In re the Marriage of:

This opinion is nonprecedential except as provided by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
A23-0848

In re the Marriage of:

Teresa Marie Nordahl, petitioner,
Respondent,

vs.

Steven Edward Nordahl,
Appellant.

Filed July 29, 2024
Affirmed in part, reversed in part, and remanded; motion denied
Ede, Judge

Anoka County District Court
File No. 02-FA-15-263

Kay Nord Hunt, Michelle K. Kuhl, Lommen Abdo, P.A., Minneapolis, Minnesota; and

Ryan Anderson, Anderson Family Law, Golden Valley, Minnesota (for respondent)

Michelle K. Olsen, Jacob M. Birkholz, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Considered and decided by Wheelock, Presiding Judge; Ede, Judge; and Halbrooks,
Judge.
*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
EDE, Judge
In this spousal-maintenance dispute, appellant argues that the district court abused
its discretion in denying his motion to modify spousal maintenance because the district
court made clearly erroneous factual findings in deciding whether to include bonuses,
overtime pay, and an employee stock option plan (ESOP) in its calculation of respondent’s
gross income. By notice of related appeal, respondent asserts that the district court abused
its discretion by denying her motion for need- and conduct-based attorney fees. Appellant
moves to strike portions of respondent’s brief, maintaining that certain statements are
unsupported by the record. Because we conclude that the district court did not abuse its
discretion by excluding bonuses and overtime pay from its calculation of respondent’s
gross income and by denying respondent’s motion for conduct-based attorney fees, we
affirm in part. But because we conclude that the district court abused its discretion by
neglecting to make findings of fact about whether the ES OP was a form of periodic
payment to respondent and that this error may require reconsideration of respondent’s
motion for need-based attorney fees, we reverse in part and remand for further proceedings.
We also deny appellant’s motion to strike as moot.

3
FACTS
Appellant Steven Edward Nordahl and respondent Teresa Marie Nordahl were
married for about 25 years. 1 The parties separated in December 2013, and in July 2014,
Teresa petitioned for dissolution of the marriage.
In February 2016, the district court filed a dissolution decree. Steven moved for
amended findings of fact, and in April 2016, the district court entered an amended decree.
In the amended decree, the district court revised certain dollar amounts, but the outcome
of the dissolution remained substantially the same. The district court awarded Teresa
temporary spousal maintenance of $2,500 per month —to be paid until 2028 —and need-
based attorney fees.
Steven appealed the district court’s dissolution decree, challenging the district
court’s award of spousal maintenance and attorney fees. Nordahl v. Nordahl, No. A16 -
1020, 2017 WL 1548617, at *2, *4 (Minn. App. May 1, 2017), rev. denied (Minn. July 18,
2017). Steven argued, among other things, that the district court abused its discretion in
awarding spousal maintenance by not including her employer’s contributions to the ESOP
in the district court’s calculation of Teresa’s income. Id. at *3. We noted that Teresa’s
ESOP had “partial vesting after three years and full vesting after seven years” and that
“Teresa’s interest in the ESOP was unvested at the time of trial and [would] not fully vest
until 2021.” Id. at *1, *3. Reasoning that “any benefit from the ESOP is contingent on
future events,” we affirmed the district court’s decision in that appeal, concluding that “the

1 Because the parties have the same surname, we refer to them throughout this opinion by
their first names.
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district court did not abuse its discretion by not considering the value of Teresa’s interest
in the ESOP.” Id. at *3.
In 2018, Teresa notified Steven that the spousal-maintenance award would be
adjusted for cost of living, consistent with the district court’s amended decree. In 2022,
Steven was again notified that the spousal-maintenance award would be adjusted for cost
of living. In response to the second cost-of -living adjustment, Steven filed a motion
requesting that the district court order a reduc tion in his spousal-maintenance obligation
and allow him to forgo the second adjustment.
Teresa then moved for an award of need- and conduct-based attorney fees. Teresa’s
motion was supported by two affidavits. In the first affidavit, Teresa’s counsel alleged that
Steven had unreasonably contributed to the length of the post-decree proceeding by
“serving unduly burdensome and overly broad formal discovery requests, and failing to
engage in any alternative dispute resolution efforts.” In the second affidavit, Teresa
requested need-based attorney fees based on Steven’s “much higher income level” and
conduct-based attorney fees based on Steven’s decision to “engage in expensive litigation
and discovery processes on nothing more than his ‘belief[.]’” Teresa also maintained that
the current spousal-maintenance obligation was reasonable and fair.
Steven later filed a motion requesting that the district court continue the motion for
modification of spousal maintenance, compel Teresa to comply with Steven’s discovery
requests, and award conduct-based attorney fees for Teresa’s failure to comply with his
discovery requests. In a memorandum accompanying the motion, Steven asserted that he
met the standard to establish the modification of spousal maintenance. Steven argued that,
5
because Teresa’s income had increased by approximately 53 percent, from $17 per hour to
$26 per hour, the current order was unreasonable and unfair. Steven also contended that,
because Teresa had sufficient resources to meet her needs, the district court should
terminate her award of spousal maintenance. As to attorney fees, Steven maintained that
Teresa failed to establish that he unreasonably contributed to the length of the proceeding
and that he should be awarded attorney fees because Teresa delayed the proceedings by
failing to comply with discovery requests.
At a motion hearing in September 2022, the parties discussed Steven’s discovery
motion. At the outset, the district court commented that it had “never seen such an onerous
request” and inquired “why [Steven thought] that [he was] entitled to everything that [he
was] asking for” because the district court had “never seen anything like it.” Steven’s
attorney explained that Steven was requesting the information about Teresa’s life
insurance, mortgage, and new employment. Teresa’s counsel responded that Teresa was
doing her best to provide the district court with the requested information.
The district court addressed Teresa’s contention that the discovery was “onerous”
by stating that it did not “expect her to go hire an expert and do . . . forensic examinations.”
But the district court also said that it did not “understand why she [could not] . . . just . . .
submit bills to prove up [her] budget” because, in examining her budget, the district court
identified “things that [it could not] figure out” and did not “think [it was] onerous to have
her submit bills, so that [the district court could] figure how much she spends each month
on various things.” The district court therefore ordered Teresa to provide information on
6
her life insurance, mortgage, and new employment, and the district court ordered Steven
to provide reciprocal discovery.
Responding to the district court’s request that the parties brief their issues, Steven
filed a memorandum in which he requested that the district court consider Teresa’s ESOP
as income, asserting that the ESOP was fully vested and that Teresa’s employer made
annual contributions to it. Teresa disagreed and argued that the ESOP is an illiquid
retirement account that she cannot access until she retires from the company or reache s
70.5 years old. Teresa also maintained that Steven had “ample resources to pay all [her]
attorney fees.” The district court later filed an order denying both parties’ requests for
conduct-based attorney fees. The district court found that, although discovery had been
complex, neither party “unnecessarily delayed the proceedings nor . . . unreasonably
contributed to the expense of the proceeding.”
In February 2023, the district court filed an order denying Steven’s motion to
modify maintenance. In calculating Teresa’s gross income, the district court did not include
overtime or bonus income. Nor did the district court include Teresa’s ESOP in her gross
income. Instead, the district court found that the ESOP “was not a liquid asset.” The district
court also found that both Teresa’s and Steven’s gross incomes had increased since the
dissolution decree, as did each of their monthly expenses. Teresa’s pay had increased to
$26 an hour and Steven’s pay had increased to $64.27 an hour. But the district court found
that the increases in income were not a substantial change in circumstances. And the district
court found that, even if the increased incomes were a substantial change, Steven had failed
to establish that the spousal-maintenance award was unreasonable or unfair.
7
Despite having already ruled on the parties’ motions for conduct- based attorney
fees, the district court reiterated that those motions were denied because the proceedings
were not delayed by the need to clarify or limit discovery and “[n]either party ha[d] acted
unreasonably or increased the cost or length of the proceedings.” The district court also
denied Teresa’s motion for need-based attorney fees, reasoning that—even though Steven
had the means to pay Teresa’s attorney fees— Teresa also had the means to pay such fees.
Steven appeals and Teresa cross-appeals.
DECISION
On appeal, Steven maintains that the district court abused its discretion in denying
his motion to modify spousal maintenance by making clearly erroneous findings of fact
about whether Teresa’s bonuses, overtime pay, and ESOP are part of her gross income. In
her cross-appeal, Teresa asserts that the district court abused its discretion by denying her
motions for need- and conduct- based attorney fees. Steven moves to strike portions of
respondent’s brief, asserting that certain statements are unsupported by the record. We
address each of the parties’ arguments in turn.
I. The district court abused its discretion in denying Steven’s motion to modify
spousal maintenance.

“A district court has broad discretion in its decisions regarding spousal maintenance,
and we will not reverse absent a clear abuse of discretion.” Sinda v. Sinda, 949 N.W.2d
170, 174 (Minn. App. 2020). “A court abuses its discretion if it makes findings of fact that
are not supported by the record, misapplies the law, or resolves the matter in a manner that
is contrary to logic and the facts on record.” Id. at 175 (quotation omitted). “A district
8
court’s determination of income for maintenance purposes is a finding of fact and is not set
aside unless clearly erroneous.” Peterka v. Peterka, 675 N.W.2d 353, 357 (Minn. App.
2004). “Factual findings are clearly erroneous when they are ‘manifestly contrary to the
weight of the evidence or not reasonably supported by the evidence as a whole.’” Sinda,
949 N.W.2d at 175 (quoting McConnell v. McConnell, 710 N.W.2d 583, 585 (Minn. App.
2006)).
A district court may modify an award of spousal maintenance if the party seeking
such modification demonstrates “a substantial change in circumstances that makes the
existing award ‘unreasonable and unfair.’” Madden v. Madden, 923 N.W.2d 688, 696
(Minn. App. 2019) (quoting Minn. Stat. § 518A.39, subd. 2(a), (b) (2018)). “One of the
statutory modification factors that may support a finding of a substantial change in
circumstances is the ‘substantially increased or decreased gross income of an obligor or
obligee.’” Backman v. Backman, 990 N.W.2d 478, 485 (Minn. App. 2023) (quoting Minn.
Stat. § 518A.39, subd. 2(a)(1) (2022)).
“In determining a party’s ‘gross income,’ a district court must apply the statutory
definition of that term in chapter 518A.” Id. (citing Minn. Stat. § 518A.26, subd. 1 (2022))
(other citations omitted). “The statutory definition of ‘gross income’ refers to section
518A.29.” Id. (citing Minn. Stat. § 518A.26, subd. 8 (2022)). “Section 518A.29 states that
‘gross income’ includes ‘any form of periodic payment to an individual,’ such as salaries,
wages, and disability benefits, among other things, and also includes ‘potential income
under section 518A.32.’” Id. (quoting Minn. Stat. § 518A.29(a) (2022)). As the supreme
court has noted, the term “‘payment’ . . . generally means that a benefit must be actually
9
received by the [party], as opposed to merely vested or owed, in order to constitute
income.” Haefele v. Haefele, 837 N.W.2d 703, 710 (Minn. 2013). And the term “‘periodic’
. . . generally means marked by repeated cycles[] or happening or appearing at regular
intervals.” Id. (quotations omitted).
A. The district court did not abuse its discretion by excluding Teresa’s
bonuses from her gross income.

Steven first argues that the district court abused its discretion by excluding Teresa’s
bonuses from her gross income. The record defeats this claim.
“Bonuses may be included in a party’s gross income, but only if they are a regular,
dependable form of payment.” Sinda , 949 N.W.2d at 176. The district court found that
Teresa’s company provided two bonuses. The first bonus was a profit-sharing bonus, which
the district court found was discretionary and could be terminated at any time. The second
bonus was a performance bonus, which the district court found was subject to yearly
change. Based on this information, the district court concluded that Teresa’s bonuses would
not be used to calculate her gross income because the bonuses were an inconsistent,
unpredictable, and unreliable form of income that were not guaranteed. This finding is not
clearly erroneous because it is supported by the record.
Teresa’s pay stubs from 2015 to 2022 establish that her bonuses are inconsistent,
ranging from $0 to $7,000. Several documents in the record also establish that the bonuses
are unpredictable and unreliable. For example, one document explains that employees only
receive bonuses when the company exceeds its net profit goals at midyear and year end.
Another document reflects that Teresa’s performance bonus program may change on a
10
yearly basis and can be discontinued. We have concluded that a district court does not
abuse its discretion by excluding a bonus from gross income when a bonus “may or may
not be paid every year depending on . . . profitability.” Haasken v. Haasken, 396 N.W.2d
253, 261 (Minn. App. 1986).
Considering the foregoing evidence, we discern no abuse of discretion because the
district court did not clearly err in finding that Teresa’s bonus compensation falls outside
the statutory definition of gross income.
B. The district court did not abuse its discretion by excluding Teresa’s
overtime from her gross income.

Steven next contends that the district court abused its discretion by excluding
Teresa’s overtime from her gross income. We are not persuaded.
Subject to other requirements not relevant to our analysis in this appeal, Minnesota
Statutes section 518A.29(b)(2)(iii) (2022) provides that gross income precludes
“compensation received by a party for employment in excess of a 40-hour work week,
provided that . . . the party demonstrates and the district court finds, that . . . the excess
employment is voluntary and not a condition of employment.” But “[w]here overtime
income has been a regular, steady source of income for the past several years, the [district]
court may properly include the overtime income . . . although the opportunity to work
overtime in the future may decrease.” Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn.
App. 1987).
Here, the district court found that there was no evidence before it that “overtime
[was] now required and [was] an integral part of [Teresa’s] position.” As an initial matter,
11
Steven argues that the district court misstated the legal standard for determining overtime
as income. Steven contends that the correct standard is whether overtime has been a steady
source of income, not whether overtime is voluntary or a condition of employment. But the
statute that governs the calculation of gross income states that such income does not include
overtime if “the party demonstrates, and the court finds, that . . . the excess employment is
voluntary and not a condition of employment.” Minn. Stat. § 518A.29(b)(2)(iii) (emphasis
added). Thus, the district court was merely applying the law to the facts at hand.
Steven contends that Teresa’s overtime pay should have been used to calculate her
gross income because overtime was a regular, steady source of compensation. But the
record evidence supports the district court’s finding that overtime was not a required or
integral part of Teresa’s employment.
Teresa’s pay stubs from the first few months of 2022 establish that her overtime
situation has remained substantially the same during that period. These records reflect that
overtime was not a required or integral part of Teresa’s employment, and Teresa did not
receive overtime pay as a steady source of income. Over those months, Teresa’s overtime
varied from zero to 13.08 hours in a two-week pay period. She worked only 58.85 hours
of overtime over five months.
This record evidence persuades us that the district court did not abuse its discretion
because its finding that Teresa’s overtime wages do not qualify as gross income is not
clearly erroneous.
12
C. The district court abused its discretion by declining to consider Teresa’s
ESOP in calculating her gross income.

Steven maintains that the district court abused its discretion by overlooking Teresa’s
ESOP as part of its gross-income calculation. This argument has merit.
The district court did not use Teresa’s ESOP to calculate her annual gross income
because it determined that the ESOP was “not a liquid asset.” The district court did not cite
a statutory or jurisprudential basis for this determination, nor are we aware of one. We
conclude that, in making this decision, the district court misapplied the law and therefore
abused its discretion by excluding the ESOP from Teresa’s gross income for a reason that
lacks legal support.
As noted above, gross income is “any form of periodic payment to an individual.”
Sinda, 949 N.W.2d at 176 (quotation omitted). And periodic means “marked by repeated
cycles[] or happening or appearing at regular intervals.” Haefele, 837 N.W.2d at 710
(quotations omitted). Rather than analyzing whether the ESOP was a liquid asset, the
district court should have made findings about whether the ESOP was a periodic payment
to Teresa, i.e., a payment marked by repeated cycles, or one happening or appearing at
regular intervals. See Sinda, 949 N.W.2d at 176; Haefele, 837 N.W.2d at 710. Without such
findings, we cannot otherwise review whether the district court properly excluded the
ESOP from its gross-income calculation.
Because the district court misapplied the law by neglecting to make findings of fact
about whether the ESOP was a form of periodic payment to Teresa, we reverse and remand
for the district court to determine whether the ESOP meets the legal definition of gross
13
income and, if necessary, to reconsider its resolution of Steven’s motion to modify spousal
maintenance in light of that determination. See Stevens v. Stevens, 501 N.W.2d 634, 637
(Minn. App. 1993) (noting that, “[e]ven where the record supports the [district] court’s
decision, the failure to make specific findings compels a remand”); see also Dougherty v.
Dougherty, 443 N.W.2d 193, 195 (Minn. App. 1989) (reversing the district court’s
modification of a maintenance award after the district court failed to make specific findings
about how gross income at the time of modification related to gross income at the time of
the original decree). On remand, the district court has the discretion to reopen the record
as may be necessary to address this issue.
II. The district court erred in denying Teresa’s motion for need -based attorney
fees but did not abuse its discretion by denying her motion for conduct-based
attorney fees.

In her cross- appeal, Teresa contends that the district court erred in denying her
motion for need-based attorney fees and abused its discretion by denying her motion for
conduct-based attorney fees. While we conclude that the district court’s reconsideration of
Teresa’s gross income on remand may require reconsideration of Teresa’s motion for need-
based attorney fees, we disagree that the district court abused its discretion by denying her
motion for conduct-based attorney fees.
A. The district court’s finding that Teresa has the means to pay for her
attorney fees is not supported by the evidence.

Teresa asserts that the district court abused its discretion in denying her motion for
need-based attorney fees. Because we are remanding the determination of Teresa’s gross
14
income to the district court, we also remand the issue of whether to award her need-based
attorney fees.
The district court “shall award attorney fees . . . in an amount necessary to enable a
party to carry on or contest the proceeding” if it finds:
(1) that 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) that the party from whom fees, costs, and disbursements are
sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are
awarded does not have the means to pay them.

Minn. Stat. § 518.14, subd. 1 (2022).
The district court found that Teresa has the means to pay for her own attorney fees
based on Teresa’s gross annual income of $89,624—which includes over $35,000 in annual
spousal maintenance—and a savings account that contained more than $36,000 as of May
2022. As explained above, Teresa’s spousal-maintenance award may decrease on
remand—based on the district court’s reconsideration of Steven’s motion to modify
spousal maintenance —if the district court determines that the ESOP meets the legal
definition of gross income. As a result, we cannot review whether the district court’s
finding that Teresa has the means to pay for her own attorney fees is supported by the
evidence. Because that finding was based in part upon the district court’s consideration of
the over $35,000 in spousal maintenance that Teresa receives each year, we reverse and
remand for the district court to reconsider Teresa’s motion for need -based attorney fees
along with Steven’s motion to modify spousal maintenance.
15
B. The district court did not abuse its discretion by determining that Steven
did not unreasonably delay the proceedings.

Teresa argues that Steven delayed the proceedings because his discovery requests
sought irrelevant information. We are unconvinced.
“A conduct-based attorney-fee award is reviewed for an abuse of discretion.” Sanvik
v. Sanvik, 850 N.W.2d 732, 737 (Minn. App. 2014). “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, 971
N.W.2d 257, 262 (Minn. 2022) (quotation omitted).
Under Minnesota Statutes section 518.14, subdivision 1, a district court may “in its
discretion,” award “additional fees, costs and disbursements against a party who
unreasonably contributes to the length or expense of the proceeding.” “Generally, conduct-
based attorney fees are to be based on the party’s behavior occurring during the litigation
process.” Baertsch v. Baertsch, 886 N.W.2d 235, 238 (Minn. App. 2016). The party
moving for conduct-based attorney fees has the burden of showing that the other party’s
conduct “unreasonably contributed to the length or expense of the proceeding.” Geske v.
Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001). “Fee awards under Minn. Stat.
§ 518.14 may be based on the impact a party’s behavior has had on the costs of the litigation
regardless of the relative financial resources of the parties.” Dabrowksi v. Dabrowski, 477
N.W.2d 761, 766 (Minn. App. 1991); see also Gales v. Gales, 553 N.W.2d 416, 423 (Minn.
1996) (citing Dabrowski for the proposition above).
16
In support of her argument, Teresa points to Steven’s request for Teresa’s mortgage
information as an example of irrelevant discovery. The mortgage information, however,
was relevant to the district court’s consideration of Steven’s motion to modify spousal
maintenance. Indeed, the district court specifically ordered Teresa to provide Steven
information about her mortgage.
Moreover, Teresa’s contention ignores the fact that her own actions in response to
Steven’s discovery requests affected the length of the proceedings. Teresa’s attorney
inadvertently omitted information about Teresa’s ESOP statements from Teresa’s
disclosures and did not provide that information to Steven until the morning of their
September 2022 motion hearing. In addition, because Teresa had not provided relevant
discovery to Steven, it was necessary for the district court to order that she produce her
most recent pay stub, information about her mortgage and life insurance, and any basis for
her expenses, such as bills. Based on our careful review of the record, the district court’s
determination that the duration and expense of the proceedings stemmed from the
complexity of discovery rather than the parties’ conduct is supported by the evidence.
We therefore conclude that the district court did not abuse its discretion by denying
Teresa’s motion for conduct-based attorney fees.
III. Steven’s motion to strike is moot.

Steven moves to strike three factual statements from Teresa’s appellate brief,
asserting that we should do so because the statements are not supported by the record. We
disagree.
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The record on appeal consists of “[t]he documents filed in the district court, the
exhibits, and the transcript of the proceedings.” Minn. R. Civ. App. P. 110.01. “An
appellate court may not base its decision on matters outside the record on appeal, and may
not consider matters not produced and received in evidence below.” Thiele v. Stich, 425
N.W.2d 580, 582-83 (Minn. 1988).
Because we have access to the record, we need not and do not rely on any extraneous
factual statements in Teresa’s brief. And because we do not rely on the challenged
statements, we deny Steven’s motion as moot. See Drewitz v. Motorwerks, Inc., 728
N.W.2d 231, 233 n.2 (Minn. 2007) (denying motion to strike as moot because the supreme
court did not rely on the material in question).
Affirmed in part, reversed in part, and remanded; motion denied.