Robin Hillan Schuyler, petitioner, Respondent, vs. Dewey Rehnholdt Pihlman, Appellant.

Robin Hillan Schuyler, petitioner, Respondent, vs. Dewey Rehnholdt Pihlman, Appellant. A06-1391, Court of Appeals Unpublished, August 28, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1391

 

 

Robin Hillan Pihlman, n/k/a

Robin Hillan Schuyler, petitioner,

Respondent,

 

vs.

 

Dewey Rehnholdt Pihlman,

Appellant.

 

 

Filed August 28, 2007

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. 27 FA 275524

 

 

Vija L. Brookshire, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South 5th Street, Minneapolis, MN 55402 (for respondent)

 

Robert A. Manson, 4526 Highway 61, White Bear Lake, MN 55110 (for appellant)

 

Angela Banga, P.O. Box 127, Chanhassen, MN 55317 (guardian ad litem)

 

 

            Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, 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 award of conduct-based attorney fees to respondent, arguing that he did not unnecessarily add to the length and cost of the proceedings by requesting an evidentiary hearing on his motion for change of custody.  Appellant also argues that the district court improperly denied his motion to amend the findings to delete the portion of the dissolution judgment providing respondent a lien against a cabin awarded to appellant.  Finally, appellant contends that the district court erred in determining his net monthly income is $2,033, alleging that the district court failed to consider his ordinary-and-necessary business expenses in its calculation.  We affirm. 

FACTS

            Appellant Dewey Rehnoldt Pihlman and respondent Robin Hillan Pihlman were married on September 11, 1982.  The parties have two daughters, one who is now emancipated, and E.P., who is 16 years old.  The parties' marriage was dissolved on December 4, 2002.  Under the parties' stipulated judgment and decree, respondent was awarded sole legal and physical custody of both children, subject to appellant's parenting time. 

At the time of the dissolution, appellant owned Pihlman Tool Company, Inc.  Because appellant's income fluctuated, the parties' stipulated judgment agreed to calculate appellant's child-support obligation based on a gross monthly income of $1,733.33, resulting in monthly child-support payments of $425.  The stipulated judgment also awarded the parties' cabin to appellant, subject to a lien in favor of respondent.  Specifically, paragraph 14(G) provided:

[Respondent's] Lien Interest.  [Respondent] is awarded a lien in the cabin for the following amounts:

 

(i)        All past due child support;

 

(ii)       All of [appellant's] unpaid contributions to the children's uninsured medical and dental expenses;

 

(iii)      100% of the [respondent's] attorney fees and costs she incurs to enforce cabin sale provision;

 

(iv)      $27,000.00;

 

(v)        Fifty (50%) percent of the payment made by [respondent] to the ING Line of Credit for the period August 1, 2002, to the date of entry of the Judgment and Decree herein; and

 

(vi)      Fifty (50%) percent of the total payments made by [respondent] to Federated Insurance (autos, home, and cabin) for the period August 1, 2002 to the date of entry of the Judgment and Decree.

 

On April 21, 2003, the district court entered an amended judgment and decree, which did not change the custody arrangements and did not alter the terms of respondent's lien against appellant's cabin.

In early 2005, appellant brought an ex parte motion seeking, in part, temporary custody of E.P. because of alleged child endangerment.  Appellant also requested that his child-support obligation be suspended.  The district court issued an order granting appellant's motion for temporary sole legal and physical custody of E.P. and temporarily suspending appellant's child-support obligation, concluding that there was "ample evidence to demonstrate an immediate prima facie case that [respondent's] continued custody [wa]s placing [E.P.] in emotional danger; there [wa]s a risk of physical danger; the benefits of an immediate temporary change in custody far outweigh[ed] . . . the adverse consequences of such a change."  The district court set the matter for a hearing on May 4, 2005.  The district court also appointed Angie Banga to serve as E.P.'s guardian ad litem. 

            On May 3, 2005, the guardian ad litem submitted a report recommending that both parents be granted temporary joint legal and physical custody of E.P., with E.P. residing with appellant from Monday to Friday morning and with respondent from Friday afternoon until Monday morning.  At appellant's request, the district court scheduled an evidentiary hearing on his motion to modify custody.  The hearing was scheduled to take place on September 28, 2005, but was later rescheduled to November 4, 2005.  The district court also ordered (1) Hennepin County Family Court Services (HCFCS) to conduct a custody evaluation and (2) HCFCS child psychologist, Susan DeVries, to conduct an evaluation of E.P.'s mental-health status.  At appellant's request, the evidentiary hearing on appellant's custody motion was again rescheduled from November 4 to December 22, 2005, with a pretrial on November 4.

            On October 23, 2005, DeVries submitted a report to the district court, recommending that E.P. be placed with just one parent, preferably respondent, and that E.P. have limited contact with appellant.  On October 28, 2005, Rob Mechels, the HCFCS evaluator who was ordered to conduct the custody evaluation, submitted his report to the district court, also recommending that respondent be granted sole legal and physical custody of E.P., subject to appellant's parenting time. 

            The parties met for a pretrial on November 4.  During the pretrial, the guardian ad litem "recommended that [E.P.] immediately be returned to the custody" of respondent pending the evidentiary hearing.  But despite the fact that the guardian ad litem and HCFCS experts all recommended that E.P. be returned to respondent's care, appellant continued to request an evidentiary hearing on his motion to change custody.  The district court subsequently issued an order returning temporary sole legal and physical custody of E.P. to respondent.  In its order, the district court made the following findings:

2.         Prior to the November 4, 2005 pretrial, the Court received the post-decree custody evaluation from the HCFCS evaluator, Rob Mechels.  Mr. Mechels recommends that [respondent] retain permanent sole legal and sole physical custody of the minor child . . . .  Of particular significance in his report are Mr. Mechels' findings regarding [E.P.'s] custodial preference:  "[E.P.] adamantly stated that she would prefer to live with her mother, that she did not want a set schedule to see her father and noted that she has run away from his home already and would consider doing it again if she is ordered to live with him." (p. 4, ¶ 2)  The Guardian ad Litem was also present at the pretrial and recommended that [E.P.] immediately be returned to the custody of her mother . . . .  The Guardian ad Litem expressed grave concern about [E.P.'s] well-being if [E.P.] is forced to continue to reside with [appellant] . . . stating that [E.P.] had clearly conveyed her desire to reside with [respondent], that [E.P.'s] emotional well-being was reaching crisis level living with [appellant], and that she too was extremely concerned that [E.P.] would run away from [appellant's] home if forced to continue residing there.  Both Mr. Mechels' report and the Guardian ad Litem indicate that HCFCS psychologist Susan DeVries recommendations are consistent with their own:  that [E.P.'s] well-being requires a return to [respondent's] home.

 

3.         All three of the court-appointed neutrals recommend [E.P.'s] return to [respondent's] custody.  All three state that [E.P.] has a stronger relationship with [respondent] than she has with [appellant].  The Guardian ad Litem and Mr. Mechels both indicate that [E.P.] has made clear that she wants to live with [respondent], that [E.P.] has run away from [appellant's] residence in the past, and that she has stated that she will do so again if forced to continue living with [appellant].  The preference of an older teenage child is an "overwhelming consideration" in determining custody.  Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991).

 

4.         Based upon all of the above and the reports and recommendations of the three court-appointed neutral professionals, the current custodial and parenting time arrangement endangers [E.P.'s] emotional health.  The reports from the three professionals, specifically including the oral report given to the Court by the Guardian ad Litem, indicate that [E.P.'s] mental state is dependent upon the outcome of this matter and that not returning her to the custody of [respondent] could compromise her mental and emotional well-being.

 

            On December 16, 2005, respondent moved for attorney fees pursuant to Minn. Stat. § 518.14 (2006).  Despite the fact that the evidentiary hearing requested by appellant was scheduled to be completed on December 22, 2005, the district court had to schedule additional time for testimony on January 3, 2006, and March 16, 2006, after appellant failed to complete his case in December.           

            On March 16, 2006, the district court issued an order denying appellant's motion for a change in custody and requiring appellant to pay respondent child support of $516.60 per month.  The district court also granted respondent's request for conduct-based attorney fees under section 518.14, subdivision 1, and directed respondent to submit an affidavit of attorney fees.  Respondent subsequently submitted an affidavit, and the district court issued an order awarding respondent $20,334.53 in attorney fees.    

            Appellant moved for a new trial and for amended findings of fact and order.  Respondent filed a responsive motion, requesting the district court to deny appellant's motion and to award respondent additional attorney fees for having to respond to appellant's motion.  Appellant filed a second motion, seeking to amend paragraph 14 of the judgment "to delete the provisions providing a lien for the [respondent] in [appellant's] homestead."  The district court subsequently issued an order (1) denying appellant's motion for a new trial, (2) denying appellant's motion for amended findings, (3) denying appellant's motion requesting a discharge of respondent's lien interest in his cabin, and (4) granting respondent's request for additional attorney fees in the amount of $950.

            This appeal follows. 

D E C I S I O N

I.

 

            Appellant argues that the district court abused its discretion in awarding respondent conduct-based attorney fees.  As a general rule, "attorney fees are not recoverable absent specific authority allowing a recovery."  Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001).  Under Minn. Stat. § 518.14, subd. 1 (2006), the district court may, in its discretion, award attorney fees "against a party who unreasonably contributes to the length or expense of the proceeding."  Awarding conduct-based attorney fees may be appropriate when a party unnecessarily delays the proceedings by taking "duplicitous and disingenuous" positions or by engaging in conduct that increases the costs of litigation.  Redmond v. Redmond, 594 N.W.2d 272, 276 (Minn. App. 1999); Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996).  The moving party has the burden of showing that another's conduct unreasonably contributed to the length or expense of the proceeding.  Geske, 624 N.W.2d at 818. 

            An award of conduct-based attorney fees "may be made regardless of the recipient's need for fees and regardless of the payor's ability to contribute to a fee award."  Id.  Conduct-based attorney fees must be awarded for conduct occurring during the litigation, and the district court must identify the conduct that justified the award.  Id. at 819; see also Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (stating that the district court must make findings regarding the basis for conduct-based attorney fees that "permit meaningful appellate review"). 

An award of attorney fees under section 518.14, subdivision 1, "rests almost entirely within the discretion of the [district] court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).     

            Here, the district court awarded respondent conduct-based attorney fees in the amount of $20,334.53 under section 518.14, subdivision 1, after finding that appellant "unnecessarily added to the length and cost of th[e] proceeding[s]" by continuing with his motion to modify custody "despite the professional opinions of 3 court appointed professionals that were directly contrary to his motion."  The district court stated that if appellant "had countered with expert opinion or convincing lay opinion, the hearing would have been justified."  But because appellant "failed to do so," an award of conduct-based attorney fees was deemed appropriate.  The district court awarded respondent an additional $950 in attorney fees in connection with appellant's motion for amended findings. 

            The issue is whether appellant's insistence upon an evidentiary hearing on his motion to modify custody unreasonably contributed to the length or expense of the proceeding, given the facts of the case.  Appellant argues that because the district court initially found a prima facie basis for a modification of custody, the district court's subsequent determination that appellant unnecessarily added to the length of the proceedings by continuing his motion for an evidentiary hearing was a clear abuse of its discretion. 

"A [district] court may refuse to modify a child custody order without holding an evidentiary hearing if the affidavits accompanying the motion do not satisfactorily establish, on a preliminary basis, that there has occurred a significant change in circumstances which endangers the child's physical or emotional health or emotional development."  Lilleboe v. Lilleboe, 453 N.W.2d 721, 723 (Minn. App. 1990).  But "[i]f sufficient evidence exists to warrant consideration of a modification order, the court must order an evidentiary hearing in which witnesses may be cross-examined."  Id. at 723-24 (further stating that evidentiary hearings are "strongly encouraged" so as to protect the best interests of the child in situations when allegations of endangerment to a child's health or emotional well-being are being made); see also Lutzi v. Lutzi, 485 N.W.2d 311, 316 (Minn. App. 1992) (stating that "a proponent of chang[ing a judgment on child custody] is entitled to an evidentiary hearing upon showing a prima facie case for the requested modification"). 

The record indicates that in April 2005, the district court granted appellant's motion for temporary sole legal and physical custody of E.P. after finding that there was "ample evidence" to demonstrate a prima facie case that respondent's custody was placing E.P. in physical and emotional danger.  The district court scheduled appellant's motion for a hearing on May 4, 2005, and an evidentiary hearing on appellant's motion to modify custody for September 28, 2005.  But the record shows that the evidentiary hearing was rescheduled to November 4, 2005, and later, at appellant's request, rescheduled a second time to December 22, 2005.  The record further shows that appellant sought to reschedule the evidentiary hearing despite the fact that, by November 4, 2005, the guardian ad litem, the HCFCS evaluator, and the HCFCS child psychologist, had all recommended that respondent be granted sole custody of E.P.  Moreover, the record indicates that although the evidentiary hearing was scheduled to be completed on December 22, appellant's lengthy presentation made it necessary for the district court to schedule additional time on both January 3, 2006, and March 14, 2006.  After the district court issued its order denying appellant's motion for custody modification, appellant moved for a new trial and for amended findings of fact.  While we agree that appellant was initially entitled to an evidentiary hearing on his motion, we conclude that the district court did not abuse its discretion by determining that appellant's subsequent conduct unreasonably and unnecessarily lengthened the proceedings, thereby justifying the award of attorney fees.   

            Appellant also contends that the district court abused its discretion by failing to identify specific conduct that formed the basis for its award of attorney fees.  While it is true that the district court must identify the specific conduct that justifies the award, Geske, 624 N.W.2d at 819, the record here shows that the district court complied with this requirement.  As previously noted, the district court's order specifically stated that appellant unnecessarily added to the length and cost of the proceedings by continuing with his motion to modify custody despite the contrary opinions of three court-appointed professionals and without offering either an expert opinion supporting his argument or more persuasive evidence to support his motion. 

            Finally, appellant argues that respondent failed to bring a motion under Minn. R. Gen. Pract. 119, which provides that "[i]n any action or proceeding in which an attorney seeks the award . . . of attorneys' fees in the amount of $1,000.00 . . . or more, application for award or approval of fees shall be made by motion."  But even assuming appellant is correct in asserting that the requirements of rule 119 have not been met, the Minnesota Supreme Court held in Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999), that when the district court "is familiar with the history of the case and has access to the parties' financial information, it may waive the requirements of Rule 119."          

Therefore, based on this record, we conclude that the district court did not abuse its discretion by finding that appellant had unreasonably and unnecessarily added to the length and cost of the proceedings so as to justify an award of attorney fees to respondent. 

II.

            Appellant next argues that the district court improperly denied his motion to amend the second amended judgment and decree "to delete the provisions providing a lien for [respondent]" against appellant's cabin.  "The purpose of a motion for amended findings is to permit the [district] court a review of its own exercise of discretion."  Johnson v. Johnson, 563 N.W.2d 77, 78 (Minn. App. 1997) (quotation omitted), review denied (Minn. June 30, 1997).  "[A] denial of a motion for amended findings is equivalent to an adverse finding on the issue presented."  Nelson v. Dorr, 239 Minn. 423, 432, 58 N.W.2d 876, 881 (1953).  The district court's denial of appellant's motion to amend the findings will not be disturbed on appeal absent a clear abuse of discretion.  State by Fort Snelling State Park Ass'n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169, 177-78 (Minn. App. 2003) (citing Preferred Fin. Corp. v. Quality Homes Inc., 439 N.W.2d 741, 743 (Minn. App. 1989)), review denied (Minn. Mar. 16, 2004).    

"[A] proper motion for amended findings must both identify the alleged defect in the challenged findings and explain why the challenged findings are defective."  Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998).  "[T]he moving party should address the record evidence, explain why the record does not support the district court's findings, and explain why the proposed findings are appropriate."  Id. at 316.  In considering a motion for amended findings, a court "may neither go outside the record, nor consider new evidence."  Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974).      

            Paragraph 14(G) of the stipulated judgment provides, in relevant part, that respondent is awarded a lien on the cabin for all past-due child support and, separately, for the amount of $27,000.  Appellant's motion stated simply: "Amending paragraph 13 [sic] of the Judgment and Decree in this matter to delete the provisions providing a lien for the [respondent] in the [appellant's] homestead."  On appeal, appellant specifically contends that the lien on the cabin for $27,000 should have been deleted because his understanding of the stipulated judgment was that respondent would be granted a lien on his property only for the purposes of securing child-support payments.  The district court disagreed, denying appellant's motion to amend the judgment and to discharge respondent's lien interest in the cabin, finding that

            [p]ursuant to the Second Amended Judgment . . . entered on April 21, 2003, [respondent] was awarded a lien interest in the cabin for seven (7) [sic] specific and independent amounts.  Separately, this included both (1) all past due child support, and (2) $27,000.  According to the terms of the Decree, [respondent] was awarded $27,000 in addition to past due child support.  Thus, the lien is not just security for child support. 

 

In his motion, appellant did not identify the alleged defect in the challenged findings, nor explain why the challenged findings were defective.  See Nielsen v. City of St. Paul, 252 Minn. 12, 29, 88 N.W.2d 853, 864 (1958) (stating that "[t]o justify the reversal of a refusal to make amended findings, it is not enough to show that there was evidence to justify the proposed amended findings had they been made").  In addition, the stipulated judgment, which was signed by appellant, expressly awards respondent a lien on the cabin for six separate and independent items, including both past-due child support and $27,000.  Appellant does not cite to any record evidence, other than his own assertions, to support his argument that the parties intended that the lien on the cabin would be awarded to respondent for past-due child support only.  Therefore, the evidence in the record supports the district court's findings.  For these reasons, we conclude that the district court properly denied appellant's motion to amend the findings. 

III.

            Appellant also argues that the district court clearly erred in finding that his net monthly income was $2,033, alleging that the district court failed to consider his business expenses in its calculation.  The district court has broad discretion to provide for the support of the parties' children, and its decision will not be set aside absent an abuse of discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A determination of the amount of an obligor's income for purposes of child support is a finding of fact and will not be altered on appeal unless clearly erroneous.  Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002).  The district court has broad discretion to determine the income of a self-employed parent because "the opportunity for a self-employed person to support himself yet report a negligible net income is too well known to require exposition."  Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984).  Minn. Stat. § 518.551, subd. 5b(f) (2004),[1] provides: 

Income from self employment is equal to gross receipts minus ordinary and necessary expenses.  Ordinary and necessary expenses do not include amounts allowed by the Internal Revenue Service for accelerated depreciation expenses or investment tax credits or any other business expenses determined by the court to be inappropriate for determining income for purposes of child support. 

 

            Here, the district court found that appellant receives social security income of $1,027 per month.  The district court also found that, in addition to his income from social security, appellant "works part time approximately 48 hours per month earning $25 per hour for an additional net monthly income of approximately $1,006."  Appellant now contends that the district court erred because it should have reduced his gross monthly income from self-employment by 85 to 90%, due to business expenses.    

But section 518.551, subdivision 5b(f), states that "[t]he person seeking to deduct an expense, including depreciation, has the burden of proving, if challenged, that the expense is ordinary and necessary."  In addition, Minn. Stat. § 518.551, subd. 5b(a) (2004), provides that parties "shall timely serve and file documentation of earnings and income" and that for parties who are self-employed, "[d]ocumentation of earnings and income . . . includes . . . statement of receipts and expenses." 

Here, appellant offered no evidence of his alleged business expenses, other than the following testimony:

Q         How much do they pay per hour, then?

 

A          Gross to my company, $25 per hour.

 

Q         And out of that, what kind of expenses do you have?

 

A          Well, there's living expenses, there's gasoline.  The job is 80 miles from where I stay now.  So the expenses to do that are really pretty extensive.

 

Q         Okay, so how much do you figure you netor have netted, then, off of that job in the last three months?

 

A          I'll be lucky to come out with 10 to 15 percent.

 

Q         Okay, and some of those write-offs are mileage write-offs?

 

A          Mileage, motel expenses, eating expenses. 

 

Appellant did not provide the district court with any documentation of his ordinary-and-necessary expenses, such as receipts, tax documents, or business records.  Accordingly, we conclude that the district court's determination of appellant's net monthly income is not clearly erroneous.  See Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (stating "[o]n appeal, a party cannot complain about a district court's failure to rule in her favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question"), review denied (Minn. Nov. 25, 2003); Farrar v. Farrar, 383 N.W.2d 436, 440 (Minn. App. 1986) (stating "[a district] court is not required to make findings where the interested party fails to meet his burden to produce evidence on the issue"), review denied (Minn. May 22, 1986). 

            Affirmed.

 

[1] The legislature has since changed and recodified the child-support statute in chapter 518A.  The new law is effective to calculate child support for filings after January 1, 2007.  2006 Minn. Laws ch. 280, § 44.  Therefore, the prior statute applies to appellant's claim.