In re the Marriage of: Donald Wayne Leeke, petitioner, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0539

In re the Marriage of:
Donald Wayne Leeke, petitioner,
Appellant,

vs.

Susan Lynn Webb Leeke, n/k/a Susan Lynn Leeke,
Respondent.

Filed April 4, 2022
Affirmed in part, reversed in part, and remanded
Frisch, Judge

Dakota County District Court
File No. 19AV-FA-12-1083

John D. Reddall, Kretsch Law Office, PLLC, Lakeville, Minnesota (for appellant)

Wayne A. Jagow, Jagow Law Office, P.A., Burnsville, Minnesota (for respondent)

Considered and decided by Gaïtas, Presiding Judge; Frisch, Judge; and Halbrooks,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant appeals the district court’s modification of his child -support obligation,
denial of reimbursement of excess payments made to respondent, and award of both need-

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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and conduct-based attorney fees to respondent. We affirm in part, reverse in part, and
remand.
FACTS
In November 2012, the district court entered a stipulated judgment (the judgment)
dissolving the marriage of appellant Donald Wayne Leeke (fa ther) and respondent Susan
Lynn Leeke (mother), which awarded the parties joint legal custody of their twin son and
daughter, with mother having primary custody and father receiving parenting time on a
regular basis . In 2013, the district court calculated father’s child -support obligation to
mother at $1,752 per month.
In February 2019, father stopped exercising parenting time with daughter. Father
continued to exercise his regular parenting time with son. Between March and September
2019, father sent to mother $1,200 in excess child-support payments.
In September 2019, mother brought a motion to modify father’s custody and
parenting time of daughter and to modify father’s child -support obligation. In February
2020, mother amended her motion to include claims for unreimbursed expenses related to
the children. Mother also sought attorney fees.
The district court held a motion hearing i n March 2020 . At the hearing, father
expressed his willingness to settle some o f the claims related to expenses he had failed to
pay mother and the district court directed the parties to enter into a stipulated agreement as
to issues not in dispute. The parties resolved a majority of the expense disputes by
stipulation and father agreed to pay mother $7,276.57. But six issues remained unresolved:
custody modification, child -support modification, a $200 babysitting expense, expenses
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related to a co -parenting expense tracking program, the repayment of the $1,200 paid to
mother in excess of father’s child-support obligation, and attorney fees.
In July 2020, the district court entered an order, in relevant part, granting mother’s
request to increase father’s child-support obligation, den ying father’s request for
reimbursement of $1,200, and award ing mother attorney fees. The order contained no
findings of fact or conclusions of law, did not identify an effective date for the application
of father’s child -support modification, and did not include the amount of attorney fees
awarded to mother or the basis for an award of such fees.
Father filed a motion seeking additional and amended findings of fact. Mother also
filed a motion for amended findings to clarify the effective date for the child -support
modification and for specifica tion of the attorney-fees award. In December 2020, a
different district court judge held a hearing to decide these motions.1
In February 2021, the district court issued amended findings of fact and conclusions
of law. It found in relevant part that modification of father’s child-support obligation was
justified due to father not exercising parenting time with daughter and that an upward
deviation from the child-support guidelines was appropriate, that father was not entitled to
reimbursement of the $1,200 because those payments were intended to compensate mother
for father not exercising any parenting time with daughter, and that mother was entitled to
both need- and conduct-based attorney fees based on the disparity in income between the
parties and other actions taken by father. Father appeals.

1 The district court judge that presided over the initial hearing had retired, necessitating a
reassignment of this matter to a new district court judge.
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DECISION
I. The district court made insufficient factual findings to justify its calculation of
the parenting-expense adjustment.

Father challenges the district court’s order increasing his child-support obligation,
arguing that in calculating the obligation, the district court impermissibly relied on
assumptions unrelated to the parenting time set forth in the judgment. The district court
has broad discretion to determine the appropriate support of the parties’ children, and we
will only reverse such a determination for an abuse of that discretion. Rutten v. Rutten ,
347 N.W.2d 47, 50 (Minn. 1984). “A district court abuses its discretion by making findings
of fact that are unsupported by the evidence, misapplying the law, or delivering a decision
that is against logic and the facts on record.” Bender v. Bernhard, ___ N.W.2d ___, ___,
No. A20-1234, slip op. at 8 (Minn. Mar. 9, 2022) (quotation omitted).
After computing each parent’s basic support obligation pursuant to Minn. Stat.
§ 518A.34 (2020), the district court must apply the parenting -expense adjustment
calculation, which reflects the presumption that a parent exercising their parenting time
incurs childcare costs. Minn. Stat. § 518A.3 6, subds. 1 (a), 2 (2020). In so doing, the
district court must make findings regarding “the approximate number of annual overnights
the child or children will likely spend” with each parent. Id., subd. 2(b)(1), (2).
The district court did not make factual findings regarding the approximate number
of annual overnights daughter would likely spend with father. The district court instead
“assumed” that father spent 120 overnights per year with son and none with daughter and
based its calculations on that assumption. The district court must make findings to “permit
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reasoned appellate review” and to ensure that “the relevant statutory factors have been
addressed.” Hesse v. Hesse, 778 N.W.2d 98, 104 (Minn. App. 2009) (citing Rosenfeld v.
Rosenfeld, 249 N.W.2d 168, 171 (Minn. 1976)). An assumption is not a finding tha t is
susceptible to meaningful review. We must therefore remand this issue to the district court
to make explicit findings as to the approximate number of annual overnights daughter will
likely spend with father and to use that number to calculate the par enting-expense
adjustment, if any. To be clear, o nce the district court determines the proper adjustment
and calculate s the presumptively appropriate child-support obligation, the district court
may, in its discretion, deviate from this total if it believes it should do so and makes the
required findings.2 Minn. Stat. §§518A.37, subd. 2, .43, subd. 1 (2020).

2 We note that at oral argument, both parties made cursory reference to the effect certain
statutory amendments may have on the calculation. But this issue was not presented to the
district court, nor was it briefed on appeal, and we therefore do not consider it. Because
the post-amendment interpretation of Minn. Stat. § 518A.36 (2020) was not argued before
the district court, the issue was not considered by the district court, and because the issue
was not briefed on appeal, we decline to consider this issue. Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988) (stating that appellate courts generally consider only those questions
previously presented to and considered by the district court); see State, Dep’t of Labor &
Indus. v. Wintz Parcel Drivers, Inc. , 558 N.W.2d 480, 480 (Minn. 1997) (declin ing to
review questions that were not adequately briefed); Brodsky v. Brodsky, 733 N.W.2d 471,
479 (Minn. App. 2007) (applying Wintz in a family-law appeal). On remand, however, the
parties may present argument to the district court regarding their interpretation of Minn .
Stat. § 518A.36 and whether the amended statute requires the number of overnights to be
calculated based on the number of overnights set forth in the judgment or based on father’s
actual exercise of parenting time.
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II. The district court did not abuse its discretion by denying father a
reimbursement for the $1,200 he paid to mother.

Father argues that the district court abused its discretion by declining to apply a
$1,200 credit to his child -support obligations or other child -related expenses based on a
series of extra payments father made to mother before mother filed her motion in this case.
It is within the district court’s authority to grant equitable relief. Bauerly v. Bauerly,
765 N.W.2d 108, 111 (Minn. App. 2009) (citing DeLa Rosa v. DeLa Rosa , 309 N.W.2d
755, 758 (Minn. 1981)). We review a district court’s award of an equitable remedy for an
abuse of discretion. Metro. Life Ins. Co. v. Belland , 583 N.W.2d 592, 593 (Minn. App.
1998) (citing City of Cloquet v. Cloquet Sand & Gravel, Inc., 251 N.W.2d 642, 644 (Minn.
1977)). The district court must also support its decision wi th specific findings justifying
equitable relief. Nelson v. Nelson, 384 N.W.2d 468, 471 (Minn. App. 1986).
Here, the district court rejected father’s argument that the additional payments were
to offset the payment of other expenses. By doing so, it implicitly credited mother’s
argument that these payments were to compensate her because father no longer exercised
parenting time with daughter. See Pechovnik v. Pechovnik , 765 N.W.2d 94, 99 (Minn.
App. 2009) (“The district court’s findings implicitly indicate that the district court found
respondent’s testimony credible. We defer to this credibility determination.”); Haefele v.
Haefele, 621 N.W.2d 758, 763 (Minn. App. 2001) (“Where evidence relevant to a factu al
issue consists of conflicting testimony, the district court’s decision is necessarily based on
the credibility of the witnesses. We give district courts broad discretion precisely because
they are in the best position to determine which witnesses are credible.” (citation omitted)),
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rev. denied (Minn. Feb. 21, 2001) . We see no abuse of discretion by the district court in
choosing to credit mother’s explanation for the $1,200 payments by father as opposed to
father’s explanation for these payments.
III. The district court abused its discretion by awarding need-based attorney fees
to mother but acted within its discretion by awarding conduct-based attorney
fees to mother.

Father argues that the district court abused its discretion by awarding need- and
conduct-based attorney fees to mother. A district court has discretion to award need-based
or conduct-based attorney fees, and we will not reverse a district court’s award of attorney
fees absent an abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999); see
Minn. Stat. § 518.14, subd. 1 (2020 ). “A district court abuses its discretion by making
findings of fact that are unsupported by the evidence, misapplying the law, or delivering a
decision that is against logic and the facts on recor d.” Bender, ___ N.W.2d at ___, No.
A20-1234, slip op. at *8 (quotation omitted). Here, father challenges the district court’s
finding that mother was entitled to a lump-sum fee award of $5 ,000, representing both
need- and conduct-based attorney fees.
Need-Based Attorney Fees
The party seeking need-based attorney fees must prove that
(1) the fees are necessary for the good -faith assertion of the
party’s rights . . . 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 to
whom fees are awarded does not have the means to pay them.

Phillips v. LaPlante , 8 23 N.W.2d 903, 907 (Minn. App. 2012); see also Minn. Stat.
§ 518.14, subd. 1.
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“Conclusory findings on the statutory factors do not adequately support a fee
award.” Geske v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001). However, failure
to make specific findings is not fatal to an award “where review of the order ‘reasonably
implies’ that the district court considered the relevant factors and where the district court
‘was familiar with the history of the case’ and ‘had access to the parties’ financial records.’”
Id. (quoting Gully, 599 N.W.2d at 825 -26). “When an attorney -fee award turns on the
construction and application of a statute, it presents a question of law, which is reviewed
de novo.” Sanvick v. Sanvick, 850 N.W.2d 732, 737 (Minn. App. 2014).
The district court did not make sufficient findings to justify an award of need-based
attorney fees.3 Instead, the district court found that , with an annual income of $144,000,
mother’s financial needs were not as significant as those of other litigants, but considering
father’s annual income of over $700,000, mother had a “relative” need for attorney fees.
Such a finding is an insufficient basis to award need -based attorney fees. Geske, 624
N.W.2d at 817 n.2 (noting that, after 1990 amendment of the attorney-fee statute, the mere
existence of a disparity in income, without a finding that the recipient cannot afford
attorney fees, is an inadequate basis for a fee award under Minn. Stat . § 518.14 ). In
addition, the district court made no findings regarding the current annual expenses of the
parties, and the record does not contain such evidence. In the absence of such findings, the
district court was unable to determine whether mother has the means to pay her attorney

3 We observe that the presiding district court judge was only recently assigned to the case,
and he therefore understandably lacked familiarity with the parties , their respective
circumstances, and their lengthy litigation history.
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fees. See id. at 818 (remanding because district court made insufficient findings to support
a need-based award when it failed to consider the expenses of one of the parties). We
therefore remand the issue of need-based attorney fees to the district court for appropriate
findings, and the district court may, in its discretion, reopen the record to facilitate such
findings.4
Conduct-Based Attorney Fees
A district court may exercise its discretion to 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. Generally, conduct-based fees are based on
conduct occurring during the course of litigation. Baertsch v. Baertsch, 886 N.W.2d 235,
238 (Minn. App. 2016).
The district court must make findings that explain the basis for an award of
conduct-based attorney fees. Brodsky, 733 N.W.2d at 477. The party moving for attorney
fees has the burden to show that the conduct of the other party warrants an award. Baertsch,
886 N.W.2d at 238. We review an award of c onduct-based attorney fees for an abuse of
discretion. Sanvik, 850 N.W.2d at 737.

4 Father argues that mother’s motion for attorney fees did not comply with the requirements
of Minn. R. Gen. Prac. 119.02 because she “failed to provide a description of each item of
work performed, the date upon which it was performed, and the amount of tim e spent on
each item of work.” Because we remand to the district court to make threshold findings of
whether mother is entitled to need-based fees, we defer to the discretion of the district court
as to whether to reopen the record to allow mo ther to supplement her application for fees
in accordance with Rule 119.
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Here, the disputes giving rise to the motion hear ing before the district court
originated from father’s choice not to exercise any parenting time with daughter. This
choice manifested itself in several issues that the district court was ultimately forced to
decide. Although the parties ultimately settl ed some of the contested issues before the
district court issued its ruling , not all of the issues were resolved. One of th e remaining
disagreements was related to father’s refusal to exercise his designated parenting time with
daughter during spring break, necessitating a $200 babysitting fee that father refused to
pay. Another dispute arose when father was banned from daughter’s volleyball games and
thereafter refused to pay his share of activity fees for her continued participation on the
team. The district court found that father’s conduct giving rise to these and other remaining
contested disputes unnecessarily contributed to the length of the proceeding and caused
mother to incur fees to litigate issues on which she was largely correct. These factual
findings are well -supported by the record, and it was not an abuse of discretion for the
district court to determine that an award of conduct -based attorney fees to mother was
appropriate.
The district court, however, abused its discretion by combining need - and
conduct-based fees in a single award, without designating those amounts of the award as
need- or conduct-based. Because we remand to the district court to make findings as to
whether need-based attorney fees are appropriate, we cannot affirm the totality of the lump-
sum fee award and must remand to the district court to separately specify its award of
conduct-based attorney fees.
Affirmed in part, reversed in part, and remanded.