's judgment, alleging that the court exceeded its authority by altering the transportation arrangement and abused its discretion by imposing conduct-based attorneys' fees.

D E C I S I O N

I

            The district court has broad discretion in deciding parenting-time issues, and, unless the court abuses that discretion, we will not reverse its determination.  Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995).  The best interests of the children are the determinative factors in disputes over parenting time.  Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984), review denied (Minn. June 12, 1984). 

Jewison contends that the issue of transportation was not properly before the district court and that the court therefore erred by modifying the transportation arrangement of the parties.  We disagree.  Jewison, in his contempt motion, requested that the court require Farley to be responsible for transportation to and from his home.  This request directly raises the issue of parenting-time transportation.  Farley's motion expands on the issues of parenting time and transportation.  Her motion requests modification of the parenting-time schedule and also requests an order instructing Jewison to assist the children in their extracurricular activities.  In the context of the parents' dispute, the court could reasonably interpret Farley's requests for modification of parenting time and assistance in the children's activities as including the general issue of transportation.  Furthermore, the evidentiary hearing included substantial testimony on the issue of parenting time, specifically the difficulties arising from transportation of the children.  Because both parents raised issues related to parenting time and transportation and these issues were explored at length in a three-day evidentiary hearing, the district court did not abuse its discretion by modifying parenting time to require Jewison to take on additional responsibility for the transportation of the children.

Although not directly challenged, the record supports a determination that the district court's modification is in the children's best interests.  The testimony of the parents and the children establish that transportation and parenting time has been a source of stress and conflict.  The testimony suggests that the travel time will permit more direct parent-child interaction and encourage both parents to attend the children's activities.  Thus, the modification was within the district court's discretion in considering the best interests of the children.

II

Jewison contends that the district court abused its discretion by ordering him to pay $3,500 in attorneys' fees because Farley did not submit evidence that these fees are related solely to his refusal to supply his tax returns and schedules. 

The district court may impose attorneys' fees when a litigant unreasonably contributes to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1 (2004).  Before imposing conduct-based attorneys' fees, the district court must identify the offending conduct and the conduct must have occurred during the proceeding.  Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  The decision to impose attorneys' fees is almost entirely within the discretion of the district court, and we will not alter the decision absent an abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).

            In its order for fees, the district court stated that Jewison's refusal to comply with the order to produce his complete tax returns and schedules contributed to the delay of the proceedings.  This determination is supported by the record.  The sole reason that the court extended the hearing to the third day was to receive and review Jewison's tax documents.  Jewison's failure to abide by two oral orders and a written order to produce the documents caused the court to delay the proceedings at least twice.  The district court was able to obtain compliance only by threat of incarceration.  Because this conduct occurred during the proceeding, the district court had discretion to impose conduct-based attorneys' fees.

            The district court's explicit denial of Farley's motion to label Jewison a nuisance litigant does not preclude the court from ordering attorneys' fees for unreasonably causing delay.  A showing of bad faith is not a prerequisite to an order for attorneys' fees.  See Geske, 624 N.W.2d at 818-19 (specifying that bad faith is not required for imposition of conduct-based attorneys' fees).  Neither must Farley demonstrate that her attorneys' fees are related exclusively to Jewison's conduct.  Id. at 818.  She need only show that his conduct unreasonably delayed the proceeding.  The record establishes that she has met this burden.

            We therefore affirm the district court's determination that Farley was entitled to conduct-based attorneys' fees.  Because Farley's motion only requests $2,500 in attorneys' fees, however, we modify the district court's judgment to reflect the requested relief of $2,500 in attorneys' fees.

            Affirmed as modified.