                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2012).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A13-2286

                                   In re the Marriage of:
                              Terrence Reily Peters, petitioner,
                                        Respondent,

                                             vs.

                                    Deanna Lynn Peters,
                                        Appellant.

                                 Filed September 8, 2014
                                         Affirmed
                                     Bjorkman, Judge


                                Scott County District Court
                                 File No. 70-2004-26188

Mark Anderson, Anderson Law Office, Prior Lake, Minnesota (for respondent)

John T. Burns, Jr., Burns Law Office, Burnsville, Minnesota (for appellant)

         Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Smith,

Judge.

                          UNPUBLISHED OPINION

BJORKMAN, Judge

         Appellant mother challenges the district court’s denial of her motions related to

various parenting-time and medical-support issues. Appellant argues that the district

court abused its discretion by (1) denying her requests to modify the parties’ medical-
support obligations, (2) declining to order the parties to commence co-parenting therapy,

and (3) denying her attorney-fees request. We affirm.

                                          FACTS

       Appellant Deanna Peters (mother) and respondent Terrence Peters (father) are the

parents of Z.P., born February 2002. The parties’ marriage was dissolved on February 2,

2007, after a 12-day trial. Both parties sought custody of Z.P., but the district court found

that mother had “deliberately interfered” with father’s parenting time and would “most

likely” continue to do so, and awarded father sole physical and legal custody, with the

parties “shar[ing] parenting time as evenly as possible.” The dissolution judgment also

required mother to pay father $500 in monthly child support and to provide health-

insurance coverage for Z.P. but required the parties to pay equally toward Z.P.’s

unreimbursed medical and dental expenses. Based on father’s increased income, child

support was modified in 2009; father now pays $508 in monthly child support to mother.

But the parties’ other financial obligations have remained unchanged.

       In late 2011, mother moved for custody modification, requesting joint legal and

physical custody. The parties appointed Anne Tuttle as parenting consultant. They

agreed that Tuttle would address mother’s pending motion and all future issues of

parenting time, and facilitate communication between the parties and with outside

sources (teachers, therapists, etc.).

       In a June 2012 decision, Tuttle rejected the modification request, finding that

mother “appears to have continued her campaign to have sole authority over [Z.P.] that

started before entry of the Judgment and Decree” and “does so by micro-managing and


                                             2
undermining Father’s authority to make decisions.” Tuttle also found that Z.P. “is being

placed in the middle of a continuing battle between the parties in regard to their own

determination as to what is best for [him],” which is “very detrimental” to him. She

directed father to enroll Z.P. in therapy.

       Father selected therapist Joe Noble, who is not covered by mother’s insurance

network. Mother objected to the cost of using an out-of-network provider but agreed to

have Z.P. begin therapy with Noble. Mother initially paid half of the therapy expenses

but stopped contributing after six appointments, asserting that she would only pay for an

in-network provider. An outstanding balance of $963.75 accrued by early 2013, and

Z.P.’s sessions with Noble ceased.

       Around the same time, mother requested co-parenting therapy, but father resisted.

When Noble suggested that co-parenting therapy might be beneficial and recommended a

therapist in his group, father agreed to participate. But mother refused to work with the

recommended therapist, claiming a conflict of interest. Tuttle asked mother to suggest a

therapist within her insurance network. Mother agreed but failed to do so.

       The parties presented the therapy disputes and several other parenting-time issues

to Tuttle in June 2013. Tuttle found that “[i]t continues to be of uppermost importance

that [Z.P.] continues in therapy with Joe Noble as he must be able to have a place to deal

with the conflict between his parents in a healthy manner,” and decided that “[Z.P.] shall

continue to attend therapy with Joe Noble as he recommends.” She also decided:

                    No modification to the parenting time schedule will be
              considered until such time as the parties are able to cooperate
              to have [Z.P.] regularly attend therapy with Mr. Noble[] and


                                             3
              that they are able to cooperate and engage in co-parenting
              therapy. If the parties cannot agree on a therapist, names
              shall be submitted and a decision made as to who will provide
              this service.

Tuttle declined to address the therapy costs because her appointment order does not

authorize her to decide financial matters. But she noted her concern that the financial

disputes disrupted Z.P.’s therapy and observed that she has “no reason to believe that

either party has a lack of income in order to provide therapy for [Z.P.].”

       Mother moved the district court for relief from Tuttle’s decisions and to modify

the medical-support order. In relevant part, mother asked the district court to (1) order

the parties to begin co-parenting therapy with a therapist selected by the court from

mother’s insurance network and share equally any uncovered expenses; (2) order father

to pay Noble’s outstanding balance; (3) order the parties to find an in-network therapist

for Z.P. and thereafter share any unreimbursed costs according to their respective shares

of parental income for determining child support (PICS), or order father to be solely

responsible for the cost of continued therapy with Noble; and (4) modify the parties’

obligations for uncovered medical and dental expenses to comport with their respective

PICS. Mother also sought need-based and conduct-based attorney fees and costs.

       At the hearing on mother’s motions, the district court orally directed father to pay

the outstanding balance owed to Noble but indicated that everything else “stays the

same.” In its written order, the district court did not make specific factual findings but

ordered the parties to “follow the recommendations of the Parenting Consultant.” Mother




                                             4
moved for amended findings and sought additional attorney fees, which the district court

denied. Mother appeals.

                                     DECISION

I.     The district court did not abuse its discretion by declining to modify the
       medical-support order.

       Mother moved to modify the existing medical-support order to comport with the

parties’ respective PICS (68% father, 32% mother), as determined in 2009. She also

sought a specific modification based on a purported agreement between the parties as to

the cost of Z.P.’s therapy with Noble. She now challenges the district court’s denial of

both requests.

       The district court has broad discretion to determine whether to modify an existing

support obligation. Haefele v. Haefele, 837 N.W.2d 703, 708 (Minn. 2013). “A district

court abuses its discretion when it resolves a matter in a manner that is against logic and

the facts on record.”     Youker v. Youker, 661 N.W.2d 266, 269 (Minn. App. 2003)

(quotation omitted), review denied (Minn. Aug. 5, 2003). A district court may modify a

support order, including a medical-support order, upon a showing that a substantial

change in circumstances makes the original award unreasonable and unfair. Minn. Stat.

§ 518A.39, subd. 2(a) (2012); see also Minn. Stat. § 518A.41, subd. 5(a) (2012) (stating

that “medical support is considered child support”). “The moving party has the burden of

proof in support-modification proceedings.” Bormann v. Bormann, 644 N.W.2d 478, 481

(Minn. App. 2002) (citing Johnson v. Johnson, 304 Minn. 583, 584, 232 N.W.2d 204,

205 (1975)).



                                            5
       Modification of the medical-support order

       The medical-support statute requires a district court to “order that the cost of

health care coverage and all unreimbursed and uninsured medical expenses under the

health plan be divided between the obligor and obligee based on their proportionate share

of the parties’ combined monthly PICS.” Minn. Stat. § 518.A.41, subd. 5(a) (2012).

While this requirement did not apply to the parties’ dissolution proceeding, which was

commenced in December 2004, it does apply to mother’s modification motion. See 2005

Minn. Laws, ch. 164, § 22, at 1908; 2006 Minn. Laws, ch. 280, § 44, at 1145 (providing

that 2005 “provisions used to calculate parties’ support obligations apply to actions or

motions filed after January 1, 2007”). But the fact that the law governing medical

support has changed does not itself require modification of an existing order. See Minn.

Stat. § 518A.39, subd. 2(i) (2012) (stating that generally, “an enactment, amendment, or

repeal of law does not constitute a substantial change in the circumstances for purposes of

modifying a child support order”).      Mother must still demonstrate that the parties’

circumstances have changed substantially and that the order to share the costs equally is

unreasonable and unfair in light of the new circumstances.

       To satisfy both of these burdens, mother pointed only to the modification of basic

child support in 2009.     At that time, mother established that the parties’ financial

circumstances had changed from roughly equal incomes at the time of the dissolution to

father earning nearly twice as much as mother and that it was unreasonable and unfair for

her to continue to pay father child support under those circumstances. But she did not

argue that this change rendered any aspect of the medical-support order unreasonable and


                                            6
unfair. Even in the current proceeding, mother has not proffered any evidence that she is

unable to pay half of Z.P.’s unreimbursed medical expenses or made any other showing

or argument that the existing order is unreasonable and unfair. She asserts only that

“there is no reason not to” modify the medical-support order.

       The district court found this showing insufficient. In oral findings at both the

original motion hearing and the hearing on mother’s motion for amended findings, the

district court emphasized that the existing medical-support order was established after a

12-day trial. See Minn. R. Civ. P. 52.01 (stating that findings of fact may be made orally

and recorded in open court); Rigwald v. Rigwald, 423 N.W.2d 701, 703 (Minn. App.

1988) (applying this aspect of rule 52.01 in a family law appeal). And consistent with the

district court’s and Tuttle’s previous findings about mother’s pattern of interfering with

father’s parental authority, the district court succinctly but clearly indicated that it is in

Z.P.’s best interests for mother to pay her half of the therapy expenses rather than

spending money on attorney fees to dispute those expenses. While these findings do not

expressly address the unreasonable-and-unfair standard, they plainly reflect the district

court’s implicit determination that the existing medical-support order is both reasonable

and fair. We agree with mother that it may have been “the better practice” for the district

court to prepare written findings expressly addressing the statutory criteria, but it was not

required to do so, particularly in light of mother’s failure to make any showing of

unreasonableness and unfairness. See Johnson, 304 Minn. at 584, 232 N.W.2d at 205-06

(citing Minn. R. Civ. P. 52.01); see also Thielbar v. Defiel, 378 N.W.2d 643, 645 (Minn.

App. 1985) (affirming denial of child-support modification, despite lack of specific


                                              7
factual findings, because moving party “did not produce evidence that the [change in

circumstances] make the original support award unfair and unreasonable”). On this

record, we conclude the district court did not abuse its discretion by denying mother’s

motion to modify the medical-support order.

       Modification of the parties’ obligations for Z.P.’s therapy expenses

       Mother’s second challenge to the existing medical-support order relates solely to

unreimbursed expenses associated with Z.P.’s therapy with Noble. Mother seeks to carve

these expenses out based on the parties’ purported agreement to handle them differently.

We are not persuaded. Medical care includes mental-health care. Accordingly, the

existing medical-support order controls, unless and until a substantial change in

circumstances renders the order unreasonable and unfair. As we discussed above, mother

made no such showing.

       Moreover, all forms of child support relate to the “nonbargainable interests of

children.” Maxson v. Derence, 384 N.W.2d 583, 585 (Minn. App. 1986). Even an

agreement between the parties cannot trump the court’s responsibility for the child’s best

interests. See Tammen v. Tammen, 289 Minn. 28, 30, 182 N.W.2d 840, 842 (1970). That

responsibility is at the core of the district court’s decision here.

       In its oral findings, the district court accepted Tuttle’s determination that Z.P.’s

need for therapy flows from the “high conflict” between the parties, and that it is in Z.P.’s

best interests to continue therapy with Noble. The district court found that mother agreed

to send Z.P. to therapy with Noble, then refused to pay “her portion” solely “for [her]

own selfish reasons,” because Noble is not covered by her insurance network. The


                                               8
district court also roundly criticized mother’s decision to expend funds on attorney fees to

dispute responsibility for Z.P.’s therapy expenses, rather than “thinking about [her] son

first” and simply paying her half of those expenses. On this record, we discern no error

in the district court’s conclusion that it continues to be reasonable and fair, and in Z.P.’s

best interests, that the parties share equally the cost of Z.P.’s therapy with Noble.

II.    The district court did not abuse its discretion by declining to order the parties
       to commence co-parenting therapy.

       Mother also argues that the district court abused its discretion by denying her

request to order the co-parenting therapy that Tuttle made a prerequisite to any parenting-

time changes. Whether to order the parties to participate in co-parenting therapy, like any

parenting-time decision, turned on Z.P.’s best interests. See Minn. Stat. § 518.175, subd.

1(a) (2012) (establishing the child’s best interests as the goal in parenting-time

decisions). A district court has broad discretion over parenting-time issues. See Dahl v.

Dahl, 765 N.W.2d 118, 123 (Minn. App. 2009).

       In oral findings on the record, the district court credited Tuttle’s determination that

it would not be constructive to order the parties to begin co-parenting therapy or to select

a therapist for them, stating “if [mother] doesn’t want to go to coparenting therapy, she

doesn’t have to go.” It was well within the district court’s discretion to decline to

intercede in a parenting-time dispute that it believes Tuttle is addressing competently.

III.   The district court did not abuse its discretion by denying mother’s request for
       attorney fees.

       We review for abuse of discretion the denial of a motion for attorney fees in a

family-law proceeding. See Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999) (need-


                                              9
based fees); Szarzynski v. Szarzynski, 732 N.W.2d 285, 295 (Minn. App. 2007) (conduct-

based fees). A district court abuses its discretion when it misapplies the law or makes a

decision contrary to the facts in the record. In re Adoption of T.A.M., 791 N.W.2d 573,

578 (Minn. App. 2010).

       Conduct-based fees

       A district court may grant conduct-based attorney fees “against a party who

unreasonably contributes to the length or expense of the proceeding.”           Minn. Stat.

§ 518.14, subd. 1 (2012).

       Mother asserts that she is entitled to attorney fees in excess of $4,300 that she

incurred trying to enforce father’s promise to pay the costs of Z.P.’s therapy with Noble.

We disagree. First, the therapy issue was only one of many presented to the district

court, so the conduct in question would not justify an award of all of mother’s attorney

fees. Second, even if the district court had accepted mother’s argument that father’s

conduct necessitated a motion, it was conduct that led up to the litigation process; it was

not part of the litigation process. “Because conduct-based attorney fees under Minn. Stat.

§ 518.14, subd. 1, are to be based on behavior occurring during the litigation process,

behavior occurring outside the litigation process is not a basis for a conduct-based fee

award under that provision.” Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App.

2001). Because mother neither alleged nor demonstrated that father engaged in conduct

that contributed to the length or expense of the proceeding, the district court did not abuse

its discretion by denying conduct-based fees.




                                             10
          Need-based fees

          A district court “shall” award need-based attorney fees if it finds that (1) the fees

are necessary for a good-faith assertion of the recipient’s rights and “will not contribute

unnecessarily to the length or expense of the proceeding,” (2) the payor has the ability to

pay the fees, and (3) the recipient lacks the ability to pay the fees. Minn. Stat. § 518.14,

subd. 1 (2012). The party seeking fees must produce evidence that she lacks the ability to

pay them herself. Moravick v. Moravick, 461 N.W.2d 408, 409 (Minn. App. 1990); see

also In re Marriage of Sammons, 642 N.W.2d 450, 458 (Minn. App. 2002) (refusing to

award attorney fees because the party failed to establish “the existence of those elements

required by section 518.14 that would entitle her to need-based attorneys’ fees”).

          The district court’s oral findings characterize mother’s motions as a misuse of

funds that could otherwise be used for Z.P. and little more than a means of interfering

with father’s ability to exercise his authority as Z.P.’s sole legal custodian. This goes

beyond a mere determination that mother’s claims fail on the merits. See Phillips v.

LaPlante, 823 N.W.2d 903, 907 (Minn. App. 2012) (“An award of need-based attorney

fees does not depend in any way on whether the party seeking fees is the prevailing

party.”), review denied (Minn. Aug. 6, 2013). The record supports the district court’s

determination that mother’s motions were not necessary for a good-faith assertion of her

rights.

          Moreover, the record does not establish that mother lacks the ability to pay the

fees. Mother asserted in her affidavit that she “had to borrow money” from her mother to

bring the motions, but she did not otherwise substantiate that claim with any evidence of


                                               11
her current expenses.1 Because mother failed to demonstrate that she lacks the ability to

pay her attorney fees, the district court did not abuse its discretion by denying her request

for need-based fees.

         Affirmed.




1
    The most recent evidence of mother’s expenses is from 2009.

                                             12
