In re the Marriage of: Nathan Winesett, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (201 8).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1284

In re the Marriage of:
Nathan Winesett, petitioner,
Appellant,

vs.

Heather Winesett,
Respondent.

Filed April 20, 2020
Affirmed
Bjorkman, Judge

St. Louis County District Court
File No. 69DU-FA-13-894

Nathan S. Winesett, Duluth, Minnesota (pro se appellant)

Diana Bouschor Dodge, Amanda M. Mangan, Johnson, Killen & Seiler, P.A., Duluth,
Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Johnson, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant-father challenges the district court’s orders granting respondent-mother’s
motion to reduce child support, denying appellant’s motion to increase spousal

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maintenance, appointing a parenting -time expeditor, and denying appellant’s motion for
attorney fees. Because the district court did not abuse its discr etion, we affirm.
FACTS
In July 2014, t he 16 -year marriage of appellant Nathan Winesett and respondent
Heather Winesett was dissolved based on a stipulated agreement. The parties agreed to
share legal and physical custody of their four minor children. At the time of the dissolutio n,
mother earned $178,000 annually. The parties imputed annual income of $30,000 to father,
who was “nominally employed” but looking for full -time employment as an attorney .
Mother agreed to pay father $3,000 in monthly child support, an upward deviation from
the child-support guidelines, and $1,000 in month ly spousal maintenance. The parties
further agreed: “After four years, the Court shall calculate support based on the guidelines
for equal parenting time unless the parent ing time arrangement is different from the equal
time contemplated by this settlement.”
On October 12, 2018, mother moved the district court to decrease her child-support
obligation and appoint a parenting-time expeditor. She notified father that a hearing was
scheduled for October 26 and his response was due five days before the hearing. See Minn.
R. Gen. Prac. 303.03(a)(3); see also Minn. R. Gen. Prac. 303.03(a)(2) (requiring response
raising “new issues” to be filed ten days before hearing).1 Father requested a continuance,
which the district court denied.

1 The rules of general practice were amended effective January 1, 2020, altering the
timelines for motion practice in a family-law proceeding. We cite the version in effect at
the time of the parties’ motions.

3
Four days before the hearing, father filed a responsive motion. He asked the district
court to deny mother’s motion to reduce child support or, in the alternative, to increase her
maintenance obligation. He also requested that she be ordered to pay maintenance and
child support by automatic withholding and proposed a different parenting-time expeditor.
Because father’s motion was untimely, t he district court permitted mother to respond in
writing after the hearing.
The district court granted mother’s motion , reducing child support to $1,334 per
month pursuant to the guidelines, and denied father’s motion to increase maintenance. The
court also appointed a parenting-time expeditor and ordered the parties to share the cost
equally. Father requested reconsideration, which the district court denied. Father then
moved to vacate or amend the order and sought an award of need-based attorney fees in an
unspecified amount. The district court denied the motion in all respects. Father appeals.
D E C I S I O N
As a preliminary matter, father argues that he is entitled to relief because the district
court committed procedural error. We disagree. Father forfeited any objection to
conducting the October 26 hearing without prior settlement efforts, see Putz v. Putz , 645
N.W.2d 343, 350 (Minn. 2002), and the district court did not abuse its discretion by giving
mother a n opportunity to resp ond to father’s untimely motion to increase spousal
maintenance, see Minn. R. Gen. Prac. 303.03(b) (providing that the court may take
“appropriate action” when a party fails to timely respond to a motion); Braith v. Fischer ,
632 N.W.2d 716, 721 (Minn. App. 2001) (recognizing district court’s discretion in

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procedural rulings), review denied (Minn. Oct. 24, 2001) . We therefore turn to father’s
substantive arguments.
I. The district court did not abuse its discretion by reducing child support and
declining to increase spousal maintenance.

A district court may modify an award of child support or spousal maintenance if
there has been a substantial change in circumstances that makes the existing award unfair
and unreasonable. Minn. Stat. § 518A.39, subd. 2(a) (2018). A district court has broad
discretion in its decisions regarding child support and spousal maintenance, and we will
not reverse absent a clear abuse of discretion . Melius v. Melius , 765 N.W.2d 411, 414
(Minn. App. 2009) (maintenance); Butt v. Schmidt , 747 N.W.2d 566, 574 (Minn. 2008)
(support). A district court abuses its discretion if it makes clearly erroneous factual
findings or misapplies the law. Johnson v. Johnson, 902 N.W.2d 79, 84 (Minn. App. 2017);
McConnell v. McConnell, 710 N.W.2d 583, 585 (Mi nn. App. 2006).
In challenging the district court’s child -support decision , f ather first contends the
district court erred by finding that mother’s monthly gross income is $15,833 because she
also earns bonus pay. This argument is unavailing. Gross income includes “any form of
periodic payment t o an individual.” Minn. Stat. § 518A.29 (2018) . Bonuses may be
included in calculating gross income, but only if they are regular, dependable forms of
payment. See Haasken v. Haasken, 396 N.W.2d 253, 261 (Minn. App. 1986) (conclud ing
irregular annual bonuses ranging from $0 to $9,000 did not constitute income); Desrosier
v. Desrosier, 551 N.W.2d 507, 508 -09 (Minn. App. 1996) (concluding annual bonuses
ranging from $7,000 to $17,000 constituted income). That is not the case here.

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Mother attested that she earns $15,833 per month in the affidavit she submitted with
her motion. And she provided her three most recent tax returns, reflecting annual gross
income of between approximately $180,000 and $190,000, and her four most recent
paystubs, reflecting an hourly rate of $91.35. Father asserts that mother’s October 2018
paystub mandates a finding of gross income of $203,864 because it included bonus pay
and reflected year-to-date earnings that extrapolate to that amount for the year. We are not
persuaded. T he financial information available to the court reflects overall that mother
earns approximately $190,000 annually with some possibility but no guarantee of
additional income in the form of bonuses. On this record , the district court did not clea rly
err by finding mother earns monthly gross income of $15,833.
Father next argues that modification is not warranted because the parties’ financial
circumstances “have not substantially changed” since they agreed that $3,000 in monthly
child support was in the children’s best interests. But as the district court noted, the parties’
agreement expressly permits the court to modify child support to the guidelines amount
after four years. In essence, the parties agreed that the passage of four years is itse lf a
material change in circumstances, after which an upward deviation from the guidelines is
no longer in the children’s best interests.
Moreover, that agreement is consistent with the governing statute. A substantial
change in circumstances is presumed if the application of the child-support guidelines to
the parties’ current circumstances “results in a calculated court 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) (2018); see also Frank-Bretwisch v. Ryan, 741 N.W.2d 910,

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914 (Minn. App. 2007) (recognizing that where the support obligation sought to be
modified was a deviation from the guidelines amount, the change in circumstances
necessary to justify modifying support to the guidelines amount “is limited at best ”). As
the district court found, application of the guidelines, based on the parties’ current income
and their equal parenting time, calls for mother to pay monthly child support of $1,334.
Because that is less than half of the current support order, the district court did not abuse
its discretion by modifying child support.
Finally, father contends that the district court erred by setting child support at the
guidelines level without making findings regarding the children’s best interests. But it was
not required to do so. A court must consider various factors in determining whether to
deviate from the presumptive child -support obligation. Minn. Stat. § 518A.43, subd. 1
(2018) (listing general factors). It is required to make findings regarding the children’s
best interests only if it deviates. Minn. Stat. § 518A.37, subd. 1 (2018). Because the district
court set support at the rebuttably appropriate guidelines amount, the district court did not
abuse its discretion by failing to make express findings regarding the children’s best
interests.
We are likewise unpersuaded that the district court abused its discretion by denying
father’s motion to increase spousal ma intenance. Father asserts that the reduction in child
support to a guidelines level is a change in his circumstances that makes the amount of
spousal maintenance unfair. The district court found otherwise because (1) father “remains
underemployed” and (2) the stipulated agreement expressly contemplates a reduction in

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child support after four years but unchanged spousal maintenance and continued equal
parenting time. The record supports both aspects of the district court’s decision.
First, the record supports the district court’s finding that father is “underemployed. ”
At the time of the dissolution, father agreed to seek full -time employment as an attorney ,
and the parties agreed to impute to him $30,000 in annual income. Father now works as
an attorney at his parents’ Florida law firm, earning $30,000 per year . He attested that he
was unable to obtain local employment or a higher paying position. B ut mother presented
evidence that entry-level legal jobs are available in Minnesota, and pay more than $53,000.
The district court did not clearly err in finding that, to the extent father needs more income
than the $30,000 he currently earns, he is underemployed.
Second, the stipulated agreement did not require the district court to modify spousal
maintenance. Under the stipulation, the parties agreed that, during the first four years after
the dissolution, “the amount of maintenance and child support are so tied together that it
would be inequitable to modify one without review of the other.” Father contends this
provision indicates that a change in child support now requires reconsideration of spousal
maintenance. But, unlike with child support, the parties did not contemplate a change in
spousal maintenance after four years. To the contrary, after four years, the parties no longer
agree that child support should exceed the guidelines level, and no longer agree that spousal
maintenance is “tied” to child support. Because father did not demonstrate that reducing

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child support makes the agreed-upon a mount of spousal maintenance unfair, the district
court did not abuse its discretion by denying his motion to increase spousal maintenance.2
II. The district court did not abuse its discretion by appointing a parenting -time
expeditor and requiring the parties to share the cost equally.

“A ‘parenting time expeditor ’ is a neutral person authorized to use a mediatio n -
arbitration process to resolve parenting time disputes.” Minn. Stat. § 518.1751, subd. 1b(c)
(2018). A district court may appoint an expeditor upo n either party’s motion. Id., subd. 1
(2018). If the parties do not agree on an expeditor, the court shall select one from an
approved roster. Id., subd. 2(a), (b) (2018). On appeal, we review the decision to appoint
a parenting-time expeditor for an a buse of discretion. Nolte v. Mehrens, 648 N.W.2d 727,
731-32 (Minn. App. 2002) (noting district court’s discretion in parenting-time matters).
Mother and father both asked the district court to appoint an expeditor, each
proposing a different person to fill that role. The court appointed a different expeditor from
the approved roster. Father contends the district court abused its discretion because it did
not follow the statutory process for when parties disagree—providing a roster of approved
expeditors to the parties, requiring them to exchange the names of three potential
expeditors to try and agree on one, and only if that fails selecting one or two expeditors.
Minn. Stat. § 518.1751, subd. 2(b). But even if that is true, father has not demonstrated
resulting prejudice. Braith, 632 N.W.2d at 724 (discerning no prejudice from district court

2 Father also argues that the district court erred by denying his request to have mother pay
maintenance and support by automatic withholding. Because he did not provide the district
court any au thority for this request, and he identifies none on appeal , we deem this
argument forfeited. Grigsby v. Grigsby, 648 N.W.2d 716, 726 (Minn. App. 2002), review
denied (Minn. Oct. 15, 2002).

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“omitt[ing] a required step” in appointing expeditor ). Since each party had an opportunity
to state a n expeditor preference and father identifies no reason to doubt the suitability of
the appointed expeditor, we conclude that any error in the appointment process was
harmless. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored).
A district court has discretion to “ apportion the fees of the expeditor among the
parties, with each party bearing the portion of fees that the court determines is just and
equitable under the circumstances. ” Minn. Stat. § 518.1751, subd. 2a (2018). Father
contends it was an abuse of discretion to require him to pay half, r ather than his income -
proportionate share. We disagree. While the parties have disparate incomes, they share
equal parenting time and both requested a parenting-time expeditor. The district court did
not abuse its broad discretion in ordering the parties to split the expeditor’s fees.
III. The district court did not abuse its discretion by denying fat her’s request for
attorney fees.

A district court shall award attorney fees if it finds that (1) the fees are “necessary
for the good faith assertion of the party’s rights in the proceeding and will not contribute
unnecessarily to the length and expense of the proceeding ,” (2) the party from whom fees
are sought has the means to pay them, and (3) the party seeking fees “does not have the
means to pay them.” M inn. Stat. § 518.14, subd. 1 (2018). The party seeking fees has the
burden of proving all three factors. Phillips v. LaPlante , 823 N.W.2d 903, 907 (Minn.
App. 2012). The district court has discretion to determine whether the moving party has
met that burden. Kielley v. Kielley, 674 N.W.2d 770, 780 (Minn. App. 2004) .

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Father sought an award of need-based fees, asserting that the reduction in child
support will cause him “hardship.” He contends the district court abused its discretion by
denying his re quest without explanation. We are not persuaded. While express findin gs
facilitate our review, the district court’s decisions plainly reflect its determination that
father failed to demonstrate that he lacks “the means” to pay his attorney fees. Cf. Geske
v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001) (reasoning that a lack of specific
findings “is not fatal” to a need-based fee award where review of the order “reasonab ly
implies” that the court considered the relevant factor s and the court was familiar with the
parties’ circumstances (quotation omitted)). The district court expressly rejected father’s
contention that the reduction in child support leaves him in need, finding that he is able to
make up the difference by obtaining higher paying employment. As such, e ven if father
does not currently have the funds to pay his attorney, he has “the means” to acquire those
funds. On this record, we discern no abuse of discretion in the district court’s denial of
father’s request for need-based attorney fees.
Affirmed.