In re the Marriage of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Sta. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0482

In re the Marriage of:

John Edward Warrington,
Respondent,

and

Karen Lee Warrington,
Appellant.

Filed March 30, 2020
Reversed and remanded
Bryan, Judge

Hennepin County District Court
File No. 27-FA-16-3836

Anne M. Honsa, Deborah M . Gallenberg, Honsa Rodd Landry, Minneapolis, Minnesota
(for respondent)

Matthew J. Gilbert, Gilbert Alden PLLC, Burnsville, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Bratvold, Judge; and Bryan,
Judge.
U N P U B L I S H E D O P I N I O N
BRYAN, Judge
Appellant challenges the denial of her motions to modify child support and spousal
maintenance. Because the district court did not address the applicability of statutory
presumptions, we remand for further proceedings. On remand, the district court may

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reopen the record at its discretion regarding the motions to modify child support and
spousal maintenance. In addition, a ppellant also challenges the district co urt’s award of
conduct-based attorney fees. Because the district court abused its discretion in concluding
that appellant unreasonably contribute d to the length or expense of the proceeding , we
reverse the award of conduct-based attorney fees.
FACTS
Appellant Karen Lee Warrington (wife) and respondent John Edward Warrington
(husband) married in September 2002. The parties have one minor child together born in
2003. In May 2016, husband filed his petition for the dissolution of marriage. The district
court held a two-day court trial on February 21 and 22, 2017. The district court entered its
dissolution decree on July 6, 2017 (the judgment and decree).
In the judgment and decree, the district court found that h usband was employed as
a pilot at FedEx with a gross monthly income of $28,729 and a reasonable monthly budget
of $9,590. Calculating wife’s income required more nuanced findings. The district court
determined that wife was self -employed as a commodities broker, operated as a sole
proprietor, filed a 1099 and a schedule C with the IRS, and had been affiliated exclusively
with McVean Trading & Investments, LLC ( McVean) since 1994. In the judgment and
decree, the district court acknowledged that, at the time of her testimony in February 2017,
wife was contemplating a change in her career. The district court noted that, according to
wife, she had the following three employment options : (1) remain self-employed and
remain with McVean , which would result in continued loss of clients and decreasing
income; (2) remain self-employed, but move away from McVean , which could allow her

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to retain her existing clients and grow assets u nder management with new clients; or
(3) become employed at a brokerage firm as a W -2 employee, which would result in
anticipated income of approximately $75,000 per year. In addition, the district court found
that wife claimed a large amount of deductions due to business expenses that reduced her
taxable income by $68,698.
For the purposes of establishing ongoing child support and spousal maintenance ,
the district court found wife’s income to be $167,476, declining to reduce her income by
the claimed tax deductions (taxable income of $98,778 plus claimed deductions of $68,698
= $167,476). In determining the duration of ongoing spousal maintenance, the district
court observed that wife anticipated her income would decrease before ultimately
increasing to approximately $200,000 within three years (from the date of her testimony in
February 2017). 1 The district court awarded wife temporary (rehabilitative) spousal
maintenance until June 2020, ordering husband to pay her the amount of $7,750 per month
until the sale of the home and the amount of $2,250 per month upon the sale of the home
through June 2020. The district court also awarded wife ongoing child support, ordering
husband to pay $1,027 per month.2

1 This estimate was made by wife assuming that she followed the second of the three
separate employment scenarios: remain self -employed, but move away from McVean ,
retaining her existing clients and growing assets under management with new clients.
2 On August 4, 2017, wife filed a notice of motion and motion for amended findings of fact
and conclusions of law asserting that husband’s acceptance of a new position would boost
his income and affect parenting time. The district court denied wife’s motion because it
had already considered the evidence, testimony, submissions, and expert reports in its
analysis and decision regarding spousal maintenance.

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On June 12, 2018 , wife moved to modify both spousal maintenance and child
support.3 Wife based her motion on two primary grounds: (1) husband’s income had
increased substantially since the judgment and decree; and (2) wife’s income had decreased
substantially since the judgment and decree. In her affidavit in support of the motion, wife
stated that husband accepted a new position at FedEx and his income increased , but she
did not know the extent of the change. Wife also noted that , since the decree, husband
relocated out of the state to Memphis, Tennessee, where there is no state income tax and
the cost of living is much lower . Wife further based her motion on the assertion that
husband had not exercised parenting time since August 2017 , and that husband had not
contributed to the child’s extracurricular activities . As it related to her financial
circumstances, wife stated that her income decreased from $167,484 to $89,568 (a decrease
of 46.5%).
Wife supplied the district court with a total of 29 exhibits to her affidavits. 4 Her
June 12, 2018, affidavit included 18 exhibits. Many of these exhibits constitute evidence
of wife’s current income and financial circumstances. For example, Exhibit 2 shows wife’s
assets under management from June 2015 ($14,077,142) to June 2018 ($ 3,112,395).
Exhibit 3 contains wife’s gross commissions by month and total income earned. Exhibit 4

3 Wife specifically moved to change the amount of spousal maintenance and in her motion,
she did not include an end date. Wife and the district court interpreted this as a request to
modify the duration of the temporary spousal maintenance to make it permanent. See Gales
v. Gales, 533 N.W.2d 416, 418 (Minn. 1996) (observing that “by failing to designate when
the payments would end, the court in effect awarded permanent maintenance”).
4 Wife filed affidavits on June 12, July 13, July 17, and July 18, 2018 , relating to her
motions and in response to husband’s pleadings. The district court denied hus band’s
request to strike her supplemental affidavits.

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consists of summary sheets that wife received from McVean, displaying the equity of each
account that wife managed. Exhibit 18 contains paystubs from December 2016 to April
2018. On July 13, 2018, wife filed a responsive affidavit with two additional exhibits, one
of which (exhibit B) contained wife’s 1099 from 2015, her 1099 from 2017, and her 2017
federal and state tax returns. On July 17, 2018, wife filed an affidavit with six exhibits
pertaining to husband’s income. On July 18, 2018, wife filed a supplemental affidavit with
three additional exhibits , including correspondence from McVean terminating wife’s
association with the company dated June 22, 2018, after she filed the motion and her initial
affidavit.
In response, h usband filed an affidavit noting that in 2018 he earned overtime
income of $72,869.55.5 This was in addition to his base salary of $344,746, as determined
by the district court in the 2017 judgment and decree. Although wife’s initial affidavit did
not include a specific dollar amount to quantify her assertion that husband’s income had
increased, husband provided this information to the district court in response to wife’s
modification motion . Husband also filed a motion for c onduct-based attorney fees for
having to address and respond to wife’s motions.

5 Husband’s “overtime” income increased since starting his position as a Line Check
Airman in April 2017. The district court found that, as is customary in the airline industry,
“overtime” for husband’s employment consists of hours that exceed 77 flight hours per
four weeks. The district court rejected husband’s contention that his “overtime” pay is not
income for determining maintenance . Instead the district court concluded the additional
amount was income because even with the hours in excess of 77 flight hours, husband still
worked less than 40 hours per week.

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The district court issued an order denying wife’s motions to modify spousal
maintenance and child support. In doing so, the district court found that wife did not
provide any tax documents or any other documents to corroborate her claim of decreased
income. The district court also found that husband’s income increased by $72,870. The
district court’s order focused only on spousal maintenance and did not separately analyze
the motion to modify child support. The order was silent on whether the increase in
husband’s income alone constituted a change in circumstances under the modification
statute. The district court also granted husband’s request for conduct-based attorney fees,
awarding husband $13,355.75.
D E C I S I O N
I. Denial of Motions to Modify Child Support and Spousal Maintenance

We review a district court’s decisions regarding whether to modify spousal
maintenance, to modify child support, the proper amount of each, and the duration of
spousal maintenance for an abuse of discretion. E.g., Haefele v. Haefele, 837 N.W.2d 703,
708 (Minn. 2013) (child support) ; Hecker v. Hecker , 568 N.W.2d 705, 709 -10 (Minn.
1997) (spousal maintenance). We apply a clearly erroneous standard of review to a district
court’s findings of fact concerning spousal maintenance and child support . E.g., Putz v.
Putz, 645 N.W.2d 343, 347 (Minn. 2002) (child support); Gessner v. Gessner, 487 N.W.2d
921, 923 (Minn. App. 1992) (spousal maintenance) . We apply a de novo standard of
review to questions of law related to spousal maintenance and child support. E.g., Haefele,
837 N.W.2d at 708 (child support); Melius v. Melius, 765 N.W.2d 411, 414 (Minn. App.
2009) (spousal maintenance).

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A. Statutory Presumptions
Wife argues that the district court failed to analyze the motions to modify spousal
maintenance and child support under Minnesota Statutes, section 518A.39 (2018).
Because the district court did not determine whether the statutory presumptions set forth in
section 518A.39 apply in this case , we reverse the denial of wife’s modification motions
and remand to the district court for further proceedings.
The party requesting mo dification to child support or spousal maintenance must
show that a substantial change in circumstances has occurred. Minn. Stat. § 518A.39, subd.
2(a). To determine whether changes in circumstances are “substantial,” t he statute
provides specific, quantifiable thresholds. For spousal maintenance modification motions,
district courts consider decreases in the parties’ incomes. Specifically, district courts
determine whether the moving party has demonstrated that “the gross income of an obligor
or oblige has decreased by at least 20 percent through no fault or choice of the party.”
Minn. Stat. § 518A.39, subd. 2(b)(5). For child support modification motions, district
courts consider changes to the variables used to calculate child support. Specifically,
district courts determine whether the moving party has shown that the current financial
circumstances of the parties would result in a child support order “that is at least 20 percent
and at least $75 per month higher or lower than the current support order . . . .” Minn. Stat.
§ 518A.39, subd. 2(b)(1).
When the moving party establishes the statutory threshold, district courts must apply
two separate presumptions to the modification request. Minn. Stat. § 518A.39, subd. 2(b);
Rose v. Rose , 765 N .W.2d 142, 145 (Minn. App. 2009); Frank-Brewtisch v. Ryan , 741

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N.W.2d 910, 914 (Minn. App. 2007) . First, establishing the threshold creates an
irrebuttable presumption that a substantial change has occurred. Minn. Stat. § 518A.39,
subd. 2(b); Rose, 765 N.W.2d at 145 . Second, establishing the threshold also creates a
separate, rebuttable presumption that the current o rder is unreasonable and unfair. Minn.
Stat. § 518A.39, subd. 2(b); Rose, 765 N.W.2d at 145 ; O’Donnell v. O’Donnell , 678
N.W.2d 471, 477 (Minn. App. 2004).
In this case, for purposes of wife’s spousal maintenance modif ication motion, the
district court should consider decreases to wife’s income. Wife could obtain the benefit of
the two statutory presumptions on her spousal maintenance modification motion if she can
demonstrate that her income dramatically decreased. For purposes of wife’s separate child
support modification motion, the district court should consider increases to husband’s
income, decreases to wife’s income, and any other changes to the variables that effect the
child support guidelines calculation . Wi fe could obtain the benefit of the two statutory
presumptions on her child support modification motion if she can demonstrate that
increases to husband’s income, decreases to her income, or both would result in a new child
support order that is at least 20 percent and at least $75 per month higher or lower than the
current support order.

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B. Spousal Maintenance Modification6
A decrease in wife’s income of at least 20% through no fault or choice of hers would
require the district court to apply the two sta tutory presumptions to wife’s spousal
maintenance modification motion. Minn. Stat. § 518A.39, subd. 2(b)(5). Wife argues that
the district court abused its discretion in not determining her current income and clearly
erred in finding that she did not provide tax documents or other income evidence. We
conclude that a mistake has been made, and that this record does not support the district
court’s finding regarding wife’s submissions.
Deciding whether to apply the statutory presumptions to a spousal maintenance
modification motion requires a comparison between the current circumstances and the
circumstances at the time of the previous order . See Bormann v. Bormann , 644 N.W.2d
478, 482 (Minn. App. 2002) (remanding denial of modification motion due to inadequate
factual findings and observing that ruling on such motions “generally involves (but is not
necessarily limited to) a comparison of the obligor’s existing obligation with what the
obligation would be if it were modified”). In this case, the modi fication statute requires
the district court to consider wife’s current income and financial circumstances. Once it
has determined wife’s current income, the statute requires the district court to compare the
current income to the income findings in the 2017 judgment and decree. It is not enough
to conclude that wife’s income decreased, as anticipated in the 2017 judgment and decree.

6 We address the district court’s denial of wife’s spousal maintenance modification motion
as an independent and separate appellate issue from the denial of her child support
modification motion.

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The degree of decrease in income might exceed what had been anticipated at the time of
wife’s initial testimony prior to t he issuance of the 2017 judgment and decree .
Alternatively, the decrease may have resulted from some reason other than what was
contemplated prior to the issuance of the 2017 judgment and decree.7
The district court did not conduct this comparison. Instead, the district court denied
wife’s modification motions because it found that she “ha[d] not provided the Court with
any tax documents or any other documents to corroborate her claim that her income has
drastically decreased.” Wife asserts the district court erred because this finding is contrary
to the record. We agree. Wife supplied the district court with a total of 29 exhibits to her
affidavits. Exhibits 2, 3, 4, and 18 of wife’s June 12, 2018, affidavit all relate to calculation
of her current income. Exhibit 2 shows wife’s assets under management from June 2015
($14,077,142) to June 2018 ($ 3,112,395). Exhibit 3 lists wife’s gross commissions by
month and total income earned. Exhibit 4 includes summary sheets that wife received from
McVean displaying the equity of each account that wife managed. Exhibit 18 consists of
wife’s paystubs from December 2016 to April 2018. In addition, exhibit B of wife’s July
13, 2018, responsive affidavit was wife’s 2017 federal and state income tax returns. We
conclude that the district court clearly erred when it found that wife did not submit
documentation of her current income. We reverse the denial of wife’s spousal maintenance

7 For example, in the 2017 judgment and decree, the district court anticipated a decrease in
income, followed by an increase in income , if wife followed the second employment
scenario identified by wife. This scenario, however, assumed wife would keep the majority
of her old clients. If this assumption did not actually come to pass, the district court could
consider this in deciding whether the current order was unreasonable and unfair.

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modification motion and remand to the district court to determine the change in wife’s
income and to determine whether the change satisfies the thresholds set forth in section
518A.39, subdivision 2(b)(5). If the statutory threshold is established, then the district shall
apply the presumptions when deciding whether to grant or deny wife’s spousal
maintenance modification motion.
C. Child Support Modification
Deciding whether to apply the statutory presumptions to child support modification
motions also requires a comparison. The modification statute requires the district court to
consider whether a “calculated court order” is “at least 20 percent and at least $75 per
month higher or lower than the current support order.” Minn. Stat. § 518A.39, subd.
2(b)(1). Wife argues that the district court failed to apply the law when it denied wife’s
child support modification motion without calculating a new support order (given the
changes to her income and to husband’s income)8 and without comparing the new support
order to the current order. We agree.
The district court found that husband’s income increased by $72,870 to a to tal
annual income of $417,616 . This is an increase of 21%. Even without considering the
asserted decrease in wife’s income, the district c ourt’s findings of husband’s new income
alone could result in a new child support calculation that triggers the statutory
presumptions. Because the district court did not make a new calculation of child support
and because the district court did not compare the new calculation to the current order, the

8 The parties’ parenting time may also have changed, which could also affect the new
calculation of child support.

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district court did not determine whether the statutory presumptions apply. We reverse the
denial of wife’s child support modification motion and remand to the district court to
determine whether the changes to both parties ’ incomes satisfy the threshold set forth in
section 518A.39, subdivision 2(b)(1). If the statutory threshold is established, then the
district court shall apply the presumptions when deciding whether to grant or deny wife’s
child support modification motion.
D. Remand
As noted above, the district court failed to make findings necessary to determine
whether the statutory presumptions apply to this case. Findings are necessary “to facilitate
meaningful appellate review, to show that the tri al court considered all the relevant
statutory factors, and to satisfy the parties that the trial court fairly resolved their case.”
Lewis v. Lewis, 414 N.W.2d 588, 590 (Minn . App. 1987). Reversal and re mand for
additional findings is appropriate when th e district court fails to make adequate findings.
Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).
On remand, t he district court shall have the discretion to determine whether to
reopen the record regarding the parties’ income or to make additional findings without
reopening the record. Under either approach, the district court should make all findings
necessary to properly determine whether the statutory presumptions apply to wife’s
modification motions. Should the district court determine that wife has established the
requisite threshold to trigger the statutory presumptions, the district court shall then shall
make all factual findings necessary to determine w hether husband has rebutted the
presumption o f unreasonable ness and unfairness. If wife cannot establish the statutory

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thresholds, then the district court shall still determine whether the current order is
unreasonable and unfair in the absence of the statutory presumptions and shall make all
factual findings necessary to support that determination. Finally, if the district court
modifies spousal maintenance or child support, the district court shall also make all
necessary findings regarding whether to modify spousal m aintenance or child support
retroactively to either of the following: (1) the date on which wife first served notice of her
motions to modify; or (2) to some other date since the date on which wife first served notice
of her motions to modify. Minn. Stat. § 518A.39, subd. 2(f) (2018).
II. Award of Conduct-Based Attorney Fees
Conduct-based attorney fees are allowed at the discretion of the district courts if one
party unreasonably contributes to the length or expense of the proceeding. Minn. Stat.
§ 518.14, subd.1 (2018). The party moving for conduct-based attorney fees “has the burden
to show that the conduct of the other party unreasonably contributed to the length or
expense of the proceeding. ” Baertsch v. Baertsch , 886 N.W.2d 235, 238 (Minn. App.
2016) (citing Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001)). We review
the district court’s decision to award attorney fees for an abuse of discretion. Sanvik v.
Sanvik, 850 N.W.2d 732, 737 (Minn. App. 2014). In this case, wife did not unreasonably
litigate the modification motions. Husband’s own affidavit indicates a large increase in his
income, justifying wife’s decision to request modification. In addition, in light of our
decision regarding wife’s income, wife had sufficient basis to request modification.
Because the district court abused its discretion, we reverse the award.
Reversed and remanded.