In re the Marriage of:

This opinion will be unpublished and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
A16-1405

In re the Marriage of:

Terri Lyn Swart, petitioner,
Respondent,

Kandiyohi County,
Respondent,

vs.
Tracy Donald Swart,
Appellant.

Filed March 20, 2017
Affirmed in part and reversed in part
Rodenberg, Judge

Kandiyohi County District Court
File No. 34-FA-12-359

Ann M. Gustafson, Waechter & Gustafson, Willmar, Minnesota (for respondent Terri
Swart)

Shane D. Baker, Kandiyohi County Attorney, Kr isten Pierce, Assistant County Attorney,
Willmar, Minnesota (for respondent Kandiyohi County)

David T. Johnson, Amundson & Johnson, P.A., Paynesville, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Stauber, Judge; and Rodenberg,
Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this child-support dispute, appellant challenges the district court’s order denying
his motion to modify child support, arguing that the district court abused its discretion by
(1) relying on the parties’ ag reement that neither would move to modify child support
before January 1, 2018 in finding that ther e has not been a substantial change in
circumstances rendering the existing supp ort obligation unreasonable and unfair,
(2) finding that appellant failed to prove his income as of the motion-hearing date, and
(3) awarding respondent attorney fees. We affirm in part and reverse in part.
FACTS
Appellant-father Tracy Swart and respondent-mother Te rri Swart married in 1998
and have four minor children together. The parties separated in 2012. Father’s temporary
basic child-support obligation was set at $1,609 per month based on his gross income. In
August 2013, the district court entered a ju dgment and decree dissolving the parties’
marriage, awarding the parties joint legal cu stody of the children, and awarding mother
sole physical custody of the children. Fa ther was awarded parenting time every other
weekend and every other Wednesday. The ju dgment and decree continued father’s basic
child-support obligation at $1,609 per month.
Several months later, father moved for a modification of the child-support order
based on changed circumstances. 1 In May 2014, a child support magistrate (CSM)

1 Kandiyohi County orig inally brought the mo tion to modify child support, but took no
position on the amount at which basic child support should be set. Father argued that a

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concluded that father’s gross income had in creased to $7,009 per month, but also found
that the increase did not create a substan tial change in circumstances warranting
modification of father’s child-support obligation.
Father moved the district court for review of the CSM’s order. Before a decision
was made by the district court, the parties reached a mediated agreement concerning child
support. On November 6, 2014, the district court dismissed father’s motion for review and
issued an order incorporating the parties’ agreement that se t father’s basic child-support
obligation at $1,439 per month. 2 The parties also agreed to limit their ability to modify
child support. The resulting order provides:
Based upon the parties’ agreem ent, neither party shall be
allowed to bring a motion for modification of child support
prior to January 1, 2018. Consideration has been given by each
party and the inability to request a motion for modification of
support is intended to cover all circumstances under which a
party would usually be allowed to bring a motion to modify
child support including but not limited to a change in either
party’s income, a change in the parenting time adjustment or a
change in custody.

In June 2015, father moved for sole phys ical custody of two of the children. In
February 2016, the parties agreed to modify custody, and the distri ct court awarded the
parties joint physical custody of those two children, retained joint legal custody as before,
and ordered that the primary re sidence of those two children would be with father. The

reduction in his child-support obligation was warranted due to decreased income. The
county disagreed that father had shown a substantial change.
2 This monthly obligation appears to have been based on a gross income amount of $5,662
per month.

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parties’ 2016 stipulation acknowledged the earlier November 2014 order and agreement
not to move for a modification of child support.
One month later, father moved for modifi cation of his child-support obligation,
citing the change of custody an d residence as justification fo r the proposed reduction.
Father argued that the limita tion on future modifications from the November 2014 order
violates public policy. Mother opposed the motion and moved for attorney fees and costs.
A hearing was held before a CSM. Fath er’s 2015 tax returns were received in
evidence. An accountant for mother testified that fathe r’s tax returns were not a reliable
basis on which to calculate father’s actual in come because of the intertwined finances of
several business entities owned and controlled by father.3
The CSM denied father’s motion. The CSM found that father had not met his
burden of demonstrating his current income. He submitte d his 2015 tax returns, but the
CSM found that such returns “ar e not always a reliable indica tion of a [party’s] income,”
and father did not produce an accountant to explain his fina nces. Having concluded that
father did not demonstrate his current income, the CSM considered father’s gross income
at the previously calculated $7 ,009 per month. On that ba sis, the CSM calculated the
obligation that mother would owe to father for the two children re siding with father.
Ultimately, the CSM concluded th at father had not demonstrated a substantial change in
circumstances that rendered the curre nt obligation unreasonable or unfair. 4 The CSM

3 Neither party provided a transcript of the m odification hearing. We are therefore left to
accept the CSM’s findings of fact concerning what testimony was presented at the hearing.
4 The CSM’s conclusions of law include contradictory statements. One conclusion is that
there has been a substantial change in ci rcumstances that renders the child-support

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further noted that the parties’ agreement not to bring motions to modify child support until
2018 was not a complete waiv er of child support; rather, it was an agreement to reduce
father’s support obligation, and an attendant agreement by each party not to bring a new
motion until 2018. The CSM or dered father to pay mother’s attorney fees of $3,172
because mother “incurred fees and costs th at she should not have incurred had [father]
followed the agreement made.”
Father moved the district court to review the CSM’s order. He objected to the
CSM’s finding that he had not proved his in come, the CSM’s conclusion concerning the
agreement not to modify, and the CSM’s conclusion awarding mother attorney fees. The
district court affirmed the CSM’s factual findings and legal conclusions.
This appeal follows.
D E C I S I O N
A party may move the district court to modify an existing child-support obligation.
Minn. Stat. § 518A.39, subd. 1 (2016). The district court may modify a child-support order
if the moving party shows (1) a substantial ch ange in circumstances that (2) renders the
existing order unreasonable and unfair. Id., subd. 2(a) (2016); I n r e D a k o t a C t y ., 866
N.W.2d 905, 909 (Minn. 2015). The moving party must prove both a substantial change

obligation unreasonable and unfair, and another is that there has not been such a change.
This appears to be a clerical error. It is apparent from the order and memorandum that the
CSM concluded that there has not been a substantial change in circumstances that renders
the order unreasonable and unfair. We therefore disregard the CSM’s apparently spurious
third conclusion of law to the contrary.

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in circumstances and that the existing orde r is unfair and unreasonable because of the
change. Rose v. Rose, 765 N.W.2d 142, 145 (Minn. App. 2009).
If a district court affirms a CSM’s decision, the CSM’s decision becomes the
decision of the district court, and we review the CSM’s decision as if it had been made by
the district court. Id. A district court’s decision to mo dify child support will be reversed
on appeal only if the district court abused its discretion by resolving the matter in a manner
contrary to logic and the facts on the record or by misapplying the law. Gully v. Gully, 599
N.W.2d 814, 820 (Minn. 1999); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
Because father did not provide this court with a transcript of the hearing before the
CSM,5 our review is limited to de termining whether the district court’s factual findings
support the conclusions of law. Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App.
2002). “A reviewing court, however, is not bound by and need not give deference to a trial

5 A district court is permitted to review the audio recording of a child-support hearing as
part of its review of a CSM’s order. Minn. R. Gen. Pract. 377.09, subd. 3 (explaining that
the record on a motion to review a CSM’s d ecision includes “any exhi bits and affidavits
filed, and, where a transcript has not been filed, may be based upon all or part of the audio
or video recording of the hearing”). We have confirmed that a recording of the hearing
exists. That recording could have been used by the district court as part of its review, but
father indicated in his statement of the case on appeal that no transcript was necessary to
review the issues presented by his appeal. Accordingly, no transcript of the hearing is
available for our review of the factual findings. Under Minn. R. Gen. Pract. 377.09, subd.
3, when a party seeks review of a decision made in the expedited child support system,
“[t]he review by the child support magistrate or district court . . . may be based upon all or
part of the audio or video r ecording of the hearing.” Unde r the appellate rules, however,
for “all cases,” the record on appeal is divided into three categories: (a) “[t]he documents
filed in the trial court[;]” (b) “the exhibits[;]” and (c) “the transcript of the proceedings, if
any[.]” Minn. R. Civ. App. P. 110.01. Father’s failure to provide a transcript precludes
our full review of the evidence presented to the CSM concerning father’s income, a factual
finding that father directly challenges on appeal.

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court’s decision on a purely legal issue.” Mesenbourg v. Mesenbourg, 538 N.W.2d 489,
492 (Minn. App. 1995).
I. Substantial change in circumstances
Father argues that the district court relie d on the parties’ agreement not to modify
child support in concluding that there had not been a substantial change in circumstances
which rendered the current obligation unreasonable and unfair, and that this was an abuse
of discretion because it was a misapplication of law and the agreem ent violates public
policy.
“The best interests of minor children ar e served by ensuring that they receive
adequate support consistent with the financ ial abilities of their mo thers and fathers to
provide that support.” Mulroy v. Mulroy, 354 N.W.2d 66, 69 (Minn. App. 1984). Although
spousal maintenance may be waived, “such [a] waiver is not permitted in the case of child
support.” Id.
The Minnesota Supreme Court has stated:
The basic right of minor children to support by the parents may
not be affected by any agreement between the parents or third
persons. Courts will not be b ound by an agre ement between
parents affecting the rights of minor children with respect to
support, but will be controlled by the welfare of the child as the
paramount consideration.

Tammen v. Tammen , 289 Minn. 28, 30, 182 N.W. 2d 840, 842 (1970). In Tammen, the
supreme court held that a district court do es not abuse its discretion in amending a
stipulated child-support obliga tion where the record “reasona bly and clearly supports a
finding that circumstances have so materially changed that the modification is fair and

8
equitable.” Id. In reaching its decision, the supreme court said that stipulations are “purely
advisory to the court and do not limit its discretionary power to determine whether a future
change in circumstances warrants revision, but they are entitled to considerable evidentiary
weight which will make the court more relu ctant to modify the original decree.” Id.
(quotation omitted).
Citing Tammen, we later held in Aumock v. Aumock that an agreement to waive
child support is not enforceable because it is contrary to public policy. 410 N.W.2d 420,
421 (Minn. App. 1987) (“Any agreement between the parents waiving child support cannot
be binding on the trial court, which must be guided primarily by a concern for the best
interests of the children.”). The parties in Aumock had agreed to a complete waiver of child
support, but the agreement was challenged se veral years later when the incomes of the
parents dramatically shifted. Id. at 421. We stated, “The non-custodial parent has an
obligation to commit a certain amount of his or her income to the child.” Id. We noted
that the parents “may have been willing to permanently bargain away child support when
the stipulation was prepared, [but] the right s of the minor children are not subject to
determination through such a bargaining process.” Id.
Mother argues, and the district court co ncluded, that the agreement between the
parties to limit motions for modifications un til 2018 is not a complete waiver of child
support, and is instead a valid and binding agreement concerning the amount of support for
a prescribed time period. Mother argues that O’Donnell v. O’Donnell, 678 N.W.2d 471
(Minn. App. 2004), supports upholding stipul ated agreements concerning child support
where changes in circumstances are foreseeable by the parties.

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In O’Donnell, we noted that a stipulation th at fixes child-support rights and
obligations “does not bar later consideration of whether a change in circumstances warrants
a modification.” 678 N.W.2d at 475. In O’Donnell, the parties stipulated to a downward
departure from the child-support guidelines, and the district court found the deviation to be
in the best interests of the children. Id. at 477. Five months after the stipulation, the father
moved for modification because of increased expenses related to his custody of the
children. Id. at 473-74. The district court modified child support to the guideline amount.
Id. at 474. We reversed the district cour t’s modification, finding that the expenses
encountered by the father were ordinary expenses insufficient to support a modification in
light of the stipulated agreement and absent a claim that the child ren’s best interests
necessitated a change in the support terms. Id. at 476. We held that a “stipulation is one
factor to be considered in modification mo tions,” and emphasized that “child support
relates to nonbargainable interests of children and is less subject to restraint by stipulation
than are other dissolution matters.” Id. (quotation omitted).
These cases demonstrate that an agreem ent concerning child support will not be
binding on the courts, Tammen, 289 Minn. at 30, 182 N.W.2d at 842, will not prevent
subsequent motions to modify support, O’Donnell, 678 N.W.2d at 475; Aumock, 410
N.W.2d at 421, but may be considered as a factor concerning a motion to modify a
stipulated support agreement based on a substantial change in circumstances, O’Donnell,
678 N.W.2d at 475. Cf. McNattin v. McNattin, 450 N.W.2d 169, 171 (Minn. App. 1990)
(considering an agreement concerning child su pport because it represented “the parties’
acquiescence in a settlement”). Whether a modification is in the best interests of the

10
children, or is based on the needs of the ch ildren, is a paramount concern of a court
considering whether to modify a stipulated order. Tammen, 289 Minn. at 30-31, 182
N.W.2d at 842; O’Donnell, 678 N.W.2d at 476-77; Aumock, 410 N.W.2d at 421.
The district court conclude d that, under section 518A.39, subd. 2(b) (2016), “there
has not been a substantial change in circumstances that renders the existing child support
order unreasonable and unfair .” (Emphasis added.) As discussed above, the parties’
agreement not to move for a modification until 2018 would not prohibit either party from
bringing a motion to modify child support; nor would it prohibit the district court from
modifying child support if it found a substantial change in circumstances that rendered the
existing child-support order unreasonable and unfair. But courts may consider a stipulation
as one factor in whether ther e has been a change in circum stances, and in considering
whether a change renders an order unreasonable and unfair. See O’Donnell, 678 N.W.2d
at 476-77 (holding that a stipulated judgme nt, with findings, may rebut a presumption of
unfairness and unreasonableness, and that a change in circ umstances did not occur where
the moving party did not claim the children’s needs necessitated a change and where the
increased expenses were foreseeable).
At oral argument, father conceded that he produced no argument or evidence
concerning the adequacy of th e existing arrangement to provide for the needs of the two
children residing with him. See Frank-Bretwisch v. Ryan , 741 N.W.2d 910 (Minn. App.
2007) (“[T]he fairness and reasonableness of the [child-support or der] goes to matters
beyond the interests of each parent, to the pa ramount consideration of the child’s best
interests. This observation becomes critical in circumst ances . . . when the primary

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argument against modification regards the earlier stipulation of the parties . . . .”). While
father may have demonstrated a change in circumstances, given the change in residence of
two children, he has not demonstrated on appeal that the district court erred in concluding
that there was no resultant unreasonableness and unfairness. Father offered no evidence
concerning the needs of the ch ildren, or that any increase d expenses attendant to the
custody change required modification.
Applying the rebuttable presumption in section 518A.39, subdivision 2(b), the
district court acted within its discretion in finding that the parties precisely contemplated
the present circumstances by their agreement not to move for modification before 2018 as
a part of their settlement of these disputes concerning child support. Its implicit conclusion
that the parties’ contemplation of this circumstance rebuts the presumption of
unreasonableness and unfairness that would ot herwise apply is a sufficient basis for
denying father’s motion. Minn. Stat. § 518 A.39, subd. 2(b)(1) (providing that it is
presumed to be a substantial change in circumstances when application of the child-support
guidelines results in a 20% and $75 difference in monthly support, but that the presumption
of unreasonable and unfairness may be rebutted).
II. Father’s income
Father challenges the district court’s findi ngs concerning his income. The district
court found that father’s income was not di scernable from his tax returns because the tax
returns were not dispositive of father’s income absent further explanation. The district
court then used father’s inco me as established in May 2014 for purposes of examining
whether there had been a change in circumstances, despite the existence of an intervening

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income stipulated to by the pa rties. Mother argues that it was not an abuse of discretion
for the district court to determine that fa ther’s income had not changed from the amount
calculated by the CSM in May 2014.
A party moving to m odify child support must provide supporting documents,
including “a financial affidavit, disclosing all sources of gross income,” including
statements of receipts and expenses fro m a self-employed person. Minn. Stat.
§ 518A.28(a) (2016); see also Minn. Stat. § 518A.30 (201 6) (“[I]ncome from self-
employment or operation of a business” for support purposes is defined as “gross receipts
minus costs of goods sold minus ordinary and necessary expenses required for self-
employment or business operation.”). “The c ourt may consider cred ible evidence from
one party that the financial affidavit submitted by the other party is fa lse or inaccurate.”
Minn. Stat. § 518A.28(c) (2016). As the district court accurately noted, taxable income is
not always a reliable indication of income fo r the purpose of setting child support, and
expert testimony may be necessary to estimate income accurately. Freking v. Freking, 479
N.W.2d 736, 740 (Minn. App. 1992); Otte v. Otte , 368 N.W.2d 293, 297 (Minn. App.
1985).
While we recognize that father’s income may have been difficult to ascertain after
mother’s accountant testified, the district court was required to establish the current income
of the parties to determine whet her there had been a substantial change in circumstances.
Martin v. Martin , 382 N.W.2d 920, 922 (Minn. A pp. 1986). And using the May 2014
income rather than the stipulated income of $5,662 from the November 2014 order was at
least unusual, and probably erroneous withou t a more complete explanation. However,

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even if it was error to use the gross income amount from May 2014, that error was harmless,
because it would not change the conclusion that father had failed to show that the existing
support obligation is un reasonable and unfair. See Bormann, 644 N.W.2d at 482 (“[A]
finding of the lack of either threshold c ondition for modification renders a finding on the
other threshold condition unnecessary.”); see also Minn. R. Civ. P. 61 (requiring that
harmless error be ignored).
Despite the district court’s imperfect findings and conclusions, father has not shown
reversible error. In significant part, his failure to provide the CSM with sufficient evidence
of his income, and his failure to provide a transcript on appeal, leaves us unable to discern
reversible error.
III. Attorney fees
Finally, father argues that the district court abused its discretion in awarding
conduct-based fees because he had a legitimate legal basis to challenge the child-support
order, despite his earlier agreement not to move for a modification. Mother argues that the
district court was within its discretion on this record to have ordered either conduct-based
or need-based fees.
The CSM’s award of fees was based on mother’s having incurred fees and costs in
defending against father’s motion “that she should not have incurred had [father] followed
the agreement made.” The district court affirmed this award on review.
We review an award of attorney fees under the abuse-of-discretion standard. Gully,
599 N.W.2d at 825. The district court shall award need-based costs if it finds that certain
statutory requirements are met. Minn. Stat. § 518.14, subd. 1 (2016). A lack of specific

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findings on the statutory factors will not be fatal to a need-based award if the district court’s
order reasonably implies that the relevant f actors were considered, and the district court
had familiarity with the case and access to the parties’ financial records. Geske v.
Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001 ). Here, the order for attorney fees
included none of the required findings for a n eed-based award and it is not apparent from
the order that the district court considered th e relevant factors. Contrary to mother’s
assertion, an award on the basis of mother’s need appears to us not to have been
contemplated by the district court. The district court intended to award conduct-based fees.
Conduct-based fees may be awarded “against a party who unreasonably contributes
to the length or expense of the proceeding.” Minn. Stat. § 518.14, subd. 1; see Baertsch v.
Baertsch, 886 N.W.2d 235, 238-39 (Minn. App. 2016) (providing examples of conduct that
may justify an award, such as noncompliance with discovery, pursuit of frivolous or bad-
faith claims, or behavior occurring during th e litigation process). The district court must
make findings explaining its award of conduct-based fees. Brodsky v. Brodsky , 733
N.W.2d 471, 477 (Minn. App. 2007).
Without explaining how father unreasonably contributed to the length or expense of
the proceeding, the district court’s award cited only father’s mo tion having been in
contravention of the parties’ earlier agreement. The district court’s analysis amounted to
a conclusion that any modification motion u nder these circumstances is ipso facto a
sufficient basis for an award of conduct-based fees. As di scussed above, an agreement
concerning motions to modify child support is not necessarily binding, the children’s best
interests being the courts’ paramount concer n. As such, the mere making of the

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unsuccessful motion cannot justify the award. See Baertsch, 886 N.W.2d at 238 (noting
that conduct-based fees are not tied to whet her a party prevailed in the action). We
therefore reverse the award of attorney fees.
Affirmed in part and reversed in part.