In re the Marriage of: Catherine A. Lawson, n/k/a Catherine A. Dunham, petitioner, Respondent, vs. Douglas L. Lawson, Appellant.

In re the Marriage of: Catherine A. Lawson, n/k/a Catherine A. Dunham, petitioner, Respondent, vs. Douglas L. Lawson, Appellant. A06-1463, Court of Appeals Unpublished, July 24, 2007.

This opinion will be unpublished and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

A06-1463

 

In re the Marriage of:

 

Catherine A. Lawson,

n/k/a Catherine A. Dunham, petitioner,

Respondent,

 

vs.

 

Douglas L. Lawson,

Appellant.

 

Filed July 24, 2007

Affirmed

Kalitowski, Judge

 

Dakota County District Court

File No. F3-99-7952

 

Nancy C. Platto, P.O. Box 257, 218 Pine Street, Chaska, MN 55318 (for respondent)

 

Jill M. Waite, 2856 Humboldt Avenue South, Suite #3, Minneapolis, MN 55408 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Douglas L. Lawson challenges the district court's award of attorney fees to respondent Catherine A. Dunham, arguing that (1) the record does not contain sufficient evidence that appellant acted in bad faith and was motivated by animus; and (2) the district court abused its discretion by not requiring respondent's attorney to comply with Rule 119 of the Rules of Practice for District Courts.  Respondent also seeks attorney fees for this appeal.  We affirm.

D E C I S I O N

            Appellant and respondent's marriage was dissolved in November 1997, and custody of the parties' two children, C.L. and A.L., was awarded to respondent.  In October 1999, appellant and respondent agreed that appellant would have sole legal and physical custody of C.L. and respondent would have sole legal and physical custody of A.L., with both parents having liberal visitation.

            After respondent moved to modify parenting time in 2003, the district court scheduled parenting time for respondent with C.L. because it found that visitation between respondent and C.L. was not occurring as ordered in 1999.  The district court noted that appellant's actions "interfere with [r]espondent's visitation of [C.L.]."

            The parties continued to have conflict regarding visitation and respondent filed motions for contempt and change of custody for C.L.  In October 2003, at the request of the parties' attorneys and the guardian ad litem, the same district court judge assumed management of all of the parties' issues to allow for greater continuity.

            The judge conducted numerous informal conferences with the parties, their attorneys, C.L.'s therapist, the guardian ad litem and noted the difficulty in dealing with appellant regarding custody matters:

[Appellant], at the initial meeting, spent over an hour blaming [respondent] for the loss of the marital homestead; accusing [respondent's] spouse of physically assaulting [C.L.]; accusing [respondent] of child abuse . . . lying . . . and being a bad mother.  [Appellant] proclaimed the parental access issues would never be resolved until he had sole physical custody of both boys, and both boys [were] relieved of any obligation to have contact with [respondent].  [Appellant] proclaimed repeatedly that both boys hate their mother and wish to reside with him.  ([Appellant] has repeated all or most of these baseless statements at every succeeding conference. These accusations will hereinafter be referred to as the ‘standard litany').

 

            On April 15, 2004, the district court issued an order stating that if C.L. failed to attend ordered therapy sessions and scheduled parenting time with respondent, the guardian ad litem would be ordered to file a Child in Need of Protection or Services (CHIPS) petition seeking foster placement for C.L.

            In June 2004, the guardian ad litem brought a CHIPS petition for C.L., alleging that:

The father has failed to comply with court orders regarding the mother's visitation with [C.L.] . . . 

 

Efforts have taken place through Guardian ad Litem[s] to have visitation proceed between [C.L.] and his mother.  That after successful visitations occur, the father is unable or unwilling to see that visitation continues.

 

Attempts to obtain psychological help for [C.L.] have been sabotaged by the father usurping the psychologist's authority and credibility in front of the child.

  

            On January 3, 2005, respondent brought motions seeking permanent sole legal and physical custody of C.L. and $5,300 in attorney fees.

            In an order dated August 30, 2005, the district court awarded respondent sole legal and physical custody of C.L. and made extensive findings of fact.  The district court found that while appellant had custody of C.L., he denied respondent parenting time for a period of five years despite the fact that she honored the access schedule for appellant's visitation with A.L.  The district court did not mention respondent's request for attorney fees.

            On February 16, 2006, appellant filed a motion seeking temporary sole physical custody of both children or liberal parenting time, a custody evaluation, and modification of his child-support obligations.  On March 2, 2006, respondent filed a responsive motion seeking attorney fees of "$1,500 for this motion and $5,200 for previous attorney's fees."

            After conducting a hearing on the motions, the district court issued an order awarding respondent $6,700 in attorney fees, explaining in its findings of fact:

[Respondent] seeks an award of attorney's fees relative to this and prior hearings in this matter.  [Respondent] commenced these post-Decree proceedings as she had been denied access to [C.L.] for several years. Inordinate amounts of time have been spent trying to work cooperatively with [appellant] to reestablish a reasonable access schedule.  These efforts proved fruitless, and the access issue was resolved only by the Guardian ad Litem filing a CHIPS Petition.

 

[Appellant] has acted in bad faith as his opposition to reasonable access time was driven solely by animus, and not the best interests of [C.L.].  An award of fees, as a sanction, is appropriate.

 

I.

            Conduct-based attorney fees may be awarded "against a party who unreasonably contributes to the length or expense of [a] proceeding" under Minn. Stat. § 518.14, subd. 1 (2006).  The district court must make findings regarding the basis for conduct-based attorney fees that "permit meaningful appellate review."  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).  The district court must identify the offending conduct, the conduct must have occurred during the proceedings, and the conduct must be found to have unreasonably contributed to the length or expense of the proceeding.  Minn. Stat. § 518.14, subd. 1; Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  A showing of bad faith is not necessary to support an award of conduct-based attorney fees.   Geske, 624 N.W.2d at 818.

            An award of conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1, "rests almost entirely within the discretion of the trial 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 record contains evidence that appellant unreasonably contributed to the length and cost of the proceedings.  The record indicates that (1) from 1999 to 2003, appellant interfered with respondent's scheduled visitation with C.L., requiring the district court to order a detailed visitation schedule for respondent and C.L.; (2) appellant did not abide by the schedule, and on April 15, 2004, the district court again ordered C.L. to attend scheduled visitation and therapy; (3) appellant again did not follow the court order; and (4) in January 2005 respondent brought a motion for custody of C.L., after appellant had failed to comply with court orders and the visitation schedule, and denied respondent access to her son for the previous six years.

            We conclude that the district court's findings are sufficient to allow appellate review and that they support the district court's conclusion that appellant unreasonably contributed to the cost and duration of the proceedings.

II.

            Appellant argues that the district court abused its discretion by awarding attorney fees because respondent failed to provide the court with an attorney affidavit, as required by rule 119.  We disagree.

            A motion for attorney fees of at least $1,000 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 under Minn. R. Gen. Pract. 119.01-.02.  But when a district court "is familiar with the history of the case and has access to the parties' financial information" it may waive the rule 119 requirement.  Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999).

            Here, the district court had extensive knowledge of the history of the case because a single judge presided over it since 2003 for the specific purpose of providing continuity.  And although the record is less clear regarding the district court's access to the parties' financial information, knowledge of the parties' financial information is not relevant when the award of attorney fees is for conduct- rather than need-based attorney fees.  Geske, 624 N.W.2d at 818.

            In Gully v. Gully, the Minnesota Supreme Court affirmed a district court's grant of need-based attorney fees despite the lack of an attorney affidavit.  Gully, 599 N.W.2d 814, 826.  The court based its holding on the advisory committee's comments to rule 119 stating that the rule "is not intended to limit the court's discretion, but is intended to encourage streamlined handling of fee applications."  Id. (quotation omitted).  Because the holding in Gully is based on need- rather than conduct-based fees and relies on the premise that rule 119 was not intended to limit a court's discretion in awarding fees, we conclude that a district court familiar with the history of a case may waive the requirements of rule 119 in the context of conduct-based fees.

            Here, because the awarded fees were conduct-based and the district court had extensive knowledge of the proceedings between appellant and respondent, the district court did not abuse its discretion by waiving the requirements of rule 119.

III.

            Finally, respondent seeks attorney fees on appeal.  A motion for attorney fees must be made in a separate motion to this court.  See Minn. R. Civ. App. P. 139.06, subd. 1.  Respondent brought a separate motion for attorney fees, which was denied because it did not identify any statutory or contractual basis for an award of appellate fees and was not supported by legal argument or an affidavit of respondent or her counsel.

            Respondent's brief on appeal does contain arguments supporting the award of attorney fees, but because the separate motion for attorney fees has been denied, respondent's request for fees on appeal is not properly before this court.  Because respondent's motion was denied without prejudice to the right to make a properly supported motion, respondent may bring such a motion within 15 days after the filing of this opinion.  See Minn. R. Civ. App. P. 139.06.   

            Affirmed.