In re: Emilie Gail Britton, n/k/a Emilie Gail Norman, petitioner, Respondent, vs. Thomas Craig Britton, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-03-327

In re:

Emilie Gail Britton,

n/k/a Emilie Gail Norman, petitioner,

Respondent,

vs.

Thomas Craig Britton,

Appellant.

Filed September 16, 2003

Affirmed

Lansing, Judge

Hennepin County District Court

File No. 198538

Kathryn A. Engman, Nordaune & Friesen, 1140 Interchange Tower, 600 South Highway 169, St. Louis Park, MN  55426 (for respondent)

Mark A. Olson, Olson Law Office, 2605 East Cliff Road, Burnsville, MN  55337 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            Thomas Britton appeals a district court order, on motion for review, that interprets a provision in a stipulated dissolution judgment and orders attorneys' fees.  Because the court's interpretation is consistent with the stipulated language that did not incorporate a Hortis-Valento offset into the child-support adjustment, we affirm.  We also affirm the district court's order for need-based attorneys' fees.

F A C T S

            Emilie Norman and Thomas Britton stipulated to the child-support provisions incorporated into their 1993 dissolution judgment.  Under the stipulated judgment, Britton was required to pay monthly child support of $1,500 for their two children, and upon the older child's emancipation, the amount would be "adjusted to the then appropriate amount for one child, based upon the Minnesota Statutory Child-Support Guidelines."

            In June 2002, the parties' older child became emancipated.  The next month, Britton moved to amend the original judgment in part by recalculating his support obligation for his younger child to reflect a Hortis-Valento offset.  Valento v. Valento, 385 N.W.2d 860, 862-63 (Minn. App. 1986), review denied (Minn. June 30, 1986); Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985).  Norman brought a responsive motion to establish Britton's child-support obligation consistent with the stipulated child-support guidelines amount and requesting attorneys' fees.

Following a contested motion hearing, a referee found that Britton and Norman stipulated in their marital-termination agreement that, upon the emancipation of the older child, Britton's support obligation for the younger child would be set at the statutory child-support guidelines amount for one child, with no Hortis-Valento offset, and that Norman was entitled to attorneys' fees.  The referee ordered that Britton pay Norman $1,250 a month in child support, and $1,500 in attorneys' fees.

            Britton filed a motion for review of the referee's order.  The reviewing judge affirmed the referee's order, and Britton appeals.

D E C I S I O N

A district court has broad discretion in ordering modifications to child-support orders and will be reversed only if it abused its discretion by reaching a conclusion that is contrary to logic and the record facts.  Gully v. Gully, 599 N.W.2d 814, 820 (Minn. 1999). On appeal we accord deference to the district court's interpretation of language in a dissolution judgment that it has issued.  Palmi v. Palmi, 273 Minn. 97, 103, 140 N.W.2d 77, 81 (1966); see also Mikoda v. Mikoda, 413 N.W.2d 238, 241-42 (Minn. App. 1987) (extending deference to successor judge).  A district court's order on attorneys' fees is reviewed under an abuse-of-discretion standard.  Gully, 599 N.W.2d at 825.

I

            In Minnesota, a guideline child-support obligation is rebuttably presumed to be appropriate in all cases.  Minn. Stat. § 518.551, subd. 5(a) (2002).  The Hortis-Valento method for calculating child support, however, is generally used for setting support when parents have joint physical custody of a child.  Rogers v. Rogers, 622 N.W.2d 813, 816 (Minn. 2001).  Under the Hortis-Valento method, each parent is required to pay support as indicated by the child-support guidelines, reduced by the percentage of time that the parent has physical custody of the child.  Id.

            In the dissolution judgment, Britton and Norman received "joint legal and physical custody of the children," but the judgment also allowed Britton specified visitation.  In its findings on Britton's motion to amend, the district court found that the mediated visitation schedule would result in the younger child spending two-thirds of his time with Norman and one-third of his time with Britton.  Britton contends that the visitation schedule could result in the younger child spending half of his time with Britton.

The district court recognized that the Hortis-Valento method of calculating support is appropriate when parents have joint physical custody of a child, but concluded that Britton and Norman had agreed to a different arrangement in their 1993 stipulated judgment.  The record supports the district court's determination.  Britton and Norman's stipulated judgment states in part:

[Britton] shall pay to [Norman], as and for child support of the minor children, the sum of One Thousand Five Hundred Dollars ($1,500.00) per month . . . until the oldest child has attained the age of eighteen . . . .  At such time as the oldest minor child is no longer entitled to child support, [Britton's] child support obligation shall be adjusted to the then appropriate amount for one child, based upon the Minnesota Statutory Child Support Guidelines.

The dissolution judgment shows that, despite the option of the Hortis-Valento method of calculating support, Britton stipulated to a $1,500 monthly child-support obligation, which was, at that time, a straight guideline amount and the maximum amount of child support Britton could pay under the then-current guidelines.  See Minn. Stat. § 518.551, subd. 5(b) (Supp. 1993) (capping the net monthly income used in calculation of guideline child-support obligation at $5,000, which results in a $1,500 monthly support obligation).

The language in the stipulated judgment indicates that Norman and Britton did not intend to use the Hortis-Valento method when recalculating Britton's support obligation after the emancipation of the older child.  Britton paid the guideline child-support amount of $1,500 for almost nine years.  As the district court found, "[t]he calculation was a straight guideline amount, as if [Norman] had sole custody."  In that factual context, the provision for Britton's child support to be adjusted, upon emancipation of the older child, to the appropriate guidelines support for one child, reasonably means that the straight guidelines-support amount without incorporating a Hortis-Valento offset.  Although the Hortis-Valento formula "is an application of the guidelines," the formula is not specifically set forth in the guidelines.  Schlichting v. Paulus, 632 N.W.2d 790, 793 (Minn. App. 2001).  Thus the district court reasoned that the "appropriate amount for one child," based on the guidelines would be the amount set forth in the guidelines, without the Hortis-Valento offset.  The district court's interpretation of the stipulated-judgment provision is reasonable and consistent with the facts as well as the language of the judgment.

            Although it is well settled that the basic right of minor children to support by the parents may not be affected by any agreement between the parents, Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970), parties to a dissolution proceeding may bind themselves to a higher level of performance than the presumptive guideline-support obligation.  Plath v. Plath, 393 N.W.2d 401, 403 (Minn. App. 1986).  Because Britton and Norman stipulated that Britton would pay more child support than required under the Hortis-Valento method, their stipulation is not contrary to the law.

II

            In any action in which an attorney seeks fees in the amount of $1,000 or more, application must be made by motion.  Minn. R. Gen. Pract. 119.01.  The motion must be accompanied by an attorney affidavit describing each item of work performed, the time spent on each item of work, and the hourly rate for the work performed.  Minn. R. Gen. Pract. 119.02.  The district court, however, has discretion to waive the Rule 119 requirement when the court is familiar with the case and has access to the parties' financial records.  Gully, 599 N.W.2d at 826.

            The general practice rules also require that a responsive motion raising new issues must be filed ten days before the relevant hearing.  Minn. R. Gen. Pract. 303.03(a)(2).  Again, the district court has discretion in enforcement of the rules on motion practice.  Id. at 303.03(b). 

Britton argues that the district court erred in allowing Norman attorneys' fees because she did not comply with rules 119 and 303 of the general rules of practice.  The record shows that Norman's request for attorneys' fees was a new issue raised in her responsive motion, that the motion was served and filed only five days before the parties' hearing date, and it was not accompanied by the information required under rule 119.02.

Despite these deficiencies, the district court was within its discretion to award Norman attorneys' fees.  Exhibits submitted to the referee included Britton's W-2 forms from 1999 to 2001, Norman's W-2 forms from 1998 to 2001, and documents containing Britton and Norman's monthly expenses.  In addition, Norman's request for attorneys' fees states that her attorney's hourly billing rate is $150 and that she had accumulated $2,500 in fees.  Because the district court was familiar with the case and had access to the parties' financial records, it had discretion to waive the requirements under rule 119 and rule 303. 

Britton also argues that the court erred in allowing Norman attorneys' fees because the court failed to make findings required by Minn. Stat. § 518.14.  Attorneys' fees may be either need-based or conduct-based.  Minn. Stat. § 518.14, subd. 1 (2002).  To order need-based fees, the district court must find that (1) the fees were necessary for a good-faith assertion of a party's rights; (2) the party ordered to pay fees has the means to pay them; and (3) the party receiving the fees does not have the means to pay them.  Id.  But a lack of specific findings on the statutory factors for need-based fees under section 518.14 is not fatal to an order when its content gives rise to a reasonable inference that the district court considered the relevant factors and when the district court was familiar with the history of the case and had access to the parties' financial records.  Geske v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001). 

Neither the district court nor the referee made the specific findings required under section 518.14.  But the referee did find that Norman earned approximately $56,400 a year, had a net income of $2,614 a month, and reasonable monthly living expenses of $4,423.49, including the younger child's living expenses.  The referee also found that Britton's income in 2001 was $446,385.41 and that his net monthly income for his new job was at least $6,751.

The district court stated that it "carefully review[ed] the file and all submissions in the record."  Based on this review, the court found that the referee's allowance of attorneys' fees was not in error because the court file included the financial statements and reasonable monthly expenses of both parties, and the record reflects that Norman's attorney had done a substantial amount of work.  The findings show that the district court considered the relevant factors, was familiar with the history of the case, and had access to the parties' financial records.  Thus, the court did not abuse its discretion in affirming the referee's allowance of attorneys' fees.

            Affirmed.