Opinion
No. C9-00-728.
Filed November 21, 2000.
Appeal from the District Court, Washington County, File No. F8-95-3311.
Kevin K. Shoeberg, (for appellant)
Edward L. Pardee, (for respondent)
Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant challenges the district court's post-judgment order, which denied his motions to modify child support, held respondent in contempt of court, modified visitation, and denied appellant attorney fees incurred in bringing the motions. We affirm in part, reverse in part, and remand.
FACTS
Appellant David Taylor and respondent Shelly Taylor were married on September 18, 1982; they have three children. In 1999, the district court dissolved their marriage, granted sole physical custody of the children to respondent, and ordered appellant to pay child support. Later that year, appellant suffered a severe injury and the district court suspended his obligation to pay child support for a period of six months, the estimated recovery time for his injuries.
The district court also ordered the parties to follow the recommendation of a family counselor concerning appellant's future contact with his two oldest children and formulated a visitation schedule for appellant and his youngest child. Following the dissolution, the parties disagreed about visitation. Appellant contends that respondent violated the terms of the visitation order by failing to make the youngest child available for visitation and by failing to contact the family counselor. Respondent testified that she has attempted to arrange an appointment with the counselor on different occasions, but has been unable to do so because of her work schedule.
Appellant moved the court (1) to find respondent in contempt for failing to comply with the dissolution judgment, (2) to set forth the visitation schedule for 2000, and (3) to modify child support, and sought attorney fees. The district court denied appellant's motion in its entirety and denied attorney fees. This appeal followed.
DECISION
1. Child Support
A trial court may modify a child support obligation if the moving party shows a substantial change in circumstances that renders the existing support award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (Supp. 1999). Appellant moved the court to "extend the suspension of [appellant's] child support obligation pursuant to Minnesota Statutes Section 518.64 based upon [appellant's] continued inability [to] work." The district court did not construe this as a motion for modification. Appellant's pleadings, however, specifically referred to the child support modification statute. Courts must construe pleadings liberally in favor of the pleader and judge them by their substance, not their form. Basich v. Board of Pensions, 493 N.W.2d 293, 295 (Minn.App. 1992). We therefore reverse and remand to the district court with instructions to construe appellant's motion as a motion to modify child support pursuant to Minn. Stat. § 518.64.
2. Contempt of Court
In reviewing a trial court's decision whether to hold a party in contempt,
[t]he factual findings of a contempt order are subject to reversal only if clearly erroneous. The trial court's decision to invoke its contempt powers is subject to reversal only if the appellate court finds an abuse of discretion.
Mower County Human Servs. v. Swancutt, 551 N.W.2d 219, 222 (Minn. 1996) (citations omitted). The test to determine whether a party should be held in civil contempt asks whether there was a failure to comply with a court order, and if so, whether conditional confinement is reasonably likely to produce full or partial compliance. Hopp v. Hopp, 279 Minn. 170, 175, 156 N.W.2d 212, 217 (1968). Here, the district court found that respondent did not intentionally violate the terms of the dissolution judgment and decided that the court's own remedies would better handle any existing violations. See Tatro v. Tatro, 390 N.W.2d 461, 464 (Minn.App. 1986) (affirming district court decision not to confine party for contempt but to use other remedies). We affirm the district court's contempt decision, but note in passing that we do not endorse the district court's failure to remedy fully the ongoing visitation disputes.
3. Visitation Modification
Appellant essentially argues that the district court abused its discretion in declining to modify the existing visitation schedule. To modify a visitation order, the trial court must find modification would serve the best interests of the child. Minn. Stat. § 518.175, subd. 5 (1998). Appellant's sole argument appears to be that visitation interference absolutely compels visitation modification. Appellant offers no support for this argument. We conclude that the district court did not abuse its discretion in declining to modify visitation.
4. Attorney Fees
"An award of attorney's fees rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion." Witeli v. Witeli, 392 N.W.2d 756, 758 (Minn.App. 1986). An appellate court will "rarely reverse the trial court on this issue." Id. Under Minn. Stat. § 518.14, subd. 1 (1998), a trial court "shall" award attorney fees in a marital dissolution case if it finds that fees are necessary for a good faith assertion of a party's rights, that the obligor has the means to pay the fees, and that the obligee does not have the means to pay the fees. Here, the district court made no such findings. The court had previously directed both parties to pay their own attorney fees; the record indicates that the parties are in similar economic circumstances. We conclude that the district court did not abuse its discretion in declining to award attorney fees.