Opinion
No. C3-01-2159
Filed August 13, 2002.
Appeal from the District Court, Kanabec County, File No. F793503.
Michael G. Schultz, (for respondent)
John E. Mack, (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Foley, Judge.fn_
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Gerald Allen Tait challenges the district court's award of attorney fees to respondent Judith Ann Tait, arguing that respondent failed to comply with documentation requirements of Minn.R.Gen.Pract. 119.02, and that the record does not support an award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2000). Appellant also contends that the court's entry of a judgment for maintenance arrears is so excessive that it is oppressive. We affirm.
DECISION I.
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); see also Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987) (stating award of attorney fees is within discretion of district court).
Appellant contends that the district court abused its discretion by awarding respondent attorney fees incurred in bringing her motion to find appellant in contempt. We disagree.
The district court found that respondent was entitled to attorney fees under Minn. Stat. § 588.02 (2000) stating that appellant "shall pay to [respondent] the sum of $1,000.00 as and for attorney's fees for the prosecution of the present contempt."
But Minn. Stat. § 588.02 states:
Every court and judicial officer may punish a contempt by fine or imprisonment, or both. In addition, when the contempt involves the willful disobedience of an order of the court requiring the payment of money for the support or maintenance of a minor child, the court may require the payment of the costs and a reasonable attorney's fee, incurred in the prosecution of the contempt, to be paid by the guilty party.
(Emphasis added.) Thus, this statute does not allow the district court to award attorney fees when the contempt involves the willful disobedience of a court order for spousal maintenance, as is the case here.
Although the district court erred by ordering appellant to pay respondent's attorney fees under Minn. Stat. § 588.02, the record still supports the award of attorney fees in this matter. Respondent asked the district court for attorney fees "as may be just and equitable." A district court shall award attorney fees, costs, and disbursements if it finds
(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
Minn. Stat. § 518.14, subd. 1 (2000). Although the district court did not make specific findings under this statute, a lack of specific findings on the statutory factors for a need-based fee award under Minn. Stat. § 518.14, subd. 1, is not fatal to an award where review of the order reasonably implies that the district court considered the relevant factors and where 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) (quotation omitted).
Here, the district court's findings regarding the previous litigation and appellant's ability to meet his maintenance arrearages demonstrates the court's familiarity with the history of the case. Moreover, the fact that the district court found appellant in contempt, indicates that respondent asserted her rights in good faith. And the fact that the court found appellant had the ability to meet his maintenance arrearages indicates that appellant has the means to pay for respondent's attorney fees. Finally, there is evidence in the record, including respondent's need for spousal maintenance, that establishes her need for assistance in asserting her rights. Thus, we cannot say the district court abused its discretion by awarding respondent attorney fees in this matter.
Appellant contends that even if a fee award is justified, respondent failed to file the proper records to demonstrate the amount of the award. We disagree. Minn. Gen. R. Prac. 119.02 states:
The motion [for fees] shall be accompanied by an affidavit of any attorney of record which establishes the following:
1. A description of each item of work performed, the date upon which it was performed, the amount of time spent on each item of work, the identity of the lawyer or legal assistant performing the work, and the hourly rate sought for the work performed;
2. The normal hourly rate for each person for whom compensation is sought * * *
4. That the affiant has reviewed the work in progress or original time records, the work was actually performed for the benefit of the client and was necessary for the proper representation of the client, and that charges for any unnecessary or duplicative work has been eliminated from the application or motion.
In Gully v. Gully the supreme court recognized that rule 119 is not intended to limit the court's discretion, but is intended to encourage streamlined handling of fee applications and to facilitate filing of appropriate support to permit consideration of this issue.
Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999) (quotation omitted). Further, the Gully court held that it was not an abuse of discretion for the district court to waive the rule 119 requirements where the district court is familiar with the case and has access to the parties' financial records. Id.
In this case, respondent submitted a motion that stated:
I have incurred eight hours of attorney time in the preparation of this motion and anticipate another four hours through the hearing of this motion on May 14, 2001.
I have been in the general practice of law for the last fifteen years and have a standard hourly billing rate fee for these matters of $175.00 per hour. I would anticipate fees associated with this motion of no less than $2,100.00.
Because of the district court's familiarity with the case, the attorney's efforts, and the financial situation of the parties, we conclude the district court did not abuse its discretion by awarding respondent attorney fees.
II.
We review a district court's maintenance award under an abuse of discretion standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). For this court to conclude the district court abused its broad discretion with respect to an award of spousal maintenance, the district court's fact findings must be "against logic and the facts on [the] record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).
Appellant contends that the district court's award for maintenance arrears was based on "figures so irrational and oppressive that it must be reversed and refigured[.]" We disagree. Appellant cites no authority to support this argument. Instead, appellant simply points out that he has little money and that his maintenance payments leave him with only $107.41 each month to live on. But appellant never appealed the spousal maintenance awards that led to his arrearages. And because appellant rests on mere assertion and presents no evidence or argument supporting his position, we need not address it. See Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating "[a]n assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection" (citations omitted)).