Bessenbacher v. Bessenbacher

In re the Marriage of: Robert William Bessenbacher, petitioner, Appellant, v. Olga Sergeyevna Bessenbacher, Respondent,County of Itasca, intervenor, Respondent.

A17-0339

STATE OF MINNESOTA IN COURT OF APPEALS

August 21, 2017

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).

Affirmed

Worke, Judge

Itasca County District Court

File Nos. 31-FA-14-2431, 31-FA-14-2754

Robert William Bessenbacher, Grand Rapids, Minnesota (pro se appellant)

Rachel L.F. Weis, Legal Aid Service of NE Minnesota, Grand Rapids, Minnesota (for respondent Olga Sergeyevna Bessenbacher)

John J. Muhar, Itasca County Attorney, Jesse Powell, Assistant County Attorney, Jennifer Ryan, Assistant County Attorney, Grand Rapids, Minnesota (for respondent County of Itasca)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Larkin, Judge.

UNPUBLISHED OPINION

WORKE, Judge

Appellant-father challenges the district court's denial of his motion to modify spousal maintenance and child support. He also argues that the district court must reopen the judgment and decree under Minn. Stat. § 518.145, subd. 2 (2016), and that the district court abused its discretion by ordering him to pay conduct-based attorney fees. We affirm.

FACTS

Appellant-father Robert William Bessenbacher and respondent-mother Olga Sergeyevna Bessenbacher married in 1997 and divorced in 2016. They have seven minor children. The oldest child was born in 2000 and the youngest in 2014. During the dissolution proceedings, the parties agreed that the children's primary residence would be with mother. They also agreed that their oldest child, who lived with father at the time, would "be transitioned back into [m]other's home at [the child's] pace."

After a court trial on the remaining issues, the district court issued a judgment and decree on March 10, 2016. The district court found that father's monthly gross income was $7,662. Father claimed monthly expenses of $3,524, and the district court found his reasonable expenses to be $3,059. Mother had no income and had not been gainfully employed for 15 years. She was the children's primary caretaker and homeschooled the children. The district court declined to impute income to mother for purposes of determining child support.

The district court ordered father to pay $1,500 per month in permanent spousal maintenance, and $1,930 per month in child support. The district court found that this would leave father with a monthly surplus of $1,173 that would be more than sufficient to cover "payroll deductions for taxes, health insurance, and retirement savings."

Father moved for amended findings. He sought a reduction in maintenance. He argued that the $1,173 monthly surplus was insufficient to allow him to cover payroll deductions for taxes, insurance, and retirement savings. He cited Exhibit 15 from the parties' trial, a paystub that showed that these deductions amounted to $2,085 per month. He also cited a payment calculator created by his employer to help employees estimate payroll deductions. The calculator indicated his payroll deductions were even higher.

The district court dismissed father's motion on procedural grounds. Less than two weeks later, father moved to modify maintenance and child support. He made the same arguments he previously made in his motion for amended findings. He also argued that he had increased expenses. In addition, he argued that because the oldest child was still living with him, his child-support obligation should be decreased.

The district court denied father's motion. The district court determined that father had not even alleged the necessary change in circumstances and his motion was "largely based upon an improper motion for reconsideration or amended findings regarding Exhibit 15." The district court also awarded conduct-based attorney fees to mother. The award was based on father's frivolous modification motion and other motions and conduct that "unreasonably added to the length and expense" of the proceedings. Father appeals.

DECISION

This court reviews a district court's ruling on a motion to modify maintenance or child support for an abuse of discretion. Hecker v. Hecker, 568 N.W.2d 705, 709-10 (Minn. 1997) (maintenance); Moylan v. Moylan, 384 N.W.2d 859, 864 (Minn. 1986) (support). The district court abuses its discretion when it makes findings that are not supported by the evidence or misapplies the law. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn. 1996). We review the district court's factual findings for clear error. Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002). Factual findings are clearly erroneous if they are "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole." Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 716 (Minn. App. 2009) (quotation omitted), review granted (Minn. Sept. 29, 2009) and appeal dismissed (Minn. Feb. 1, 2010). We defer to the district court's credibility determinations and do not reweigh the evidence. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (evidence); Knapp v. Knapp, 883 N.W.2d 833, 837 (Minn. App. 2016) (credibility).

Before a district court may modify a maintenance or support award, the moving party must provide "clear proof" that, since the maintenance or support obligation was established or last modified, there has been a substantial change in circumstances that renders the award unreasonable and unfair. Minn. Stat. § 518A.39, subd. 2 (2016); Bormann v. Bormann, 644 N.W.2d 478, 480-81 (Minn. App. 2002) (support); Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (maintenance) (quotation omitted). There are eight statutory grounds for a finding of changed circumstances, including, for example, "substantially increased or decreased gross income of an obligor or obligee" and "substantially increased or decreased need of an obligor or obligee or the child or children that are the subject of [the] proceedings." Minn. Stat. § 518A.39, subd. 2(a).

Maintenance

Father first argues that the district court abused its discretion by denying his motion to modify maintenance because Exhibit 15 shows that his payroll deductions are much greater than the district court found in the original judgment and decree. But Exhibit 15 cannot show a substantial change in circumstances because it is dated several months before the judgment and decree established the maintenance award. Exhibit 15 was evidence at the parties' trial. The district court stated in its order denying father's modification motion that it "did not give [Exhibit 15] significant evidentiary weight because [mother] argued credibly and persuasively that the document did not accurately reflect [father's] financial circumstances, as he increased his tax withholding in order to make his income appear lower." We do not reweigh evidence and we defer to the district court's credibility determinations. Dobrin, 569 N.W.2d at 202; Knapp, 883 N.W.2d at 837. Moreover, father did not appeal the original maintenance award and the order is now final. See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating that an appealable order is final when the deadline to appeal has expired, even if the order is wrong in certain respects). Father's modification motion does not allow him to relitigate Exhibit 15.

Father also points to a payment calculator that he claims shows his payroll deductions are currently even higher than indicated on Exhibit 15. But the payment calculator, which father first filed in district court just over a month after the judgment and decree was issued, shows total payroll deductions of $2,353 per month, and father claims in his brief that at the time the maintenance award was set, his payroll deductions were $2,227 per month. Given father's $7,662 monthly income, a $126 increase in monthly payroll deductions is not a substantial change in circumstances. Moreover, the payment calculator suffers from credibility issues identical to those the district court pointed to in Exhibit 15. It is unreliable because it allows the user to manipulate the amount of payroll deductions. The payment calculator does not show a substantial change in circumstances. See Deliduka v. Deliduka, 347 N.W.2d 52, 57 (Minn. App. 1984) ("We will not disturb the [district] court's maintenance or child support awards on the basis of unsubstantiated claims and self serving figures as to a party's income tax liabilities."), review denied (Minn. July 26, 1984).

Father next argues that an increase in his other monthly expenses supports a modification of maintenance. But a comparison of father's claimed expenses at trial and the expenses he claimed in the affidavit attached to his modification motion shows little change. In his affidavit, father claimed that, excluding payroll deductions, his total monthly expenses are $3,582. At trial, father claimed $3,524 in monthly expenses. The district court found some of the $3,524 in expenses unreasonable and reduced the amount to $3,059. In his affidavit, father again claimed many of the expenses that the district court previously found unreasonable. As the district court found, father has not shown any substantial change in his expenses.

Father also claims that he bears additional costs as a result of the marital debt allocated to him in the judgment and decree. But, as the district court found, this does not show a change in circumstances. The district court was fully aware of this debt allocation when it established the maintenance award. See Abuzzahab v. Abuzzahab, 359 N.W.2d 329, 332 (Minn. App. 1984) (explaining that "changes directly resulting from the property division are not the type of changes" that allow a modification of spousal maintenance because the district court contemplated them when it divided the property). Similarly, father argues that the support and maintenance obligations themselves constitute a substantial change in...