Opinion
No. C8-00-1837.
Filed March 20, 2001.
Appeal from the District Court, Goodhue County, File No. F5-97-1143.
Richard D. Gorman, Gorman Law Office, (for respondent)
Kristine L. Dicke, Ryan Grinde, Ltd., (for appellant)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant contends that the district court abused its discretion in failing to modify child support and maintenance and in denying her request for attorney fees. Because we see no abuse of discretion, we affirm.
FACTS
Appellant Robin Murphy and respondent Steven Murphy were married in 1978. They have two sons, N.M., age 19 but not yet emancipated, and M.M., age 17. When the marriage was dissolved in 1998, appellant received physical custody of the children; however, they spent much of that year and the next year in out-of-home placement. The district court calculated respondent's income without considering his overtime pay, found that his guideline child support obligation was $964, and ordered him to pay appellant $550 in temporary monthly maintenance for five years.
Appellant challenged the dissolution judgment in this court. She raised four issues, alleging that the district court had abused its discretion in (1) adopting respondent's financial calculations, (2) failing to apply the correct standards for imputed income and overtime income, (3) denying her permanent spousal maintenance, and (4) denying her an award of attorney fees and costs. Appellant did not raise the amount of spousal maintenance as an issue. In Murphy v. Murphy , No. C6-98-2340 (Minn.App. July 27, 1999), ( Murphy I ), we (1) reversed the district court's finding on respondent's income and remanded for the inclusion of overtime income in his net income as established by the court, (2) reversed the district court's decision on the duration of maintenance and made maintenance permanent, and (3) affirmed the district court's denial of attorney fees. Because appellant had not raised the amount of maintenance as an issue, this court did not address it. Neither the district court nor appellant took any immediate action following the release of this court's decision.
Six months later, the social services agency recommended that M.M. be discharged from placement and allowed to live with respondent, where N.M. had also chosen to live. Respondent moved for a change of physical custody and termination of his child support obligation. Appellant then moved to deny respondent's motion and to increase maintenance retroactively to July 1, 1998.
Appellant claimed to be moving for an increase in maintenance pursuant to our decision in Murphy I, but that decision did not address the amount of maintenance; appellant had challenged only the duration of maintenance, not its amount. In its memorandum following remand, the district court noted that, because appellant had not challenged the amount of maintenance and this court had not addressed it, the amount of maintenance had been tacitly affirmed. The court also noted that "[appellant's] reasonable monthly needs are met by this award when coupled with her income."
Following a hearing, the district court issued two judgments. One addressed the issue remanded by this court, i.e., the calculation of respondent's income. In its original judgment, the district court had found respondent's gross earnings for 1998 to be $62,346; his net income available for child support to be $38,559, and child support to be $964. On remand, the district court used respondent's 1998 tax returns and W-2 forms that had not been available at the time of judgment and found respondent's gross earnings to be $69,807, his net income available for child support to be $44,800, and child support to be $1,120. The district court also found that the reasonable and necessary monthly living expenses of appellant and the two children were $3,300, of which $1,100 was attributable to the children and $2,200 attributable to appellant. The judgment left child support at $964 because the children had not been with appellant during most of the relevant time, but amended temporary spousal maintenance of $550 monthly to permanent maintenance in that amount, as this court had directed in Murphy I .
The second of the two judgments (1) awarded temporary physical custody of both children to respondent, (2) found that respondent had had physical custody since March 2000, (3) terminated respondent's child support obligation and reduced his retroactive March — August 2000 obligation to $550, (4) reserved appellant's child support obligation, and (5) denied appellant's motion for increased spousal maintenance, noting that at the time of trial appellant claimed $3,822 monthly expenses for herself and two children and at the time of this motion claimed $3,675 expenses for herself alone, a difference of $147.
Appellant challenged both judgments. A special term panel of this court ordered that only the appeal from the remanded issues go forward. The only issue remanded was the calculation of respondent's income; however, appellant also challenges the district court's failure to increase child support based on respondent's increased income and the denial of her motion for attorney fees on remand.
Appellant also challenges the denial of her motion for increased maintenance, but that issue is not before us. See this court's special term order of November 28, 2000, restricting this appeal to the remanded issues. The amount of maintenance was not remanded; it was neither raised nor addressed on the prior appeal.
DECISION 1. Respondent's Income
Findings of fact based on oral or documentary evidence are not set aside unless they are clearly erroneous. Minn.R.Civ.P. 52.01. We see no error in either the district court's finding that respondent's gross income for 1998 was $69,807 or its finding that his net income was "approximately $43,000." The district court added the amounts listed on respondent's W-2 forms and arrived at the amount he listed as income on his 1998 tax form. Appellant provides figures and calculations purporting to show that respondent's actual income for 1998 was $73,376 and contends that the district court erred by not adopting them. But she does not explain what was erroneous in the district court's use of respondent's tax forms nor does she offer support for her view that a district court must adopt one party's calculations of the other party's income.
Respondent also listed $30 in taxable interest and $1,250 in taxable refunds or credits, bringing his total income to $71,087.
Appellant also objects to the district court's failure to make findings on the specific amounts deducted to arrive at respondent's net income. But this finding is commensurate with the district court's earlier unchallenged finding on deductions, and the minimal discrepancy works to appellant's advantage. The district court's calculation of respondent's income on remand is not clearly erroneous.
2. Child Support Award
A trial court has broad discretion to decide child support; this court will not reverse a decision on child support unless that decision was clearly erroneous. Rutten v. Rutten , 347 N.W.2d 47, 50-51 (Minn. 1984). The district court explained that, despite its finding on remand that respondent's income and, therefore, guideline child support were greater than it had previously found, it would not impose a retroactive increase in child support because, for most of the time appellant was receiving child support, the children were not with her but were in out-of-home placement. Appellant does not explain why she is entitled to the additional child support amount despite the fact that the children were not with her during that period. The district court's decision not to award appellant supplementary child support is not clearly erroneous.
3. Attorney Fees
In her brief, appellant also seeks attorney fees on appeal but she has not brought the motion required by Minn.R.Civ.App.P. 139.06. We therefore do not address the issue.
The decision to award attorney fees rests within the discretion of the district court. Solon v. Solon , 255 N.W.2d 395, 397 (Minn. 1977). On remand, the district court denied appellant's motion for attorney fees. In Murphy I , we affirmed the denial of appellant's original motion for attorney fees, quoting the district court's findings that neither party had the means to pay the fees, that respondent was substantially in debt and would continue to be, and that respondent had done nothing to protract or complicate the proceeding. Appellant offers no argument to support her challenge to the denial of fees on remand except to assert that "[r]espondent has ample ability to pay." But respondent now has both children, and appellant contributes nothing to their support. Finally, we are mindful that we affirmed the denial of attorney fees in Murphy I . We conclude that the district court did not abuse its discretion in denying attorney fees on remand.
Affirmed.