In re the Marriage of: Carmen C. Redmond, petitioner, Appellant, vs. Roger W. Redmond, Sr., Respondent.

This opinion will be unpublished and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

A04-245

 

 

In re the Marriage of:

Carmen C. Redmond, petitioner,

Appellant,

 

vs.

 

Roger W. Redmond, Sr.,

Respondent.

 

 

Filed December 7, 2004

Affirmed in part, reversed in part, and remanded

Parker, Judge*

 

Hennepin County District Court

File No. DC 191958

 

 

Sandra K. Kensy, 5430 Carlson Road, St. Paul, MN 55126 (for appellant)

 

Thomas L. Steffens, Marcus P. Beyer, Steffens & Rasmussen, 300 Southdale Place, 3400 West 66th Street, Edina, MN 55435 (for respondent)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

In this marriage dissolution proceeding, appellant-wife Carmen Redmond challenges the district court's order reducing respondent-husband Roger Redmond Sr.'s maintenance obligation and ordering that he pay maintenance arrears and a portion of wife's attorney fees.  We affirm in part, reverse in part, and remand.

D E C I S I O N

1.         Spousal maintenance

Wife argues the district court abused discretion in calculating husband's income for spousal maintenance purposes and in excessively reducing husband's maintenance obligation based on that calculation.  The district court has broad discretion in determining whether to modify a spousal maintenance award.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  "There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused its discretion."  Id.

            Wife maintains the district court erroneously determined husband's income by considering only his 2003 salary rather than by averaging his income over the previous three years, as it had done in establishing the maintenance award in the original judgment and decree and in assessing husband's prior requests for a reduction in maintenance.

            But the judgment does not provide that husband's income must be calculated through averaging.  At the time of the judgment in 1996, the district court calculated husband's income through averaging because his annual income at the time was subject to significant fluctuations.  In the order being appealed, the district court foundbased in part on husband's testimonythat his income was no longer subject to fluctuation and that averaging was therefore unnecessary.  We will not, as wife urges, reject a finding with reasonable support in the record.  See Minn. R. Civ. P. 52.01 (stating that "due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses" and will not set aside findings of fact "unless clearly erroneous").

            We also disagree with wife's contention that the district court was required to determine husband's income through averaging because this court has previously held, in affirming the denial of his September 1998 motion to modify his maintenance obligation, that "[u]nder the circumstances, the district court did not abuse its discretion by averaging [husband's] income."  Redmond v. Redmond, No. C4-99-676, 1999 WL 809767, at *1 (Minn. App. Oct. 12, 1999).  Our determination that the district court did not in that instance abuse discretion by averaging husband's income did not bind the district court to do likewise under changed circumstances or otherwise establish a law of the case with respect to the ongoing manner of calculating husband's income.

            Wife next argues the district court abused discretion by determining a reduction of husband's monthly maintenance obligation was warranted and in calculating the amount of the reduction.  The 1996 judgment contained a specific standard for determining whether maintenance should be modified.  The district court found, based upon record evidence, that husband met the standard set forth in that judgment.

But we agree with wife with respect to the amount of the modification, which, as wife observes, is disproportionate to the decrease in husband's income found by the district court.  Minn. Stat. § 518.64, subd 2(c) (2002), provides that on a motion for modification of maintenance, the court "shall apply" the spousal maintenance factors set forth in Minn. Stat. § 518.552 (2002) to determine the amount of the modification.  The district court specifically stated that the modification was based only upon the standard set forth in the original judgment and did not consider the requisite statutory factors in calculating the amount of the modification.  We therefore reverse the maintenance modification and remand for reconsideration and express findings as required by Minn. Stat. § 518.64, subd 2(c).  See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (remanding maintenance award where the district court made inadequate findings).

            2.         Husband's maintenance arrears

            Wife next argues that the district court abused discretion with respect to husband's payment of maintenance arrears by (1) reducing the amount of arrears by the amount husband contributed to wife's purchase of an automobile in March 1997 and (2) ordering husband to pay interest on the arrears beginning August 19, 2003, rather than June 2001.

            As to wife's purchase of the automobile, the 1996 judgment provided that husband "shall contribute up to $20,000 toward [wife's] purchase of a 1994 or 1995 automobile" and that wife "shall use the [parties'] 1990 Cadillac as a trade-in" toward that purchase.  In March 1997, the parties purchased a Chevrolet Tahoe automobile for wife's use; as required by the judgment, wife traded in the 1990 Cadillac toward the purchase and husband contributed $28,428.

In the December 2003 order, the district court found that although husband had contributed toward the Tahoe purchase, he had been under no obligation to do so, and was therefore entitled to an arrears reduction of $28,428.  The district court's finding that husband was not obligated to contribute to the Tahoe purchase is contradicted by the 1996 judgment's clear requirement that he do so.  There is no record evidence that husband made such a contribution with respect to any vehicle other than the Tahoe.  And Appendix A of the judgment provides that the cost of gifts and purchases may not be used to fulfill a maintenance obligation.  It is therefore inappropriate to reduce husband's arrears by the $28,428 he contributed to the Tahoe, in light of the $20,000 obligation established by the original judgment.  But because husband contributed $8,428 more than required by the judgment to the purchase of the Tahoe, the $20,000 to be added to his arrears must be reduced by $8,428.  We therefore conclude the total arrears due must be increased by $11,572.

            Following oral argument in this matter, husband submitted a letter and affidavit concerning the Tahoe purchase and the arrears reduction.  Minn. R. Civ. App. P. 128.02, subd. 4, provides that "[n]o further briefs may be filed except with leave of the appellate court."  Because husband neither sought nor obtained leave to submit the communication, we did not consider it in reaching our conclusion.  See Martinez v. Minn. Zoological Gardens, 526 N.W.2d 416, 417 n.1 (Minn. App. 1995) (refusing to consider documents submitted after oral argument where leave to submit additional briefing was neither requested nor granted), review denied (Minn. Mar. 29, 1995).   

            As to the accrual date of interest on the arrears, wife argues that because husband stopped making full maintenance payments in January 2001, his arrears properly began accruing in June 2001, and the district court erred by ordering him to pay interest on the arrears beginning in August 2003.  Wife contends that allowing husband to avoid over two years' interest on his arrears in effect rewards him for refusing to honor his maintenance obligations.  But we regard determining the effective date of interest on maintenance arrears as a matter particularly within the district court's broad discretion in determining maintenance modifications.  We affirm the district court's decision concerning the date upon which interest began accruing on the arrears.

3.         Attorney fees

Wife argues the district court "rewarded" husband by awarding her only $20,000 in attorney fees.  Under Minn. Stat. § 518.14, subd. 1(3) (2002), the district court "shall" award attorney fees "provided it finds . . . that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them."  Id.  Need-based fee awards are discretionary with the district court.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  A court may also, at its discretion, award conduct-based attorney fees against a party who unreasonably contributes to the length or expense of the litigation.  Id.

The district court awarded wife conduct-based attorney fees but did not make findings to determine the presence of factors requiring need-based attorney fees.  We therefore remand this issue for adequate findings and a determination of whether wife must be awarded need-based attorney fees.  See Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991) (remanding an award of attorney fees lacking adequate findings of fact).

            Affirmed in part, reversed in part, and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.