Opinion
No. A04-2079.
Filed June 7, 2005.
Appeal from the District Court, Hennepin County, File No. Dc 271372.
Gregory J. Holly, McGuigan Holly, P.L.C., (for respondent).
Marc G. Kurzman, Carol M. Grant, Kurzman, Grant Ojala Law Office, (for appellant).
Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Crippen, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant Valdemia Dema challenges the district court's order denying her motion for an increase in child support and child care contribution and awarding attorney fees to respondent Keh Dema. Because the district court's findings are not clearly erroneous and its decision is not an abuse of discretion, we affirm.
FACTS
The parties are the parents of four minor children, ages five to eleven years. Under the terms of the May 2003 dissolution judgment, the parties share joint legal custody, but appellant has sole physical custody of the children. Respondent was ordered to pay $1,650.93 in monthly child support and $190.80 per month for child care. Appellant was made solely responsible for all private school tuition for the children. The judgment was silent as to the allocation of dependency exemptions.
In March 2004, appellant moved to increase child support and the child care contribution. Respondent moved to allocate the dependency allowances between the parties. The support motion was heard four days before the dependency exemption motion was heard.
The district court found that respondent's net monthly income had increased by $330 and that his monthly expenses had increased by approximately $100. The court further found that appellant's monthly expenses had increased by $430 but that her net monthly income had increased by $300. The court excluded the children's private school tuition from appellant's monthly expenses.
Based on these findings, the district court concluded that there had been no substantial change in circumstances that made the prior support order unreasonable and unfair, and that the increase over the prior order would be less than the rebuttable presumption set out in Minn. Stat. § 518.64, subd. 2(b) (2004) (presuming a substantial change in circumstances where increase over prior award would be 20% and $50 greater). The court awarded respondent $950 in conduct-based attorney fees, determining that there was no basis for appellant's motion.
DECISION
The district court's order modifying child support is reviewed for an abuse of discretion. Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002). Such an abuse occurs when a decision is made "against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Findings are reviewed for clear error. Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn.App. 2002).
1.
Appellant contends that the district court's calculations of income are incorrect, arguing that the court improperly determined respondent's medical deductions and failed to attribute dividend income to him. The court's determination of an obligor's income is a finding of fact that will not be altered on appeal unless clearly erroneous. Id.
Because substantial evidence exists in the record to support the district court's findings, those findings are not clearly erroneous. Respondent's income and deductions are documented in the record and respondent's dividend income has not changed since the prior order. Because respondent's income over expense has increased only minimally, there is no increase in respondent's resources that would support a finding of a substantial change in circumstances.
2.
Appellant argues that there has been a substantial increase in the children's needs since entry of the prior order. The district court found that the increase in appellant's expenses over income, amounting to about $130, did not represent a substantial increase in needs. The court's findings are supported by the record and are not clearly erroneous. See id. Although appellant argues that the increase in the children's private school tuition represents a dramatic change in circumstances, the original order made appellant responsible for the private school tuition and the entry of another child into the school was certainly contemplated. This increase in tuition is not a substantial change in circumstances.
3.
Appellant contends that the district court's order of May 13, 2004, dividing the dependency exemptions between the parties, represents a substantial change in circumstances. But appellant has not sought review of that order and has not briefed any basis for correcting this order. Issues not briefed on appeal are waived. Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).
4.
The district court may award attorney fees against a party who unreasonably contributes to the length or expense of a proceeding. Minn. Stat. § 518.14, subd. 1 (2004). "An award of attorney fees 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).
Appellant's motion for modification was made just ten months after entry of the original support order and is based on foreseeable or insubstantially increased expenses and a relatively modest increase in respondent's resources. Sufficient evidence exists in the record to support the district court's finding that appellant brought this motion knowing that there was not a substantial basis for an increase in support. We therefore conclude that the court did not abuse its discretion by awarding respondent attorney fees.