In re the Custody of M. M. L. Nathan James Sands v. Sue Mae Lovick, Dakota County

• Court: Court of Appeals of Minnesota
• Decided: December 27, 2016
• Docket: A15-1807
• Status: Unpublished

Opinion

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA IN COURT OF APPEALS A15-1807

In re the Custody of M. M. L. Nathan James Sands, petitioner, Appellant,

vs.

Sue Mae Lovick, Respondent,

Dakota County, Respondent.

Filed December 27, 2016 Reversed and remanded; motion denied Halbrooks, Judge

Dakota County District Court File No. 19HA-FA-08-907

Roxanne R. Karl, Roxanne R. Karl Law Office, Burnsville, Minnesota (for appellant)

James C. Lofstrom, Lofstrom Law Office, Eagan, Minnesota (for respondent Sue Mae Lovick)

James C. Backstrom, Dakota County Attorney, Lisa D. Kontz, Assistant County Attorney, West St. Paul, Minnesota (for respondent Dakota County)

Considered and decided by Halbrooks, Presiding Judge; Rodenberg, Judge; and

Hooten, Judge. UNPUBLISHED OPINION

HALBROOKS, Judge

Appellant Nathan James Sands challenges the district court’s order issuing new

purge conditions on its contempt order and awarding attorney fees to respondent Sue Mae

Lovick, arguing that the order contains inadequate findings and that the district court

improperly imputed his income. Lovick moves this court for conduct-based attorney fees

in connection with this appeal. We reverse and remand the district court’s orders and

deny Lovick’s motion.

FACTS

Sands and Lovick are the parents of one child, M.M.L. In 2004, the district court

awarded joint legal custody of M.M.L. to Sands and Lovick and sole physical custody to

Lovick. From 2004 to 2014, cost-of-living adjustments increased Sands’s child-support

obligation to $664 per month. By 2014, Sands owed approximately $17,000 in

arrearages. His child-support obligation increased to $685 per month on May 15, 2015;

at that time, he was approximately $24,000 in arrears.

In 2014, Lovick moved the district court to find Sands in civil contempt due to

unpaid arrearages. Sands obtained hourly employment from June 2014 until January

2015, when his employment was involuntarily terminated. Immediately following the

termination of Sands’s employment, Lovick renewed her motion to hold Sands in civil

contempt for failure to pay child support and moved the district court for need- and

conduct-based attorney fees. In February 2015, Sands moved the district court to modify

his child-support obligation; he then applied for unemployment benefits.

2 After a hearing on Lovick’s contempt motion in May 2015, the district court

issued a contempt order that was amended on July 9, 2015, to correct substantive and

clerical errors. In its amended order for contempt, the district court ordered that Sands be

confined to the Dakota County Jail for a period not to exceed 90 days but stayed

confinement for two years if Sands complied with the following purge conditions:

a. Commencing immediately, and based on Mr. Sands’ offer, 100% of Mr. Sands’ unemployment check payments shall be paid to Respondent, Ms. Lovick. The Court notes that Dakota County may only be able to withhold 60% of the unemployment checks. If Dakota County cannot withhold 100% of Mr. Sands’ unemployment checks, Mr. Sands shall issue the remainder of the 100% of his unemployment checks to the Minnesota Payment Center, to then be issued to Ms. Lovick.

b. Mr. Sands shall find and begin to work with a work readiness program to engage in a good faith effort to find employment.

At a review hearing in August 2015, the district court addressed Sands’s motion to

modify his child-support obligation and acknowledged that Sands was in compliance

with the purge conditions in the contempt order. Because Sands’s unemployment

benefits were about to expire, the district court issued an order in September that

established “new conditions on Mr. Sands’ stayed sentence of contempt from the

amended order dated 7/9/2015.” These new conditions altered Sands’s child-support

obligation, requiring him to pay $528 per month, including arrears payments. The district

court also ordered Sands to “pursue seasonal employment in the event that he does not

find a full-time position.” This appeal follows.

3 DECISION

I.

As a threshold matter, respondent Dakota County argues that the district court’s

September order is not appealable because it only modifies purge conditions of an

existing conditional contempt order and does not modify Sands’s child-support

obligation. A conditional contempt order is not appealable because it is not a final order.

Becker v. Becker, 300 Minn. 512, 513, 217 N.W.2d 849, 850 (1974). But an order that

modifies child-support obligations is appealable. Minn. R. Civ. App. P. 103.03(h).

Minn. Stat. § 518A.26 (2014) does not define what constitutes a child-support-

modification order. But we may look beyond the label of an item and identify it based on

its nature or purpose. See, e.g., Graphic Arts Educ. Found. v. State, 240 Minn. 143, 146,

59 N.W.2d 841, 844 (1953) (“[T]he labeling of a conclusion of law as a ‘finding of fact’

is not determinative of its true nature, and it need not be considered a finding by the

appellate court.”); Kellen v. Kellen, 367 N.W.2d 648, 650-51 (Minn. App. 1985)

(concluding that shifting the costs of visitation from the non-custodial parent to the

custodial parent essentially modifies the terms of child support).

Here, the district court’s order “serves to issue new conditions on Mr. Sands’

stayed sentence of contempt from the amended order dated 7/9/2015.” But it also

modified his child-support obligation from $685 per month, excluding arrears payments,

to $528 per month, including arrears payments. Moreover, both parties addressed

arguments with respect to Sands’s motion to modify his child-support obligation at the

August review hearing, and the district court stated that the new amount of Sands’s child

4 support would be $440 per month. Because the order changed Sands’s child-support

obligation and the district court acknowledged the new amount on the record, we

conclude the September order effectively modified Sands’s child-support obligation and

is appealable. Moreover, on this record, it is clear that the questions of child support and

contempt are, to a significant degree, inseparable. Therefore, in the interests of justice

and judicial economy, we will review aspects of the contempt-related portions of the

district court’s order. See Minn. R. Civ. App. P. 103.04 (allowing appellate courts to

address questions in the interests of justice); Wesley v. Flor, 806 N.W.2d 36, 41 (Minn.

2011) (addressing a question in the interests of judicial economy).

Turning to the substance of the September order, we review its contents and

determine whether the district court abused its discretion. Sands first argues that, because

he purged the conditions of the contempt order, the district court abused its discretion by

issuing new conditions that imposed future obligations and by failing to support its

September order with the requisite Hopp findings. See Hopp v. Hopp, 279 Minn. 170,

156 N.W.2d 212 (1968). The county argues that the district court was not required to

make Hopp findings because the September order modified the purge conditions of the

existing contempt order, and those modified purge conditions were proper. We can only

reverse a district court’s contempt order if we determine that the district court abused its

discretion. Mower Cty. Human Servs. ex rel. Swancutt v. Swancutt, 551 N.W.2d 219, 222

(Minn. 1996).

The July contempt order stayed Sands’s confinement for a period of two years. At

the August review hearing, the district court stated that Sands “was in compliance with

5 [the purge conditions in the July order].” And it also stated, “The [c]ourt will also, at this

point, continue the stay on the contempt. But, certainly, the parties can bring information

forward depending upon how these obligations are met in the future.” In the September

order, the district court issued new conditions on Sands’s stayed sentence of contempt.

While Sands was in compliance with the purge conditions at the time of the August

review hearing, we conclude that he did not purge himself of the July contempt order,

and the September order modified the purge conditions on the existing contempt order

because it related back to the district court’s stayed period of confinement.

Sands relies on a law review article to assert that contempt-purge conditions may

not pertain to future obligations and that the district court abused its discretion by

requiring him to make future child-support payments. See D.D. Wozniak & Cynthia

Lehr, Dealing with a Double-Edged Sword: A Practical Guide to Contempt Law in

Minnesota, 18 Wm. Mitchell L. Rev. 7, 19 (1992). But as the supreme court noted in a

case decided after the publication of the article, district courts may include, as a purge

condition, the requirement to make future court-ordered child-support payments.

Swancutt, 551 N.W.2d at 222-23. Because the September order modified the purge

conditions of the district court’s existing contempt order and because these new purge

conditions were proper, we conclude that the district court did not abuse its discretion by

including as a purge condition the requirement that Sands make all future child-support

payments.

Sands also argues that the district court clearly erred by improperly imputing

income to Sands without evidentiary support. We review findings of fact, including a

6 district court’s determination of income and whether a parent is voluntarily unemployed,

for clear error. Newstrand v. Arend, 869 N.W.2d 681, 685 (Minn. App. 2015), review

denied (Minn. Dec. 15, 2015); Welsh v. Welsh, 775 N.W.2d 364, 370 (Minn. App. 2009).

A finding of fact is clearly erroneous if this court “is left with the definite and firm

conviction that a mistake has been made.” Vangsness v. Vangsness, 607 N.W.2d 468,

472 (Minn. App. 2000) (quotation omitted).

A district court must calculate a child-support obligation based on potential

income if the parent is “voluntarily unemployed, underemployed, or employed on a less

than full-time basis, or [if] there is no direct evidence of any income.” Minn. Stat

§ 518A.32, subd. 1 (2014). And the district court must make written findings in every

case in which it computes child-support obligations that include, in part, each parent’s

gross income. Minn. Stat. § 518A.37 (2014). Potential income is calculated according to

one of three methods:

(1) the parent’s probable earnings level based on employment potential, recent work history, and occupational qualifications in light of prevailing job opportunities and earnings levels in the community; (2) if a parent is receiving unemployment compensation or workers’ compensation, that parent’s income may be calculated using the actual amount of the unemployment compensation or workers’ compensation benefit received; or (3) the amount of income a parent could earn working 30 hours per week at 100 percent of the current federal or state minimum wage, whichever is higher.

Minn. Stat § 518A.32, subd. 2 (Supp. 2015).

7 Here, the district court stated, “The Court would feel that a wage of $20 an hour at

full-time is an attainable wage by Mr. Sands, a little bit above minimum wage, but

perhaps not at his prior wages,” and it ultimately imputed income to him “in the amount

of $20/hour in a 40 hour work week, resulting in monthly imputed income of $3,464.00.”

The district court was within its discretion to calculate Sands’s potential income because

it determined that Sands “has been voluntarily unemployed during at least part of” the

time period relating to these child-support proceedings. But it was limited to calculating

Sands’s income potential based on his probable earnings or minimum wage because, at

the time of the August review hearing, Sands’s unemployment-compensation benefits

were nearly exhausted.

If the district court calculated Sands’s potential income based on minimum wage,

it clearly erred because it imputed Sands’s income at nearly double the $13.50 per hour

minimum-wage calculation. See id. Similarly, the district court likely erred if its

calculation was based on probable earnings because Sands’s imputed income does not

reflect his recent work history. Sands’s gross income in 2014 was $12,567.60, which is

much less than the income potential calculated by the district court. And the county

acknowledged that $13 per hour was his previous wage based on wage-match history.

Because the written findings in the September order modifying Sands’s child-

support obligation are incomplete and because it is unclear under which subdivision the

district court calculated Sands’s income potential, we remand this case to the district

court to include additional findings to support its September order and calculations.

8 II.

Sands argues that the district court abused its discretion by awarding attorney fees

to Lovick because it failed to support the award with any findings or legal authority. This

court reviews an award of attorney fees under the abuse-of-discretion standard. Gully v.

Gully, 599 N.W.2d 814, 825 (Minn. 1999). “Remand for additional findings is

appropriate when the district court fails to make adequate findings.” Hemmingsen v.

Hemmingsen, 767 N.W.2d 711, 718, 720 (Minn. App. 2009), review granted (Minn. Sept.

29, 2009), and appeal dismissed (Minn. Feb. 1, 2010).

The district court may award attorney fees based on conduct, need, or the

enforcement of child support. The district court shall award need-based attorney fees 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 (2014). The district court may award conduct-based

attorney fees “against a party who unreasonably contributes to the length or expense of

the proceeding.” Id. A child-support obligee may also recover attorney fees from the

obligor to enforce a child-support judgment if the arrearages are at least $500 and at least

90 days past due. Minn. Stat. § 518A.735(a) (2014). But a district court’s discretion to

award attorney fees related to the enforcement of child support is limited:

9 [T]he only issues to be determined by the court are whether the attorney fees or collection costs were reasonably incurred by the obligee for the enforcement of a child support judgment against the obligor or the validity of the child support judgment on grounds limited to mistake of fact. The fees and costs may not exceed 30 percent of the arrearages.

Minn. Stat. § 518A.735(d) (2014).

The district court ordered Sands to pay Lovick $9,952 in attorney fees. The

district court found that Sands’s parents are paying his attorney fees, that Lovick’s

attorney fees have been generated due to Sands’s failure to pay child support, and that

Sands “has been voluntarily unemployed during at least part of that time period.” But the

record does not identify which statutory authority the district court relied on to award

Lovick attorney fees. See Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001)

(“Because there are different requirements for a fee award, depending on the authority

upon which the award is based, a proper review requires that the district court identify the

authority for its fee award.”).

If the district court awarded Lovick need-based attorney fees, its findings do not

demonstrate that it considered Lovick’s means to pay. Moreover, it is unclear whether

the district court awarded conduct-based attorney fees or attorney fees to enforce child-

support payments because its justification awarding attorney fees was limited to finding

that Lovick’s attorney fees have been generated “in response to [Lovick] not getting child

support.” And, if the award of attorney fees was based on child-support enforcement, the

district court’s award is $2,553.54 greater than the amount authorized by statute because

30% of Sands’s $24,661.54 arrearages is $7,398.46.

10 Because it is unclear under which statutory authority attorney fees were awarded,

we remand the award of attorney fees to the district court so it can make the requisite

findings.

III.

On appeal, Lovick seeks an additional $4,452.50 in attorney fees, arguing that

Sands is unreasonably contributing to the length and expense of the appellate process.

We have discretion to award attorney fees on appeal. Case v. Case, 516 N.W.2d 570,

574 (Minn. App. 1994). And we may award conduct-based attorney fees “against a party

who unreasonably contributes to the length or expense of the proceeding.” Minn. Stat.

§ 518.14, subd. 1.

Here, Lovick claims that the continuation of this appeal is unreasonable and

unnecessary because she concedes the issues raised by Sands. But the county filed a

responsive brief after Lovick submitted her letter, in which it did not concede the issues.

Sands did not move this court for any extensions; nor is there any indication that he

unnecessarily delayed the appellate process. Additionally, it is unclear how Sands

contributed to expenses incurred by Lovick’s attorney, which may be excessive, because

she did not file a responsive brief. Because we conclude that Sands did not unnecessarily

contribute to the length or expense of this proceeding, we deny Lovick’s motion for

conduct-based attorney fees in connection with this appeal.

We reverse the district court’s September order and Lovick’s award of attorney

fees and remand these orders to the district court for further findings as required. The

September order properly imposed purge conditions on Sands but modified his child-

11 support obligation without adequate findings. The district court has discretion to

determine whether it needs to reopen the record in order to make sufficient findings. See

Frank-Bretwisch v. Ryan, 741 N.W.2d 910, 917 (Minn. App. 2007). We also deny

Lovick’s motion for conduct-based appellate attorney fees.

Reversed and remanded; motion denied.