In re the Marriage of: Kumiko Olivia Highley v. Christopher Alan Kvaal

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1660

In re the Marriage of: Kumiko Olivia Highley, petitioner,
Respondent,

vs.

Christopher Alan Kvaal,
Appellant.

Filed November 16, 2015
Affirmed in part, reversed in part, and remanded
Hooten, Judge

Stearns County District Court
File No. 73-FA-12-3483

Kay R. Snyder, Anthony J. Weigel, Jeddeloh and Snyder, P.A., St. Cloud, Minnesota (for
respondent)

Claudia M. Revermann, Revermann Law, P.A., Waite Park, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Worke, Judge.

UNPUBLISHED OPINION

HOOTEN, Judge

In this marital dissolution dispute, appellant father argues that the district court

erred by: (1) including an extraneous and prejudicial finding of fact in the amended

judgment and decree; (2) awarding respondent mother temporary spousal maintenance;
(3) not imputing income to mother for child support purposes; and (4) awarding mother

need-based attorney fees. We affirm in part, reverse in part, and remand.

FACTS

Appellant father Christopher Alan Kvaal and respondent mother Kumiko Olivia

Highley were married on October 7, 1999. During their marriage, the parties had three

children, all of whom were minors at the time of the dissolution. In April 2012, Highley

petitioned for legal separation. In June 2013, Kvaal answered and counter-petitioned for

dissolution of the parties’ marriage. The district court held a dissolution trial on

December 9–10, 2013. On February 26, 2014, the district court issued partial stipulated

findings of fact, conclusions of law, order for judgment, and judgment and decree, which

dissolved the parties’ marriage and distributed the marital property. On May 14, 2014,

the district court issued findings of fact, conclusions of law, order for judgment, and

judgment and decree, which determined custody, parenting time, spousal maintenance,

and child support and awarded Highley need-based attorney fees.

Kvaal moved to amend the judgment and decree, challenging the district court’s

inclusion of an allegedly prejudicial finding, the spousal maintenance and child support

determinations, and the attorney fee award. Highley moved to amend the judgment and

decree and for additional need-based attorney fees. The district court denied Highley’s

motion, but granted in part and denied in part Kvaal’s motion. On July 24, 2014, the

district court issued amended findings of fact, conclusions of law, order for judgment,

and judgment and decree. The only amendment, though, was the phrasing of a finding of

fact relating to Highley’s allegations of domestic abuse. This appeal by Kvaal followed.

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 DECISION

I.

Kvaal argues that the district court abused its discretion by including an “unfairly

prejudicial” finding in the amended judgment and decree related to the district court’s

custody determination. In her petition, Highley sought sole legal and physical custody of

the children. In his counter-petition, Kvaal sought joint legal and physical custody. In

support of her claim for sole legal and physical custody, Highley tried to establish that

Kvaal had committed domestic abuse during the marriage, as defined in Minn. Stat.

§ 518B.01, subd. 2(a) (2014) (defining domestic abuse, in pertinent part, as physical

harm, bodily injury, assault, or criminal sexual conduct). Highley testified that Kvaal

sexually assaulted her in November 2011. Kvaal disputed this allegation.

In the initial judgment and decree, the district court included these findings:

“There was an allegation by [Highley] that [Kvaal] ‘raped’ her with forced sex, and if

proven, [this] would have constituted domestic abuse under the statute. But this evidence

was inconclusive.” The district court found that Highley had not shown that domestic

abuse had occurred between the parties or between Kvaal and the children. In rejecting

Highley’s allegation of sexual assault, the district court awarded joint legal custody of the

children to the parties and awarded sole physical custody to Highley. Kvaal was awarded

significant parenting time with the children.

In his motion to amend the judgment and decree, Kvaal asked the district court to

strike the above-quoted language, arguing that the language was “inflammatory” and

“unfairly prejudicial and [did] not serve to offer any benefit or substance to the [c]ourt’s

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ultimate [c]onclusions and [o]rder.” Kvaal also argued that he “is a respected academic

and to have this be part of the public record is harassing and could serve to harm his and

his family’s economic well-being.” Kvaal apparently wanted the district court simply to

find that Highley had not shown that domestic abuse occurred in the marriage, without

any further explanation. Kvaal did not claim, however, that the district court

mischaracterized Highley’s allegation of sexual assault.

In its order granting in part and denying in part Kvaal’s motion, the district court

replaced the word “‘raped’” with “sexually assaulted,” but otherwise left the language the

same. The district court reasoned that “[t]he subject of rape was a central point advanced

by” Highley and took “a significant portion of the [c]ourt’s time and consideration at the

court trial.” The district court concluded that to remove the substance of Highley’s

allegation would “make the [judgment and decree] incomplete, and would affect the

[c]ourt’s overall analysis and conclusions stemming from that allegation.”

On appeal, Kvaal repeats the arguments he made below and correctly notes that

the amended judgment and decree is a publicly accessible document. See Minn. R. Pub.

Access to Recs. of Jud. Branch 4 (indicating that, with listed exceptions, “[a]ll case

records are accessible to the public”). We reject Kvaal’s contention that the district court

abused its discretion by retaining the disputed language. First, we agree with the district

court that it needed to indicate the nature of the parties’ dispute for its findings to be

reasonably complete. Second, Kvaal’s concern about the harm that could befall him as a

result of the language in the judgment and decree is speculative. While the district court

relayed Highley’s allegation, it specifically found that the evidence supporting the

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allegation was “inconclusive” and that Highley had not shown that domestic abuse

occurred, which lessen any prejudicial impact on Kvaal. Moreover, a finding of domestic

abuse creates a rebuttable presumption against an award of joint legal custody. Minn.

Stat. § 518.17, subd. 2(b) (2014). The district court, by awarding joint legal custody to

the parties, rejected Highley’s allegation of domestic abuse. And, the district court

further considered Highley’s unproven allegation of domestic abuse when it partially

denied her claim for need-based attorney fees. Because Highley’s allegation of domestic

abuse was a prominent issue in the trial that affected her claims for sole legal and

physical custody of the children, child support, and attorney fees, and the prejudice to

Kvaal was lessened by the district court’s rejection of the allegation, the district court did

not abuse its discretion by retaining the disputed language in the amended judgment and

decree.

II.

Kvaal next argues that the district court abused its discretion in awarding spousal

maintenance to Highley. We will not reverse a district court’s decision regarding spousal

maintenance unless the district court abused its discretion by improperly applying the law

or making clearly erroneous findings. Melius v. Melius, 765 N.W.2d 411, 414 (Minn.

App. 2009). “Findings of fact are clearly erroneous when they are manifestly contrary to

the weight of the evidence or not reasonably supported by the evidence as a whole.”

Kampf v. Kampf, 732 N.W.2d 630, 633 (Minn. App. 2007) (quotation omitted), review

denied (Minn. Aug. 21, 2007); see also Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn.

App. 2001) (“A finding is clearly erroneous if the reviewing court is left with the definite

5
and firm conviction that a mistake has been made.” (quotation omitted)). “[W]hether the

district court applied the correct legal standard is a question of law, which we review de

novo.” Thompson v. Thompson, 739 N.W.2d 424, 430 (Minn. App. 2007).

In a dissolution proceeding, the district court may award spousal maintenance to

either spouse if it finds that, in light of the standard of living established during the

marriage, the spouse seeking maintenance (a) “lacks sufficient property, including marital

property apportioned to the spouse, to provide for [the] reasonable needs of the spouse,”

or (b) “is unable to provide adequate self-support . . . through appropriate employment.”

Minn. Stat. § 518.552, subd. 1 (2014).

If the district court finds that a maintenance award is appropriate, it then

determines the amount and duration of the award by considering “all relevant factors,”

including: (a) the financial resources of the spouse seeking maintenance, including

marital property apportioned to that spouse and his or her ability to meet needs

independently; (b) the time necessary for the spouse seeking maintenance to become self-

supporting; (c) the marital standard of living; (d) the duration of the marriage and a

homemaker spouse’s length of absence from employment; (e) the loss of employment

benefits and opportunities foregone by the spouse seeking maintenance; (f) the age,

physical condition, and emotional condition of the spouse seeking maintenance; (g) the

ability of the spouse from whom maintenance is sought to meet his or her needs while

meeting the needs of the spouse requesting maintenance; and (h) the contribution of each

spouse in the acquisition of marital property and the contribution of a homemaker spouse

in furtherance of the other spouse’s employment or business. Id., subd. 2 (2014). “No

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single factor is dispositive.” Maiers v. Maiers, 775 N.W.2d 666, 668 (Minn. App. 2009).

“The purpose of a maintenance award is to allow the recipient and the obligor to have a

standard of living that approximates the marital standard of living, as closely as is

equitable under the circumstances.” Peterka v. Peterka, 675 N.W.2d 353, 358 (Minn.

App. 2004).

Here, the district court made findings as to each factor under Minn. Stat.

§ 518.552, subd. 2, and ordered Kvaal to pay temporary spousal maintenance for five

years in the amount of $2,500 per month. Kvaal challenges the maintenance award on

several grounds.

A. The district court’s finding that Highley cannot currently be self-
supporting is not clearly erroneous.

Kvaal argues that the district court clearly erred by finding that Highley cannot

currently be self-supporting. The district court made several findings as to Highley’s

inability to be self-supporting: (1) in addition to caring for the children, she had been a

full-time student since 2010 and was scheduled to complete her bachelor’s degree in

biology in the spring of 2014; (2) with only a bachelor’s degree in her field, she likely

would not be able to secure employment providing sufficient income to support herself

and the children while continuing to reside in the St. Cloud area; (3) she presently had

little or no monthly earned income and few liquid assets from the property distribution;

(4) she intended to continue her education by pursuing a master’s degree or doctoral

decree; (5) she testified that, as part of her education, she would need to seek an unpaid

internship; and (6) five years was “a reasonable amount of time [for Highley] to finish

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her education and become self-supporting.” The district court found that, based on the

section 518.552 factors, Highley had “demonstrated her need for spousal maintenance for

a fixed period of time to allow [her] to complete her education and become self-

sufficient.”

Kvaal characterizes Highley as a “lifetime student” and argues that she provided

no evidence that she cannot earn an income or that she has undertaken “a reasonable job

search.” He argues that, because Highley holds two bachelor’s degrees and a pilot

license, she can work. These arguments are unpersuasive. Highley testified that she

holds a private pilot license, not a commercial pilot license, and therefore she cannot be

hired for compensation. Highley received a bachelor’s degree in graphic design in 1999,

but was not able to pursue a career in graphic design once her children were born, making

her current employability in this field limited. And, while Highley was expected to

obtain a bachelor’s degree in biology in the spring of 2014, she explained at trial that she

would not be able to receive a competitive salary in the St. Cloud area with only a

bachelor’s degree in that field. The district court found this testimony credible. See

Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer

to the district court’s credibility determinations). We conclude that the district court did

not clearly err in finding that Highley was currently unable to be self-supporting.

B. There is no reversible error in the district court’s calculation of the
parties’ monthly expenses.

Kvaal argues that the district court clearly erred in its calculation of the parties’

reasonable monthly living expenses. In determining spousal maintenance, the district

8
court must consider “the standard of living established during the marriage.” Minn. Stat.

§ 518.552, subd. 2. The district court must calculate the parties’ reasonable monthly

living expenses based on the marital standard of living. Lee v. Lee, 775 N.W.2d 631, 642

(Minn. 2009). At trial, both parties submitted a proposal of their respective monthly

expenses. The district court found that the marital standard of living was “modest,”

noting that both parties had prioritized the children’s extracurricular activities in their

proposals. The district court found that both proposals were “somewhat inflated,”

making adjustments to each. Kvaal contends that the district court made several

erroneous adjustments and non-adjustments.

First, Kvaal challenges the district court’s finding that $921.36 was a reasonable

amount for Highley’s monthly grocery and household expenses. This was the amount

that Highley submitted at trial. Kvaal testified that he handled the parties’ finances

during the marriage and that a more realistic amount for Highley’s monthly grocery and

household expenses was $450. In the amended judgment and decree, the district court

adopted Highley’s figure of $921.36. The district court explained that, when determining

Highley’s reasonable monthly expenses, it compared Highley’s pretrial financial

disclosure statement with the financial summary she provided at trial and made

adjustments when there was a discrepancy, such as a decrease in her car maintenance

expense. Highley’s estimate of grocery and household expenses was consistent in the

two documents, and the district court implicitly found that $921.36 was a reasonable

monthly amount. The district court’s finding is not clearly erroneous.

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 Second, Kvaal challenges the district court’s adjustments to both parties’

charitable contribution expense. In his motion to amend the judgment and decree, Kvaal

argued that the district court should have allowed $25 per month for both his and

Highley’s charitable contributions. The district court disallowed this expense entirely,

reasoning that because charitable contributions are tax deductible, it “would be

inappropriate to include [them] in consideration of spousal maintenance.” Kvaal

correctly points out that the parties’ income tax returns, which are part of the record on

appeal, reflect that they historically deducted the amounts that they contributed to

charities. We conclude that Kvaal has failed to show that the district court’s

disallowance of this expense was clearly erroneous. However, even if there was error,

remand would be unnecessary because the effect of any error would be de minimis.

Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (declining to remand for

de minimis error). The $25 per month charitable contribution expense amounts to less

than one percent of each party’s reasonable monthly expenses.

Third, Kvaal argues that the district court should not have adjusted the parties’

expenses for gifts, telephone, and entertainment because they represent “actual expenses

that are not projected or estimated.” As for the gifts expense, Highley proposed $50 per

month in her budget, but Kvaal did not include gifts in his budget. The district court

found that it would be “inappropriate” to include gifts “in consideration of spousal

maintenance” and accordingly disallowed gifts from Highley’s monthly budget. Because

Kvaal prevailed on this issue before the district court, he lacks standing to appeal it. See

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Twin Cities Metro. Pub. Transit Area v. Holter, 311 Minn. 423, 425, 249 N.W.2d 458,

460 (1977) (“A party who is not aggrieved by a judgment may not appeal from it.”).

As for the telephone expense, the district court reduced Kvaal’s monthly telephone

budget from $200 to $100 because it found that $200 per month for a single user was

“inflated.” Kvaal did not object to this reduction in his posttrial motion, and therefore his

argument is not properly before this court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.

1988).

As for the parties’ entertainment expense, Highley proposed $25 per month, while

Kvaal proposed $250 per month. The district court reduced Kvaal’s monthly

entertainment budget to $25, finding that this reduction was equitable because it matched

Highley’s budget. Kvaal offered no evidence at trial that $250 per month was his actual

entertainment expense, and therefore we conclude that the district court’s finding as to

Kvaal’s entertainment expense is not clearly erroneous.

Finally, Kvaal claims that the district court clearly erred by disallowing his

monthly savings and retirement expenses. Kvaal proposed $368 per month for

“Savings/Retirement.” The district court found that Kvaal’s contributions to savings and

retirement were “commendable,” but concluded that it would be “inappropriate” to

include these contributions “in consideration of spousal maintenance,” disallowing these

expenses entirely.

The district court has discretion to include savings and retirement expenses in a

party’s reasonable monthly expenses if such expenses “were an integral part of [the

parties’] standard of living during the marriage.” Kampf, 732 N.W.2d at 634. In Kampf,

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the district court found that the obligee’s reasonable monthly expenses included $693 for

savings and retirement. Id. at 632. This court concluded that the district court did not err

by including these expenses because the record showed that the parties had accumulated

savings and retirement accounts in excess of $340,000 during the marriage, and the

record supported the district court’s figure of $693 per month. Id. at 634.

Kvaal did not present any evidence at trial that savings and retirement expenses

were an integral part of the parties’ standard of living during the marriage. The parties

did not testify as to the details of their savings and retirement accounts, and the record

does not indicate the value of these accounts either during the marriage or at the time of

dissolution. We therefore conclude that, on this record, the district court did not clearly

err by disallowing monthly savings and retirement expenses claimed in Kvaal’s budget.

C. The spousal maintenance award appears to exceed Highley’s
reasonable monthly expenses and is inconsistent with Kvaal’s ability to
meet his own needs.

Kvaal argues that the district court abused its discretion by awarding child support

($1,559) and spousal maintenance ($2,500) to Highley in an amount ($4,059) that

exceeds Highley’s reasonable monthly expenses as found by the district court

($3,372.57). He asserts that Highley’s spousal maintenance award exceeds her monthly

expenses by $686.43. A district court’s spousal maintenance award should be based on

meeting the obligee’s needs and should not exceed the amount necessary to that end. See

Lee, 775 N.W.2d at 642 (remanding for reconsideration of maintenance award that

exceeded obligee’s needs).

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 The district court did not address the tax consequences of the maintenance award

in the amended judgment and decree, finding that $2,500 was “appropriate in light of all

the evidence.” Given the district court’s lack of findings to account for the $686.43

overage, the district court appears to have awarded Highley more than she reasonably

needs to support herself. This case is similar to Lee, where the district court found that

the obligee’s reasonable monthly expenses were $1,950; the district court found that the

obligee received monthly income of $1,674.14; it awarded maintenance of $700 per

month; and the supreme court remanded for the district court to make appropriate

findings to support its award, given the $424.14 overage. Id. Because we have no way

of knowing whether the district court awarded Highley $686.43 more than her reasonable

monthly expenses in order to account for tax consequences, we remand for additional

findings on this issue.

Kvaal also argues that the district court erred by (1) calculating his income based

on the parties’ recent tax returns and (2) using gross income rather than net income to

calculate his available income for spousal maintenance purposes. A spousal maintenance

determination must balance the financial needs of the obligee and the obligee’s ability to

meet those needs against the obligor’s ability to pay. Erlandson v. Erlandson, 318

N.W.2d 36, 39–40 (Minn. 1982); see also Minn. Stat. § 518.552, subd. 2.

In his submissions, Kvaal represented that his annual base salary was $71,131, but

the parties’ tax returns indicated a much higher gross income. Kvaal testified that, in

addition to his base salary, he had earned additional income by teaching summer classes,

receiving federal grants, giving lectures, and reviewing textbooks. But, he testified that

13
he would be earning less income going forward because enrollment had gone down at the

university where he teaches and he had “turned down opportunities for additional salary

in the past couple of years” so that he could spend more time with the children.

The district court was not persuaded by Kvaal’s testimony of a decrease in income

and determined Kvaal’s income based on the parties’ tax returns from 2009 to 2012. The

district court found that Kvaal’s average annual income was $118,359.75, which

amounted to a gross monthly income of $9,863.31. The district court explained that it

based its findings as to Kvaal’s income “on the evidence and testimony provided at trial,

which overrides [Kvaal’s] speculation” as to his anticipated decreased income. Kvaal

argues that the district court erred by calculating his income based on the parties’ recent

tax returns. There is no merit to this contention. The district court was required to

calculate Kvaal’s current income, not his future anticipated income. Carrick v. Carrick,

560 N.W.2d 407, 412 (Minn. App. 1997) (holding district court erred in relying on

obligor’s anticipated decreased income and district court should have calculated obligor’s

income at time of trial). If Kvaal’s income does in fact decrease, he can move for

modification of spousal maintenance, as the district court pointed out. Minn. Stat.

§ 518A.39, subd. 2 (2014) (providing that terms of maintenance order may be modified

upon a showing of obligor’s substantially decreased income). The district court did not

err by declining to speculate as to Kvaal’s future income.

Kvaal’s argument that the district court erred by calculating his income available

for spousal maintenance purposes based on his gross, rather than net, monthly income has

merit. The district court found that Kvaal’s reasonable monthly expenses were $3,100. It

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then subtracted this amount from Kvaal’s gross monthly income of $9,863.31, finding

that Kvaal’s “available income” for purposes of calculating child support and spousal

maintenance was $6,763.31. The district court then awarded Highley $1,559 per month

in child support and $2,500 per month in spousal support. Kvaal points out that the

district court failed to account for the income tax liability on his gross income when

calculating spousal maintenance. He presents his own tax calculations and asserts that,

based on his net monthly income, the spousal maintenance award results in a monthly

cash shortfall for him.

The district court erred as a matter of law by calculating spousal maintenance

based on Kvaal’s gross monthly income and failing to take into account his income tax

liability. Kostelnik v. Kostelnik, 367 N.W.2d 665, 670 (Minn. App. 1985) (“In order to

determine ability to pay, the [district] court must make a determination of the payor

spouse’s net or take-home pay.”), review denied (Minn. July 26, 1985). Taking into

account the income tax liability could significantly affect the amount of Kvaal’s income

available for maintenance purposes. Kvaal’s 2013 paystubs, which list tax and other

deductions from his gross income, were received into evidence at trial. But, because the

2013 paystubs detail the income tax liability only on Kvaal’s base pay of $71,131, the

district court may need to reopen the record to receive evidence as to the income tax

liability on Kvaal’s imputed gross income of $118,359.75. We reverse the district court’s

spousal maintenance award and remand for the district court to recalculate the amount of

the award based on Kvaal’s net monthly income.

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 III.

Kvaal argues that the district court abused its discretion by not imputing income to

Highley when computing Kvaal’s child support obligation. A district court order

regarding child support will be reversed only if the district court abused its broad

discretion “by resolving the matter in a manner that is against logic and the facts on the

record.” Bauerly v. Bauerly, 765 N.W.2d 108, 110 (Minn. App. 2009). We review

questions of law relating to support de novo and findings of fact for clear error.

Ludwigson v. Ludwigson, 642 N.W.2d 441, 446 (Minn. App. 2002); Guyer v. Guyer, 587

N.W.2d 856, 858 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999). “Whether a

parent is voluntarily unemployed is a finding of fact, which we review for clear error.”

Welsh v. Welsh, 775 N.W.2d 364, 370 (Minn. App. 2009).

Generally, “[i]f a parent is voluntarily unemployed, underemployed, or employed

on a less than full-time basis, or there is no direct evidence of any income, child support

must be calculated based on a determination of potential income.” Minn. Stat.

§ 518A.32, subd. 1 (2014). But, a parent is not considered voluntarily unemployed,

underemployed, or employed on a less than full-time basis if his or her “unemployment,

underemployment, or employment on a less than full-time basis is temporary and will

ultimately lead to an increase in income,” or “represents a bona fide career change that

outweighs the adverse effect of that parent’s diminished income on the child.” Id., subd.

3(1)–(2) (2014).

Kvaal repeats his argument that Highley is currently able to earn income because

she holds two bachelor’s degrees and a private pilot’s license. The district court found

16
that, even though Highley was currently unemployed and not seeking employment, “her

training and education will ultimately lead to an increase of her income and also

represent[] a bona fide career change that outweighs the adverse short-term effects of her

decrease in income.” Accordingly, the district court did not impute income to Highley

and ordered Kvaal to pay child support in the amount of $1,559 per month. We conclude

that the district court did not abuse its discretion by not imputing income to Highley

because its finding that she is not voluntarily unemployed, underemployed, or employed

on a less than full-time basis is supported by logic and the facts in the record and

therefore is not clearly erroneous.

IV.

Kvaal argues that the district court abused its discretion by awarding Highley

$7,500 in need-based attorney fees. In marital dissolution proceedings,

the [district] court shall award attorney fees, costs, and
disbursements in an amount necessary to enable a party to
carry on or contest the proceeding, provided 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 (2014). The supreme court has stated that appellate courts

review an award of need-based attorney fees for an abuse of discretion. Gully v. Gully,

599 N.W.2d 814, 825 (Minn. 1999). But see Geske v. Marcolina, 624 N.W.2d 813, 816

17
n.1 (Minn. App. 2001) (noting a tension in supreme court caselaw regarding whether an

attorney fee award under Minn. Stat. § 518.14, subd. 1, is mandatory or discretionary).

At trial, Highley requested need-based attorney fees in the amount of $15,000. In

the amended judgment and decree, the district court addressed the three statutory factors.

First, the district court found that Highley

generally made a good faith assertion of her rights in this
proceeding, but also contributed to the length and expense of
the proceeding by offering a substantial amount of testimony,
evidence, and arguments in an attempt to prove that [Kvaal]
committed domestic abuse against [Highley] . . . ,
notwithstanding the finding[] of the [c]ustody [e]valuator that
. . . “no documented abuse” existed.

(Emphasis added.) Second, the district court found that Kvaal had the means to pay a

portion of Highley’s attorney fees, although noting that he “incurred significant expense

while asserting a good faith defense at trial against [Highley’s] allegations of domestic

abuse.” Finally, the district court found that Highley was unemployed and needed

spousal maintenance to meet her necessary expenses. The district court then awarded

Highley half of her requested attorney fees, $7,500, to be paid in monthly installments of

$1,500.

Kvaal contends that the district court abused its discretion because he incurred

“substantial attorney fees” while defending against the domestic abuse allegations, and he

“does not have sufficient ongoing funds” to pay the attorney fees. We conclude that the

district court did not clearly err in weighing the prolonged expense of the litigation as a

result of Highley’s domestic abuse allegations with the fact that the attorney fees were

“generally” necessary to the good faith assertion of her rights. And, we conclude that the

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district court did not clearly err in finding that Highley lacks the means to pay the fees.

But, as to Kvaal’s ability to pay, we have already determined that the district court will

need to recalculate spousal maintenance based on Kvaal’s actual ability to pay

maintenance, and therefore we conclude that the district court’s finding that Kvaal has the

ability to pay $7,500 in need-based attorney fees is not supported by this record. On

remand, the district court must re-determine whether Kvaal has the ability to pay

Highley’s attorney fees and, if so, in what amount per month.

In summary, we affirm the district court’s decision to retain the substance of

Highley’s domestic abuse related allegations in the amended judgment and decree, and

we affirm the district court’s child support determination. As to spousal maintenance, we

generally find that the district court’s determination that Highley is entitled to five years

of temporary spousal maintenance is well supported on this record. We affirm the district

court’s finding that Highley is currently unable to be self-supporting, as well as the

district court’s adjustments to the parties’ reasonable monthly expenses. But, we reverse

the amount of the district court’s spousal maintenance award because (1) with no

explanation in the amended judgment and decree, the amount awarded appears to be

greater than Highley’s reasonable needs, and (2) the district court erred as a matter of law

by calculating Kvaal’s ability to pay based on his gross rather than net income. If the

new maintenance award, in combination with the child support award, is greater than

Highley’s reasonable monthly expenses, the district court must include findings to

support this determination. In light of the district court’s error in overstating Kvaal’s

ability to pay maintenance, we reverse the district court’s award of need-based attorney

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fees solely as to the amount of the fees awarded. We remand for the district court to

recalculate the amount of spousal maintenance and the amount of the attorney fee award

based on Kvaal’s net income and actual ability to pay. The district court may reopen the

record to the extent that is necessary for a full consideration of these matters.

Affirmed in part, reversed in part, and remanded.

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