Modifying Child Support and Spousal Maintenance, and Awarding Attorneys’ fees
The recent case of Ferris v. Szachowicz, #A12-2154, A13-0558 (Minn. Ct. App. Dec. 2, 2013) dealt with an ex-husband’s effort to reduce the amount of spousal maintenance and child support because his business, plastic surgery, allegedly suffered in the economic downturn. Because the statute provides for reducing spousal maintenance because of changed circumstances, he argued that the reduction in plastic surgeries, the recession, increasing tax arrearages, and business loan debt met the statutory criteria for changed circumstances.
The Court of Appeals began by noting that, on motions to modify child support, the court has broad discretion and its decision will only be reversed if it is against both the facts in the record and logic. Using this standard the court affirmed the district court’s decision. Finding it was supported by the record and the law. The court held that the district court acted within its discretion in calculating the husband’s income using a four-year average although the wife argued that including 2007 income was unreasonable. In this case, the husband had wanted to use a five-average and the wife preferred a three-year average, so the court’s decision to use a four-year average actually split the difference in the party’s position. The court noted that it would not include 2011 income because the data was incomplete. Although the wife argued that the income was on an upward trajectory, so included the year 2007 pulled the average down too far, the court held that the district within its discretion in choosing a time range for calculating an average when income fluctuates.
The court affirmed the district court’s decision denying the ex-husband’s first motion to modify spousal maintenance. Under Minnesota Statute 518 Section 39A, subd. 2 (2013), a party needs to show both a substantial change in circumstances and that the changed circumstances render the existing award both unreasonable and unfair. The court found the district court was within its discretion to find that the ex-husband failed to show a substantial change in circumstances because he did not produce loan documents to support his testimony about loan repayments.
The court then affirmed the district court’s decision granting the ex-husband’s second motion to modify spousal maintenance, finding the court made a correct decision despite procedural flaws. The court found that using a second motion to make the decision was an incorrect procedure because of the legal doctrine of res judicata. Nonetheless, the court found that the court could consider the evidence that should have been submitted with the first motion because rulings on support are not final decisions, and courts are required to respond to individual circumstances. The court emphasized that there had been substantial changes in the husband’s income from the time when the support order was first entered, so that the income was inadequate to support the parties’ lifestyle during marriage. The court also noted that the ex-wife was not working to her potential, in determining that continuing maintenance at the existing level was both unfair and unreasonable.
The court also upheld the district court’s denial of need-based attorney fees, provided in Minnesota Statute Section 518.14, subdivision 1 (2013). Although the court is required to consider the statutory factors, the lack of specific findings on each factor is not sufficient to reverse the decision as long as the decision indicates that the record included the parties’ finances and the court considered the relevant factors. The court noted that the district court had indeed made many findings on the parties’ finances, and had found that the wife had the ability to earn $42,500 annually, if she worked full-time.
The court also upheld the denial of attorney fees based on the husband’s conduct. Under the same fee provision, the court has discretion to award attorney’s fees on a party who unreasonably increases the length or expense of the proceeding. The court held that it was within the trial court’s discretion to consider the fact that the ex-wife’s refusal to agree to the appointment of “a neutral” in determining that her actions also increased the length or expense of the proceeding. Further, the ex-husband’s discovery requests related to the statutory grounds for modification, so they were not unreasonable.
Anyone who is considering moving for additional or reduced spousal maintenance should consult with an experienced family law attorney.