In re the Marriage of: John Gordon Lewis, petitioner, Respondent,

This opinion will be unpublished and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

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1202

In re the Marriage of: John Gordon Lewis, petitioner,
Respondent,

vs.

Elizabeth Ann Lewis,
Appellant.

Filed October 26, 2020
Affirmed
Johnson, Judge

Hennepin County District Court
File No. 27-FA-12-1346

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

Elizabeth A. Lewis, Wayzata, Minnesota (pro se appellant)

Considered and decided by Frisch, Presiding Judge; Johnson, Judge; and Reyes,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
This appeal arises from a post-dissolution motion concerning parenting time and
other issues. The district court denied the motion and awarded conduct-based attorney fees
to the non-moving party. We conclude that the district court did not err by not considering
the moving party’s ability to pay the fee award. Therefore, we affirm.

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FACTS
John Gordon Lewis and Elizabeth Ann Lewis were married in 1992 , and their
marriage was dissolved in 2013. The parties have five children. All of the parties’ children
were minors when the marriage was dissolved. Four of them now are adults.
After John petitioned for dissolution, the parties negotiated an agreement that
resolved all co ntested issues, and the agreement was incorporated into the dissolution
judgment and decree. The decree provides for joint legal custody of the parties’ minor
children and a detailed parenting -time schedule. The decree also provide s for the
appointment of a parenting consultant, who is identified by name, “to assist [the parties] in
resolving disputes regarding their minor children.” The decree defines the scope of the
parenting consultant’s authority by including certain issues, such as parenting time, the
children’s activities, and communications, and by excluding certain other issues, such as
child custody, spousal support, and child support. The decree requires the parties to attempt
to resolve disputed issues themselves before seeking the assistance of the parenting
consultant. The decree further provides that the parties “must abide by all decisions that
are made by the Parenting Consultant, unless modified by subsequent court order.” After
the parenting consultant has considered a dispute and made a decision , either party may
bring a motion in the district court for review of the parenting consultant’s decision.
In August 2018, Elizabeth sent a seven-page letter to the parenting consultant to
raise various issues concerning John and the children. In November 2018, Elizabeth served
and filed a motion in the district court seeking an order that John is in contempt of court
on the ground that he has not complied with the parenting plan. Elizabeth also moved for

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other relief, including a modificatio n of custody, an award of child support, and an
accounting of the children’s custodial financial accounts. In December 2018 and January
2019, John’s attorney sent Elizabeth two letters stating that some of the issues in her motion
must be presented to the parenting consultant instead of the district court. Elizabeth
responded with a letter stating, in essence, that John had not cooperated with the process
of utilizing the parenting consultant and that she would proceed with her motion.
In February 2019, John served and filed a 23-page affidavit that responded in detail
to each of the issues raised by Elizabeth’s motion. He also moved for conduct -based
attorney fees. He sought $4,949 for the fees he incurred in corresponding with Elizabeth
about the role of the parenting consultant and in preparing his written response to
Elizabeth’s motion.
In May 2019, the district court filed an order in which it denied Elizabeth’s motion
in all respects, granted John’s motion for attorney fees, and ordered Elizabeth to pay John
$4,000 in conduct-based attorney fees. Elizabeth appeals.
D E C I S I O N
Elizabeth, who is self -represented, argues that the district court erred by granting
John’s motion for conduct-based attorney fees.
By statute, a party to a dissolution action or post-dissolution proceeding may obtain
an award of attorney fees that are “ necessary for the good faith assertion of the party ’s
rights in the proceeding” if the party seeking fees “ does not have the means to pay them ”
but the other party does have such means. Minn. Stat. § 518.14, subd. 1(1)-(3) (2018). In
addition, the same statue provides, “Nothing in this section or section 518A.735 precludes

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the court from awarding, in its discretion, additional fees, costs, and disbursements against
a party who unreasonably contributes to the length or expense of the proceeding.” Id. This
court has interpreted the statute to provide a legal basis for an award of “conduct -based”
attorney fees. See, e.g., Szarzynski v. Szarzynski , 732 N.W.2d 285, 295-96 (Minn. App.
2007); Geske v. Marcolina , 624 N.W.2d 813, 818 -19 (Minn. App. 2001). 1 Whether to
award conduct-based attorney fees generally depends on “the impact a party’s behavior has
had on the costs of the litigation.” Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn.
App. 1991). This court applies an abuse-of-discretion standard of review to such an award.
Haefele v. Haefele , 621 N.W.2d 758, 767 (Minn. App. 2001) , review denied (Minn.
Feb. 21, 2001).
In this case, t he district court noted that John sought attorney fees for his “efforts,
through counsel, to have the issue s raised in mother’s motion and affidavit addressed by
the [parenting consultant].” The district court found that Elizabeth “refused to do so.” The
district court also found that John “provided a lengthy and detailed affidavit . . . in support
of his request” for attorney fees.
Elizabeth contends that the award must be reversed on the ground that she lacks the
means to pay it. She states that she is receiving government assistance with respect to her
health-care expenses. In response, J ohn contends that there is no legal or factual support

1Neither party has questioned whether section 518.14 provides a substantive basis
for an award of conduct -based attorney fees. For purposes of this appeal, we assume
without deciding that the statute does so. Cf. Anderson v. Anderson , No. A16-2006, at 3
(Minn. Aug. 6, 2018) (order); id. at D1 (Gildea, C.J., dissenting); see also Madden v.
Madden, 923 N.W.2d 688, 702 (Minn. App. 2019).

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for Elizabeth’s statement. We need not consider whether there is factual support for
Elizabeth’s argument. A ny such evidence would b e irrelevant because this court has
expressly stated that a district court may award conduct-based attorney fees “regardless of
the payor’s ability to contribute to a fee award. ” See Geske, 624 N.W.2d at 818; see also
Dabrowski, 477 N.W.2d at 766. In light of this court’s caselaw, Elizabeth’s financial
condition is not a reason to reverse the district court’s award of conduct -based attorney
fees. Elizabeth does not challenge the award on any other ground.
Thus, the district court did not err by awa rding John $4,000 in conduct -based
attorney fees.
Affirmed.