In re the Matter of: J. S. S., petitioner, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1334

In re the Matter of: J. S. S., petitioner,
Respondent,

vs.

G. I. S.,
Appellant.

Filed April 3, 2017
Affirmed
Cleary, Chief Judge

Hennepin County District Court
File No. 27-PA-FA-15-32

Kathryn A. Engman, Engman Law Firm, Bloomington, Minnesota (for respondent)

G. I. S., Orono, Minnesota (pro se appellant)

Considered and decided by Cleary, Chief Judge; Halbrooks, Judge; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
Appellant-mother challenges the district court’s determination of custody and
parenting-time issues and argues that the district court (1) erred by ordering the parties to
participate in mediation where it made a finding of domestic abuse, (2) abused its discretion
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by denying her request for sole legal and physical custody of J.N.S., (3) erred by failing to
designate her home as J.N.S.’s primary residence, (4) abused its discretion by awarding a
stepped-up parenting-time schedule termin ating in a 5-2-2-5 equal parenting-time
schedule, (5) abused its discretion by denying her motion for a new trial, and (6) abused its
discretion by denying her attorney-fee requests. Because we conclude that the district court
properly exercised its discretion and committed no error, we affirm.
FACTS
The parties are the parents of one minor child, J.N.S. In January 2015, mother filed
a petition seeking an order for protection (OFP) against father. At the hearing, father
denied mother’s allegations, but agreed to the issuance of an OFP. In the OFP, the district
court did not make any findings of domestic abuse, but required that all of father’s
parenting time with J.N.S. be supervised. The OFP was amended to allow the parties to
participate in court-ordered custody appointme nts and to reflect adjusted parenting-time
exchange provisions in the parties’ custody file. The OFP terminated no later than the final
entry of judgment regarding custody and paternity.
In January 2015, father filed a complaint to establish paternity and custody of J.N.S.
In March 2015, the district court appointed a guardian ad litem and established a temporary
parenting-time schedule granting father parenting time with J.N.S. The district court found
that the parties were unable to agree on le gal and physical custody and parenting-time
issues, and that the parties agreed to participate in a custody and parenting-time evaluation.
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In May 2015, both father and mother f iled motions. Father’s motion requested,
among other things, joint legal and physical custody of J.N.S., modification of the parties’
parenting-time schedule, and an order requiring mother to contri bute to father’s attorney
fees and court costs. Mother’s motion requested, among other things, that she be awarded
need-based attorney fees and that the guardian ad litem be re moved. In July 2015, the
district court issued a temporary order di scharging the guardian ad litem, awarding
additional parenting time to father, denying father’s motion for attorney fees, and reserving
mother’s motion for attorney f ees. In October 2015, the dist rict court denied mother’s
request for need-based attorney fees. Mother requested pe rmission to bring a motion for
reconsideration of the order denying her request for attorney fees pursuant to Minn. R. Gen.
Pract. 115.11.
On November 16, 2015, the district cour t held a trial to de termine custody and
parenting-time issues. During the two-day trial, the district court heard testimony from the
parties and several witnesses, including the custody evaluator and a psychologist who had
performed a case-file review. The district court received a number of exhibits, including
the custody evaluation, the psychologist’s case-file review, and the parties’ psychological
evaluations.
In February 2016, the district court grante d mother’s request to bring a motion for
reconsideration, and mother submitted affidavits in support of her motion.
On March 8, 2016, the district court file d an order that determined custody and
parenting-time issues, and judgment was entered on the order that day. The district court
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made a finding of domestic abuse. It explained that, in June 2014, father threatened to
shove a piece of steel decking through mother’s throat and that this single incident rose to
the level of domestic abuse. The district court acknowledged that mother alleged other
incidents of abuse, but found that some incidents did not rise to the level of domestic abuse
and that others could not be corroborated with independ ent evidence. The district court
presumed that neither joint lega l nor joint physical custody was in J.N.S.’s best interests,
but determined that father rebutted this presumption. After concluding that joint custody
and a stepped-up 5-2-2-5 parenting-time schedule were in J.N.S.’s best interests, the district
court ordered that the parties have joint lega l and physical custody and that a stepped-up
5-2-2-5 parenting-time schedule be used. It also denied both parties’ requests for conduct-
based attorney fees. On March 10, 2016, the OFP was dismissed.
Both parties filed motions in response to the March 8, 2016 judgment. Father
requested that the district court correct clerical mistakes in its order, and mother requested
that the district court amend its findings or, in the alternative, grant a new trial. In April
2016, the district court denied father’s moti on to correct clerical mistakes, and father
moved for an order requiring mother to sign the necessary tax forms to allow him to claim
the tax dependency exemption for J.N.S. for 2015 and to reimburse his attorney fees.
Mother moved for an order awarding her attorney fees and filed a separate motion seeking
a modification of child support. On May 27, 2016, the district court denied mother’s
motion for reconsideration and her request for need-based attorney fees incurred through
trial. On June 30, 2016, the district court denied mother’s requests to modify basic child
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support and medical support, but granted the parties’ request to modify child-care support
based on increased child-care costs.
On August 1, 2016, the district court f iled an order amending its March 8, 2016
judgment, and subsequently judgment was entered on the amended order. In its amended
order, the district court again concluded that it was in J.N.S.’s best interests that the parties
have joint legal and physical custody and follow a stepped-up 5-2-2-5 parenting-time
schedule. The amended order denied mother’s request for a new trial and again denied the
parties’ requests for conduct-based attorney fees. Mother now appeals.
D E C I S I O N
I. Mediation Order
Mother argues that the district court violated Minn. Stat. § 518.619 (2016) by
ordering the parties to participate in mediation where it made a finding of domestic abuse.
Father argues that mother failed to properly raise this issue because she never requested
that the district court excuse her from participating in mediation. To the contrary, mother
represented to the district court that she wa s willing to use mediation to resolve disputes
involving custody and parenting time. Mother filed proposed findings of fact, conclusions
of law, order for judgment and judgment and decree in December 2015. In this document,
mother asked the district court to find “t hat both parents would be willing to utilize
mediation . . . but would prefer to avoid having a third party make [parenting] decisions.”
After the March 8, 2016 judgment, mother submitted a motion for amended findings. In
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this motion, mother did not object to the mediation requirement, but merely requested that
a greater proportion of the mediation fees be allocated to father.
Whether a party has taken the proper steps to preserve issues for review on appeal
affects this court’s scope of review. Minn. R. Civ. App. P. 103.04. “A reviewing court
must generally consider only those issues that the record shows were presented and
considered by the trial court.” Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988)
(quotation omitted). Although this court generally does not review issues and legal theories
that were not presented to the district court, it may do so in the interest of justice. See id.
(limiting the scope of review generally); Minn. R. Civ. App. P. 103.04 (allowing appellate
courts to review “any other matter as the interest of justice may require”). Because mother
submitted filings to the district court indicating her willingness to participate in mediation,
the interest of justice does no t favor the exercise of permissive review of the mediation
question in this appeal. We decline to re view mother’s argument opposing court-ordered
mediation of custody and parenting-time issues.
II. Legal and Physical Custody

Mother next asserts that the district c ourt committed reversible error by awarding
the parties joint legal and physical custody of J.N.S. A district court has broad discretion
in determining custody matters. Goldman v. Greenwood , 748 N.W.2d 279, 282 (Minn.
2008). Our review of custody determinations is limited to whether the district court abused
its discretion by making findings unsupported by the evidence or by improperly applying
the law. Silbaugh v. Silbaugh , 543 N.W.2d 639, 641 (Minn. 1996). When determining
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whether findings are clearly erroneous, an appellate court views the record in the light most
favorable to the district court’s findings a nd defers to the district court’s credibility
determinations. Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000). “We
cannot reweigh the evidence presented to the trial court.” Id. at 475.
The best interests of the child are central to resolving custody issues. Minn. Stat.
§ 518.17, subd. 1(a) (2016). When determin ing custody awards, a district court must
consider the 12 best-interest factors listed in Minn. Stat. § 518.17, subd. 1(a), make detailed
findings with respect to each factor, and explain how each factor led to its conclusions. Id.,
subd. 1(b)(1) (2016). No single factor is dispositive, and a district court must consider that
the factors may be interrelated. Id.
A. Custody Evaluation
Mother argues that the district court relied on a biased and deficient custody
evaluation, disregarded evidence in her favo r and evidence that reflected negatively on
father, and failed to independently weigh the credibility of the witnesses. Mother presented
evidence to the district cour t to show that the custody ev aluation was unreliable. She
submitted a psychologist’s case-file revi ew, which criticized the custody evaluation
because of the evaluator’s: (1) failure to make collateral contacts to inquire into mother’s
allegations of domestic abuse; (2) failure to use a formal domestic-abuse assessment;
(3) failure to note his efforts to investigate the alleged financial control that father exerted
over mother; (4) failure to use collateral contacts to substantiate his conclusion that mother
has mental-health issues; (5) suggestion that mo ther should complete dialectical behavior
8
therapy despite a lack of evid ence that such treatment was appropriate; and (6) failure to
note that he reviewed an article that mother submitted concerning post-separation overnight
care of children.
At trial, the psychologist who reviewed th e case file testified that she was also
concerned that the custody ev aluator took input from the guardian ad litem, who had a
strong opinion of the parties’ situation and mother’s behavior. The psychologist testified
about specific issues or omissions that may have impacted the evaluation’s reliability or
validity and explained that she would have performed different st eps had she completed
the custody evaluation. However, the psycho logist did not conclude that the evaluation
was invalid or defective and explained that she could not guarantee that she would have
made different recommendations.
After reviewing the record, we cannot say that the district court abused its discretion
by relying on the custody evaluation. Although mother attempted to establish that the
custody evaluator performed a poor evaluation and was biased against her, evidence in the
record supports a finding that the evaluatio n was valid. Because we do not reweigh the
evidence on appeal, we defer to the district court’s decision regarding the reliability of the
custody evaluation where there is evidence supporting its valid ity. We similarly defer to
the district court’s credibility determinations because the record does not show that the
district court improperly disregarded evid ence or failed to independently weigh the
credibility of the witnesses. The district court did not abuse its discretion when considering
the evidence before it.
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B. Domestic Abuse
Mother argues that the district court’s custody determination should be reversed
because there was evidence of domestic a buse. Where domestic abuse has occurred
between the parents, a court shall use a rebu ttable presumption that joint legal or joint
physical custody is not in the child’s best in terests. Minn. Stat. § 518.17, subd. 1(b)(9)
(2016). To determine whether the presumption is rebutted, a court must consider (1) “the
nature and context of the domestic abuse” and (2) “the implications of the domestic abuse
for parenting and for the child’s safety, well-being, and developmental needs.” Id.
Here, the district court found that the incide nt with the deck piece rose to the level
of domestic abuse. As a result of this finding, a rebuttable presumption against joint legal
or physical custody applies. The district court explicitly a pplied this presumption. It
considered the extended conflict between the parties and th e alleged incidents of abuse.
The district court noted that many of the inci dents alleged did not ri se to the level of
domestic abuse contemplated by the statute. Considered in the context of the parties’
interactions over time, the district court dete rmined that the incide nt with the deck piece
was not part of a continuing pattern that would have negative implications for J.N.S.’s well-
being. Rather, it determined that whatev er domestic abuse had occurred was situation-
specific. Because the district court found that J.N.S.’s well-being and developmental needs
were not affected by the abuse, it concluded that the presumption ag ainst joint legal or
physical custody was rebutted.
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From our careful review of the record, we cannot say that the district court
improperly applied the law or made findings that were unsupported by the evidence. After
finding that domestic abuse occurred, the dist rict court properly applied the statutory
presumption against joint legal or physical custody. When determining whether the
presumption was rebutted, the district court properly considered the nature and context of
the domestic abuse and the implications it ha d for parenting and the child’s safety, well-
being, and developmental need s. Because eviden ce in the record su pports the district
court’s findings, we conclude that the district court did not abuse its discretion by awarding
the parties joint legal and physical custody.
C. Parties’ Ability to Resolve Disputes and Cooperate in Co-parenting
Mother also argues that the district court’s custody determination should be reversed
because the parties are unable to resolve disputes and cooperate in co-parenting J.N.S. She
first asserts that the parties’ only alternative to litigation is mediation, which cannot be
ordered in cases of domestic a buse. We are unpersuaded. Where a court finds that there
has been domestic abuse between the parents, it cannot require or refer the parties to
mediation and must apply a rebuttable presumption that joint legal or physical custody is
not in the child’s best interest s. Minn. Stat. §§ 518.17, subd. 1(b)(9), .619, subd. 2. If a
court’s inability to order mediation was sufficient to render joint custody inappropriate, the
presumption against joint custody would be irrebuttable. For this reason, a court’s inability
to order mediation does not, without more, require the court to grant one parent sole legal
and physical custody.
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Mother next argues that the district court’s award of joint legal and physical custody
is erroneous because of the parties’ high-conf lict relationship. To support this argument,
mother relies on caselaw addressing the join t-custody factors specified in Minn. Stat.
§ 518.17, subd. 2 (2014). However, the legislature repealed subdivision 2 in 2015. 2015
Minn. Laws ch. 30, art. 1, § 13, at 283. Simultaneously, the legislature altered the language
of subdivision 1 to require cons ideration of many of the same factors that had previously
been required by subdivision 2. 2015 Minn. Laws ch. 30, art. 1, § 3, at 272 (requiring the
court to consider the parents’ willingness to cooperate in rearing the child, the parents’
ability to use methods for reso lving disputes, and whether domestic abuse has occurred
between the parents). Whether caselaw addressing the joint-custody factors of Minn. Stat.
§ 518.17, subd. 2, remains applicable under the current form of the statute has not yet been
decided by this court or the supreme court.
Neither party argues that the caselaw decided under the previous form of the statute
is inapplicable due to the repeal of subdivision 2.1 For this reason, we assume, as the parties
do, that such caselaw remains applicable for the purpose of deciding this case.
In cases addressing the prior Minn. Stat. § 5 18.17, subd. 2, this court has held that
joint legal custody should be granted only where parents can cooperate in making parenting
decisions and is inappropriate where the parties lack the ability to cooperate and
communicate. See Wopata v. Wopata , 498 N.W.2d 478, 482, 48 6 (Minn. App. 1993)

1 In her reply brief, mother argues against relying on Minn. Stat. § 518.17, subd. 2, which
was repealed before this matter came before the district court. However, mother does not
argue that the caselaw decided under Minn. Stat. § 518.17, subd. 2, is no longer applicable.
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(reversing the grant of joint legal and physical custody wh ere the parents could neither
agree nor communicate); Estby v. Estby , 371 N.W.2d 647, 6 49 (Minn. App. 1985)
(explaining that parents who cannot cooperate in parenting decisions should not be granted
joint legal custody).
Here, the district court found that the tension between the parties was high and
explained that the stressful events of litigation caused each parent to become more critical
of the other. Despite this high conflict, the district court determined that it was in J.N.S.’s
best interests to award joint cu stody to the parties. In r eaching this determination, the
district court considered testimony showing that both parties were willing to cooperate in
rearing J.N.S. and reasoned that they would have fewer reasons to expose J.N.S. to conflict
once their rights and duties were established by a court order. Because the record supports
the district court’s determination, we cannot say that the district court abused its discretion
by awarding joint legal and physical custody.
Here, the district court properly considered all of the best-interest factors, made
detailed findings with respect to each factor, and explained how each factor led to its
conclusions and custody determination. Because the evidence supports the district court’s
findings, we conclude that the district court did not abuse its discretion by awarding joint
legal and physical custody to the parties.
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III. Designation of Primary Residence

Mother next asks that this court remand to the district court with instructions that
mother’s residence should be designa ted as J.N.S.’s primary residence. 2 She first argues
that her residence should be J.N.S.’s primar y residence, in accord ance with the award of
sole custody to her. Because we conclude th at the district court properly awarded joint
custody to the parties, mother’s argumen t does not support her residence-designation
request.
Mother additionally asserts that she made the residence-designation request at trial
and that father’s failure to object supports the grant of the designation. However, mother
has failed to cite legal authority that would support her argument that she is entitled to have
her home designated as J.N.S.’s primary residence. Mother cites, Thiele, 425 N.W.2d at
582, to support her assertion th at father forfeited his right to secure the child’s residence
by failing to argue that his home should be designated. 3 However, mother does not cite
any legal authority that would require a cour t to grant one party’s residence-designation
request, where the parties share joint legal and physical custody, and where the other party
failed to object or request the designation of his own home. An assignment of error based

2 Father argues that this court should not address the residence-designation issue because
mother failed to raise it before the district court. Contrary to father’s assertion, the district
court’s March 8, 2016 order explicitly states that mother proposed that her home be
designated as J.N.S.’s primary residence. Because mother properly raised the issue before
the district court, we will consider it on appeal.
3 “[F]orfeiture is the failure to make the timel y assertion of a right, [while] waiver is the
intentional relinquishment or ab andonment of a known right.” State v. Beaulieu , 859
N.W.2d 275, 278 n.3 (Minn. 2015) (quotation omitted).
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on mere assertion and not supported by any argument or authorities in an appellant’s brief
is forfeited and will not be co nsidered on appeal unless prejudicial error is obvious.
Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133,
135 (1971). Because mother has not provided any legal authority that would support her
argument that she is entitled to have her home designated as J.N.S.’s primary residence,
and because no prejudicial error is obvious to us, her argument is forfeited. We deny
mother’s request to remand the residence-designation issue to the district court.
IV. Parenting-time Schedule

Mother asserts that the district court abused its discretion by ordering a stepped-up
parenting-time schedule, ultimately concluding in a 5-2-2-5 parenting-time schedule. “The
district court has broad discretion in determ ining parenting-time issues and will not be
reversed absent an abuse of that discretion.” Dahl v. Dahl, 765 N.W.2d 118, 123 (Minn.
App. 2009). A district court abuses its di scretion if its findings are unsupported by the
evidence or if it mi sapplies the law. Id. This court will uphol d the findings of fact
underlying a parenting-time decision unless they are clearly erroneous. Id.
The best interests of the ch ild are central to determin ing parenting-time issues.
Minn. Stat. § 518.17, subd. 1(a); Clark v. Clark, 346 N.W.2d 383, 385 (Minn. App. 1984),
review denied (Minn. June 12, 1984). When evaluating whether a parenting-time schedule
is in the best interests of the child, a court must consider the same best-interest factors that
are used in custody determinations, make detailed findings with respect to each factor, and
explain how each factor led to its conclusions . Minn. Stat. § 518.17, subd. 1(a)-(b). No
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single factor is dispositive, and the court must consider that the factors may be interrelated.
Id., subd. 1(b)(1).
Mother asserts that a 5-2-2-5 paren ting-time schedule is developmentally
inappropriate for J.N.S. and argues that the district court failed to make adequate findings
to support its conclusion that the ordered schedule was in the child’s best interests. While
before the district court, mother offered ev idence to show that a 5-2-2-5 parenting-time
schedule is developmentally inappropriate. However, other evidence in the record supports
the district’s court’s finding that a st epped-up 5-2-2-5 paren ting-time schedule is
appropriate. The evaluator recommended a stepped-up parenting-time schedule that would
ultimately result in a 5-2-2-5 sc hedule, and explained that eac h step would be suitable to
J.N.S.’s developmental needs. Father testified that, as of the time of the custody trial, the
parties followed a parenting- time schedule comparable to the second phase of the
evaluator’s recommended schedule and that J.N.S. ate well, slept well, and was generally
doing well on this schedule. Based upon this evidence, we cannot say that the district court
abused its discretion by determining that the ordered schedule is developmentally
appropriate.
Mother additionally argues that the ordered parenting-time schedule is inappropriate
given the finding of domestic a buse, the parties’ inability to co-parent, and the district
court’s misplaced reliance on the custody evaluator. As previously explained, the district
court: (1) properly considered the nature and context of the domestic abuse and the
implications it had for parenting and the ch ild’s safety, well-being, and developmental
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needs; (2) did not abuse its discretion by concluding that co-parenting was possible despite
the high level of conflict between the parties; and (3) did not abuse its discretion by relying
on the custody evaluator.
The district court properly applied the law and considered the statutory factors
enumerated in Minn. Stat. § 518.17, subd. 1(a ). Because the district court’s findings are
supported by the evidence, the district cour t did not abuse its di scretion by ordering a
stepped-up 5-2-2-5 parenting-time schedule.
V. New Trial

Mother argues that the district court erred by denying her motion for a new trial. An
appellate court reviews a district court’s new- trial decision for an abuse of discretion.
Moorhead Econ. Dev. Auth. v. Anda , 789 N.W.2d 860, 892 (Minn. 2010). We generally
defer to the district court’s broad discretion in deciding whether to grant a new trial and
will uphold the district cour t’s findings of fact unless they are clearly erroneous.
Vangsness, 607 N.W.2d at 472. When determining whether findings are clearly erroneous,
we view the record in the light most favorable to the district court’s findings. Id.
Mother first argues that the district c ourt’s findings were tainted by the custody
evaluator’s inadequate report. Although mother presented evidence that called into
question the custody evaluation’s reliability a nd validity, other evidence in the record
supports a finding that the ev aluation was sound. Because ev idence supports the validity
of the evaluation, the district court did not err by considering it.
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Mother also argues that the district court’s relian ce on father’s psychological
evaluation was flawed because the evaluation failed to include certain screenings and
assessments. After reviewing the record, we cannot say that the dist rict court erred by
considering the psychological evaluation. Because the district court did not err by relying
on the custody evaluation or father’s psychological evaluation, we conclude that the district
court did not abuse its discretion by denying mother’s motion for a new trial.
VI. Attorney Fees

Mother asserts that the di strict court erred by denying her motion for need-based
and conduct-based attorney fees pursuant to Minn. Stat. § 518.14 (2016). We review a
district court’s decision regarding attorney fees under Minn. Stat. § 518.14, subd. 1, for an
abuse of discretion. Haefele v. Haefele, 621 N.W.2d 758, 767 (Minn. App. 2001), review
denied (Minn. Feb. 21, 2001).
A. Need-Based Attorney Fees
In a proceeding under chapter 518 or chapter 518A, a court “shall”4 award attorney
fees, costs, and disbursements to enable a party to carry on the proceeding 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 co ntribute unnecessarily to the length
and expense of the proceeding;
(2) that the party from whom the fees, costs, and disbursements are
sought has the means to pay them; and
(3) that the party to whom the fe es, costs, and disbursements are
awarded does not have the means to pay them.

4 In Geske v. Marcolina, this court recognized a possible conflict between the language of
Minn. Stat. § 518.14, subd. 1, and Minnesot a caselaw on the standard of review. 624
N.W.2d 813, 816 n.1 (Minn. App. 2001). Because the parties ha ve not briefed this issue,
we do not address how to reconcile these potentially conflicting standards.
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Minn. Stat. § 518.14, subd. 1. The party seek ing need-based attorney fees has the burden
of establishing the elements that would en title her to fees under the statute. See In re
Marriage of Sammons, 642 N.W.2d 450, 458 (Minn. App. 2002) (refusing to award need-
based attorney fees when the party failed to establish the existence of the elements required
by section 518.14). A court must make appropriate findings where a party requests need-
based attorney fees. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992).
In May 2015, mother moved for need-based attorney fees5 and filed and served an
affidavit of attorney fees on August 7, 2015. In an order dated October 21, 2015, the district
court denied mother’s motion for need-based a ttorney fees. The dist rict court provided
detailed findings with respect to each elemen t under Minn. Stat. § 518.14, subd. 1, and
concluded that mother had not established an y of the elements required for an award of
need-based fees. First, the district court determined that a fee award was not necessary for
the good faith assertion of mother’s right s because it found that mother behaved
contentiously, had been unable to reach reasonable compromises, disregarded evaluators’
recommendations, and chose to appoint numerous attorneys during the course of the
proceedings. Next, the district court found th at father struggled to pay his own attorney
fees and concluded that father was unable to pay mother’s fees. Finally, the district court

5 Mother moved for fees pursuan t to Minn. Stat. § 257.69 (2016), Pitkin v. Gross , 385
N.W.2d 367, 371 (Minn. App. 1986), and Minn. R. Ge n. Pract. 119. In Pitkin, this court
held that a district court may award attorney fees under Minn. Stat. § 518.14 to a party who
retains private counsel in a ch apter 257 parentage action wher e issues are determined in
accordance with chapter 518. 385 N.W.2d at 367, 371.
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determined that mother did not establish her inability to pay her attorney fees because she
failed to show the actual balances she owed to two law firms, admitted that her income
varies due to the nature of her employment, and did not provide documents concerning her
current expenses, savings, or the value of her claimed assets.6
In February 2016, the district court gran ted mother’s request to allow a motion to
reconsider under Minn. R. Gen. Pract. 11 5.11, and mother filed her motion, which
requested that the district court reconsider its denial of need-based a ttorney fees. In an
order dated May 27, 2016, the district cour t denied mother’s motion to reconsider,
explaining that it would not consider evidence that was available to mother on August 7,
2015 or that concerned inform ation beyond the relevant time period. The district court
concluded that even if it had found that moth er’s fees were necessa ry for the good-faith
assertion of her rights, mother failed to establish father’s ability to pay and her own inability
to pay. The district court next considered mother’s request for subsequent fees incurred in
bringing the case to trial. The district cour t denied mother’s request for subsequent fees,
concluding that the high amount of fees was not necessary for the assertion of mother’s
rights and that father was unable to pay the fees.
The district court denied both mother’s original and subsequent requests for need-
based fees because it concluded that father was unable to pay her fees. Mother argues that
the district court’s conclusion is erroneous. First, she asserts that the district court should

6 The district court also explained that it would not award fees for the firm that mother had
paid in full because such payment showed mother’s ability to pay.
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have included income from father’s rental pr operties when calculating his income. The
district court declined to include father’s rental income in its calculation because it was not
provided with sufficient information about this type of income. Between 2012 and 2014,
father’s rental income varied and was at times reported as a loss. Given this variable rental
income and the limited information provided about the rental properties, we cannot say that
the district court abused its discretion by de clining to include father’s rental properties
when calculating his income. Mother additiona lly argues that the district court erred by
concluding that father was unable to pay her fees because father’s budget included
anticipated costs and unnecessary vacation, dining, and cabin expenses. The district court
found that father’s monthly income only sli ghtly exceeded his expenses and that he
struggled to pay his own attorney fees. Beca use evidence in the record supports these
findings, the district court did not err in concluding that father was unable to pay mother’s
attorney fees. Because mother failed to establish one of th e statutory elements of Minn.
Stat. § 518.14, subd. 1, the district court did not abuse its discretion when it denied mother’s
requests for need-based fees.
B. Conduct-Based Attorney Fees
Mother argues that the district court erred by denying her request for conduct-based
attorney fees. She asserts that the court clearly erred by failing to find that her conduct was
reasonable and claims that she is entitled to conduct-based fees because father repeatedly
cited to settlement discussions, was not entir ely honest throughout the proceedings, and
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caused her to incur unnecessary attorney fees by refusing to communicate directly with her
regarding parenting issues.
A court may, “in its discretion, [award] additional fees, costs, and disbursements
against a party who unreasonably contributes to the length or expense of the proceeding.”
Minn. Stat. § 518.14, subd. 1. The district court found that “both parties contributed to the
length and expe nse of these proceedings” and denied both parties’ requests for conduct-
based attorney fees. In Kahn v. Tronnier, we reviewed a district court’s decision to deny
conduct-based attorney fees where it found that both parties contributed to the unnecessary
length of the proceedings . 547 N.W.2d 425, 431 n.5 (Minn. App. 1996), review denied
(Minn. July 10, 1996). The party requesting fees neither disputed the court’s finding that
she prolonged the proceedings, nor cited cases to support the award of conduct-based fees
to a party who contributed to the proceedings’ length. Id. As a result, we concluded that
the district court did not abuse its discretion by denying her request for conduct-based fees.
Id.
Here, the record supports the district court’ s finding that mother contributed to the
length and expense of the proceedings. Because mother does not cite any law that supports
the award of conduct-based attorney fees to a party who contributed to the proceedings’
length and expense, the district court did not err by denying her request for conduct-based
fees.
Affirmed.