text:
    Cindy L. ARNEVIK, Appellant, v. UNIVERSITY OF MINNESOTA BOARD OF REGENTS and University of Minnesota, Appellees.
    No. 00-0682.
    Supreme Court of Iowa.
    April 3, 2002.

      Randall E. Nielsen of Pappajohn, Shri-ver, Eide & Nicholas, P.C., Mason City, for appellant.
    Rustin T. Davenport of De Vries, Price & Davenport, Mason City, for appellees.
   STREIT, Justice.

An employee of the University of Minnesota tries to take a second bite of the apple after her first indemnification action again the University failed. Cindy Arnevik was involved in a car accident causing serious injury to the driver of another car. After the driver recovered damages for her injuries from Arnevik, Arnevik sued her employer for indemnification based on the principle of respondeat superior. The district court dismissed this action and Arne-vik did not appeal. She now pursues an alternate theory of indemnification based on contract. Because we find her present claim is barred by the theory of claim preclusion, we affirm.

I. Background and Facts

Cindy Arnevik, a resident of Iowa, was employed by the University of Minnesota as an extension education employee since 1988. On October 14, 1994, Arnevik was traveling to work in her car from her home in Iowa to deliver plants to test plots near Wells, Minnesota. As part of Arnevik’s employment, she was required to travel throughout Minnesota and sometimes into Iowa for field visits and meetings. Arne-vik did not drive directly to Wells, but instead stopped in Buffalo Center, Iowa, to meet her husband for breakfast. She then made her way to Wells. As she was driving, she became distracted by plant materials tipping over in the car, drove her car across the centerline, and collided nearly head-on with a car driven by Melissa Johnson.

In June 1996, Johnson sued Arnevik seeking compensation for her injuries. Arnevik informed her district director, Larry Tande, about the accident and the lawsuit. Tande informed certain individuals at the University of Minnesota. Arne-vik filed a cross-petition in the Johnson lawsuit against the University. In this action, Arnevik claimed the University was legally responsible to defend and indemnify Arnevik for her negligence while she was acting within the scope of her employment. The University filed a motion for summary judgment which the district court granted on March 17, 1997. The court stated it could find no authority to allow an employee to bring an indemnification suit against the employer for damage to a third party caused by the employee’s negligence. Therefore, the court ruled Ar-nevik failed to state a claim upon which relief could be granted. Arnevik did not appeal this ruling.

After she lost, Arnevik researched the University’s policies on legal defense of employees. On June 5, 1997, Arnevik’s new attorney demanded the University indemnify Arnevik based on the University of Minnesota Board of Regents’ policy regarding legal defense of employees. The University informed Arnevik on August 20, 1997, that Arnevik was not eligible for defense or indemnification under this policy.

Arnevik settled with Johnson in Winnebago County, Iowa, for $100,000 from Ar-nevik’s personal automobile insurance carrier, $100,000 directly from Arnevik’s personal funds, and $20,000 from her un-derinsurance carrier. Arnevik then sued the University a second time seeking indemnification for the amount she paid to Johnson. Arnevik again demanded indemnification but she based her claim on the terms of the University’s policy regarding legal defense of employees. After trial, the court ruled in favor of the University and dismissed Arnevik’s petition. Arnevik appeals contending the trial court erred in finding her contract claim was barred by the doctrine of claim preclusion.

II. Scope of Review

This case was tried as a law action before the district court. Therefore, our review is for correction of errors at law. Equity Control Assocs., Ltd. v. Root, 638 N.W.2d 664, 670 (Iowa 2001) (citations omitted). “ ‘The trial court’s findings have the effect of a special verdict and are binding if supported by substantial evidence.’ ” Id. (quoting Land O’Lakes, Inc. v. Hanig, 610 N.W.2d 518, 522 (Iowa 2000)). “Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.” State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001). We are not bound by the trial court’s legal conclusions. Root, 638 N.W.2d at 670. However, we will construe the trial court’s findings broadly in favor of upholding the judgment. Id.

III. The Merits

Arnevik claims the trial court erred when it dismissed her second lawsuit. In particular, she argues the court erred in finding her contract claim was barred under the doctrine of claim preclusion. Ar-nevik also argues the court erred in denying her recovery based on the theory of the University’s bad faith failure to consider, investigate, and act upon its obligation to defend and indemnify Arnevik. Finally, she argues the court should have granted her relief pursuant to the Iowa Wage Payment Collection Act. Because we find only the issue of claim preclusion determinative of this case, we will not address these other arguments.

In Arnevik’s cross-petition in the Johnson suit, Arnevik argued she was acting within the scope of her employment at the time of the accident. Citing the theory of respondeat superior, Arnevik argued the University was legally required to indemnify Arnevik for her negligence leading to the accident. Later in the second suit, Arnevik argued the University was obligated to defend and indemnify her based on its own policy regarding defense of employees. Because the University failed to provide a defense in the first action, she argued the University breached the written employment contract between Arnevik and the University. The University argued the breach of contract claim was barred under the doctrine of claim preclusion. The district court agreed, finding in both actions Arnevik claimed she was entitled to defense and indemnification by the University.

Arnevik first based her right to indemnification and defense on the theory of re-spondeat superior. In the second action, she argued entitlement to defense and indemnification based on breach of contract. The court stated, “it is well established that simply asserting a new theory of recovery in a second action will not save the suit from being barred by claim preclusion.” Accordingly, the court dismissed Arnevik’s petition. On appeal, we must decide whether the principles of claim preclusion apply to the case before us.

The general rule of claim preclusion provides a valid and final judgment on a claim precludes a second action on that claim or any part of it. See Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 516 (Iowa 1998). The rule applies not only as to every matter which was offered and received to sustain or defeat the claim or demand, but also as to any other admissible matter which could have been offered for that purpose. Iowa Coal Min. Co. v. Monroe County, 555 N.W.2d 418, 441 (Iowa 1996). Claim preclusion, as opposed to issue preclusion, may foreclose litigation of matters that have never been litigated. Penn v. Iowa State Bd. of Regents, 577 N.W.2d 393, 398 (Iowa 1998) (claim preclusion bars all matters actually determined in the first action and all relevant matters that could have been determined). It does not, however, apply unless the party against whom preclusion is asserted had a “full and fair opportunity” to litigate the claim or issue in the first action. Whalen v. Connelly, 621 N.W.2d 681, 685 (Iowa 2000) (citations omitted). A second claim is likely to be barred by claim preclusion where the “acts complained of, and the recovery demanded are the same or where the same evidence will support both actions.” Id. (citations omitted). A plaintiff is not entitled to a second day in court by alleging a new ground of recovery for the same wrong. Id.; Bennett, 586 N.W.2d at 517 (“a party is not entitled to a ‘second bite’ simply by alleging a new theory of recovery for the same wrong”). When we consider a defense of claim preclusion, we look for the presence of three factors: the parties in the first and second action were the same; the claim in the second suit could have been fully and fairly adjudicated in the prior case; and there was a final judgment on the merits in the first action. See 50 C.J.S. Judgment §§ 702, 703, at 242-45 (1997). The absence of any one of these elements is fatal to a defense of claim preclusion. Id. § 704, at 246.

We begin by stating the parties to the cross-petition are identical to the parties in the present action. The University and Arnevik were parties in both actions and had the opportunity to litigate any appropriate claims. The first element of the defense of claim preclusion was satisfied.

We must now determine whether Arne-vik raised the contract claim or could have raised it in the first action. Arnevik does not now allege any new contract or tort theories occurred based on events arising subsequent to the court’s grant of the University’s motion for summary judgment on the first claim. Rather, both of her lawsuits stem from the accident with Johnson. The underlying facts in each action are the same. Arnevik claims in both she was acting within the scope of her employment at the time of the accident. Likewise, in both actions, Arnevik claimed she is entitled to defense and indemnification from the University. The only difference between Arnevik’s first and second claim is the ground upon which she asserted entitlement to indemnification. In the cross-petition Arnevik argued her rights were based on the theory of respondeat superi- or. In the present action, she bases her right to indemnification on a contractual theory. Though she bases her right to recovery on different theories, Arnevik requested the same recovery in both actions. See Shumaker v. Iowa Dep’t of Transp., 541 N.W.2d 850, 852 (Iowa 1995) (two actions are the same for purposes of claim preclusion if the recovery demanded in the second claim is the same as that demanded in the first).

Arnevik argues she could not have brought the contract claim in the first action because she was allegedly unaware of the University’s policy at the time she filed the cross-petition. The record shows the University’s policy on defense of employees was available on the internet in 1994. Tande, Arnevik’s district director at the University, testified Arnevik was aware the policy was available on the internet. In fact, University employees, including Arnevik, are made aware of the availability of University policies on the internet during employee orientation. Moreover, Arnevik could have obtained a copy of the policy through her supervisor or human resource department contact.

In any event, Arnevik’s knowledge, or lack thereof, of the policy is not determinative of this case. There are no allegations the University concealed the University’s policy on “Legal Defense of Employees.” Furthermore, it was Arnevik’s duty to explore and discover all of her possible causes of action and to bring them at the same time she brought her first claim. See Iowa Coal Min. Co., 555 N.W.2d at 441. Contrary to Arnevik’s assertion, pri- or resolution of the Johnson litigation was not necessary before she could bring her claim based on the policy. Since Johnson was already pursuing recovery from Arne-vik, the issue of whether the University was required to defend and indemnify Ar-nevik was relevant in the first action. Before the court dismissed Arnevik’s claim against the University, Arnevik could have engaged in discovery to determine other possible avenues of recovery. There was nothing to prevent Arnevik from litigating based upon the University’s indemnification and defense policy at the time she filed her cross-petition against the University.

Arnevik now asks that we disregard the final judgment on the merits in the first action and allow her to bring her second claim because she was unaware of the policy at the time of the first action. However,

[t]o hold ... the conclusive effect of a judgment either as an estoppel or as a merger or bar may be escaped by showing even justifiable ignorance of the existence of facts or evidence which might otherwise have been presented, or of other grounds upon which an omitted or rejected claim might have been sustained, is a clear violation of the fundamental policy and purpose of the doctrines of res judicata and collateral attack.

Guettel v. United States, 95 F.2d 229, 282 (8th Cir.1938) (quoting 2 Freeman on Judgments § 553, at 1178 (5th ed.1925)); see also Ellis v. State Farm Mut. Auto. Ins. Co., 249 Kan. 599, 604, 822 P.2d 35, 39 (1991) (“No principle of law exempts a person from the application of the doctrine of res judicata because the effort to break a single cause of action into two or more parts was due to neglect, accident, mistake, ignorance, or a subsequent change in the law.”). To allow claimants a second chance at recovery under these circumstances would open the courts to untold cases as claimants merely assert ignorance and pursue subsequent inventive causes of action. Therefore, the second element of the defense of claim preclusion — the claim in the second suit could have been fully and fairly adjudicated in the prior case— was satisfied.

Finally, we must determine whether there was a final judgment on the merits in the former proceeding. The trial court stated it was unfortunate Arnevik did not assert her contract claim in the first action. However, once Arnevik started down the path in the first action seeking indemnification from the University, she was required to bring all theories of recovery at that time. Tigges v. City of Ames, 356 N.W.2d 503, 509 (Iowa 1984) (litigant’s unsuccessful first claim in tort barred subsequent claim in contract). Ar-nevik had the opportunity to litigate all of her claims against the University in the first action. She did not simply demand defense and coverage, such as a letter to the University requesting such coverage, and then sued for breach of contract. This is not the situation we have before us. Instead, Arnevik attempted, through the formal adjudicatory process, to seek coverage based on the principle of respondeat superior. The court ruled against Arnevik on this theory of recovery. The court rendered a judgment on the merits in the first suit and this judgment is binding on the parties as a valid and final disposition. She may not now relitigate in an attempt to gain coverage simply because she asserted an improper theory in the first action. Thus, the third element of the defense of claim preclusion — requiring a final judgment on the merits in the first action — was satisfied.

Arnevik attempts to strike down the University’s defense of claim preclusion arguing her present claim is not barred because different facts were necessary to prove the respondeat superior claim than were necessary to prove her theory in contract. This argument is without merit. It is only important to determine whether the claim could have been brought in the first action, whether the parties involved in both actions are the same, and whether there was a final judgment on the merits in the first action. Even though some of the facts necessary to prove her claim based on contract may be different, that does not change the fact Arnevik was required to bring forth all potential theories of recovery at the time of the first action. See Iowa Coal Min. Co., 555 N.W.2d at 441.

IV. Conclusion

Despite the fact Arnevik had a full and fair opportunity to litigate her claims in the first action, she did not bring her claim for indemnification based on the University’s policy until the present action. Both actions arose from the same transaction, depended on the same underlying facts, and involved the same demand for relief. Consequently, had Arnevik wanted to pursue recovery based on the University policy, it was absolutely necessary for her to raise it in the first action. The mere fact Arnevik now invokes an alternate theory of recovery does not save this claim. We conclude there was substantial evidence to support the district court’s conclusion that Arnevik’s breach of contract claim was barred by claim preclusion. We affirm.

AFFIRMED.

      . Arnevik’s claim in the cross-petition based on respondeat superior was not a proper application of the legal principle. The doctrine is typically invoked by an injured third party as the basis of liability of an employer for the injuries caused by the acts or omissions of his or her employees. 20 C.J.S. Employer Employee § 190, at 269 (1992). Arnevik appeared to argue since a judgment was rendered against her based on injuries to a third person caused by Arnevik during the course of her employment, the University, as her employer, must compensate her for the loss she incurred.


source: Caselaw Access Project

author: SACKETT, C.J.

license: Public Domain

text:
    In re the MARRIAGE OF Gary E. DEAN and Vicki A. Dean. Upon the Petition of Gary E. Dean, Petitioner-Appellant, and Concerning Vicki A. Dean, Respondent-Appellee.
    No. 01-0239.
    Court of Appeals of Iowa.
    Jan. 9, 2002.

      Ben. T. Doran of Doran, Anderson & Baltimore, P.L.G., Boone, for appellant.
    Timothy McCarthy, II, of McEnroe, McCarthy & Gotsdiner, P.C., West Des Moines, for appellee.
    Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
   SACKETT, C.J.

Petitioner-appellant Gary E. Dean appeals challenging the property division made by the district court in dissolving his short-term, childless marriage. Gary paid debts respondent-appellee Vicki Dean had at the time of the marriage with money he brought to the marriage. He contends these payments should not have been found by the district court to be gifts to Vicki, and she should not have been relieved from repaying him the money he advanced. We affirm as modified.

Our review of the economic provisions of a divorce decree is de novo. Iowa R.App. P. 4 (1997). We examine the entire record and adjudicate anew the issues properly presented on appeal. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa RA.pp. P. 14(f)(7); In re Marriage of Grady-Woods, 577 N.W.2d 851, 852 (Iowa Ct.App.1998). We approach this issue from a gender-neutral position avoiding sexual stereotypes. In re Marriage of Pratt, 489 N.W.2d 56, 58 (Iowa Ct.App.1992); see also In re Marriage of Bethke, 484 N.W.2d 604, 608 (Iowa Ct.App.1992).

Before making an equitable distribution of assets in a dissolution, the court must determine all assets held in the name of either or both parties as well as the debts owed by either or both. See In re Marriage of Driscoll, 563 N.W.2d 640, 641-42 (Iowa Ct.App.1997); In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct.App.1994). The assets should then be given their value as of the date of trial. Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976); In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App. 1994). The assets and liabilities should then be equitably, not necessarily equally, divided after considering the criteria delineated in Iowa Code section 598.21(1) (1999). In general, the division of property is based upon each marriage partner’s right to a just and equitable share of the property accumulated as a result of their joint efforts. In re Marriage of Hitchcock, 309 N.W.2d 432, 437 (Iowa 1981).

Gary and Vicki married in January of 1999. They separated in January of 2000. A dissolution petition was filed in March of that year and a decree of dissolution was entered in January of 2001. At the time the decree was entered Gary was forty-two and Vicki was forty-six. Both parties were in good health.

Gary is a commodity consultant and a farmer. The record does not reveal his income. At the time of the marriage he had a substantial net worth. At the time of the dissolution he valued the assets and debts held in his name alone. He showed these assets to be worth $1,745,654.31 and these debts to be $59,810. Neither Gary nor Vicki contends that Gary’s net worth increased during the marriage. Therefore we find the net worth he showed the dissolution court as his to be the net worth he had at the time of marriage reduced only by the amount he spent to satisfy the debts Vicki had at the time of marriage.

Vicki is a teacher’s aide although she has worked in other fields. She earns about $950 a month. At the time of marriage she owned a twenty-six acre improved tract, three horses and a 1995 Ford Escort wagon. She still had the improved twenty-six acres at the time of the dissolution and valued it then at $87,719. We find this was its approximate value at the time of marriage. Vicki also had debts at the time of marriage of about $70,000, the majority of which were secured by a first and second mortgage on her real estate. She also owed attorney fees, real estate taxes and medical expenses.

Shortly after the parties were married Gary paid all of Vicki’s approximately $70,000 debt. Included in the $70,000 Gary paid was a $13,000 line of credit secured by the second mortgage on Vicki’s real estate. The line of credit was set up so Gary could borrow against it. As the marriage was failing Gary borrowed on that line of credit in the approximate amount of $13,000. At the time of the dissolution hearing the $13,000 had not been repaid.

The only question the district court was asked to decide was how to equitably allocate the parties’ assets and debts. Vicki advanced to the district court that she should leave the marriage debt free with the property she brought to the marriage and a pickup purchased during the marriage. Vicki contended Gary should have no credit for the $70,000 he advanced to pay her debts because in paying those debts Gary made a gift to her which should be set aside to her under Iowa Code section 598.21(2) (1999). This section provides:

Property inherited by either party or gifts received by either party prior to or during the course of the marriage is the property of that party and is not subject to a property division under this section except upon a finding that refusal to divide the property is inequitable to the other party or to the children of the marriage.

Gary said he never considered he was making a gift to Vicki when he paid her debts. Rather he paid them believing that the marriage would last and he was contributing to the parties’ joint financial good. Gary makes no claim to Vicki’s real estate but contends she should repay him for paying the debts she brought to the marriage.

The district court found Vicki’s testimony that Gary gave her a gift when he paid her debts more credible than Gary’s testimony he did not consider payment of Vicki’s debts a gift to her. The district court accepted Vicki’s argument and found the debt payment by Gary to be a gift to her. The court then said it would not restore Gary to the financial position he held before the marriage and that Vicki would not be required to reimburse Gary for money expended to pay the debts she brought to the marriage. The district court appeared to have determined that the issue was resolved by Iowa Code section 598.21(2) which provides that gifted and inherited property is not subject to division unless the court finds to not do so would be inequitable.

The district court then gave Gary the property in his name except Vicki received a pickup purchased for $17,555 shortly before the parties’ separation. Gary was ordered to pay the $13,000 owed on the line of credit and about $1000 Vicki owed on a credit card. We determine the pickup to be worth about $12,000 at the time of the dissolution. The net result of the district court’s decision is Vicki leaves the marriage with about $83,000 more than she brought to it.

Gary contends the property division made by the district court was not equitable because he was not given adequate consideration for property he brought to the marriage. He points to Iowa Code section 598.21(l)(b) which directs that one of the factors the court should consider in making an equitable division of property is what each party brought to the marriage. He further contends that the payment of Vicki’s debts was not a gift to her because he never intended that it be.

Although the parties only question that portion of the property settlement that concerns Gary’s payment of Vicki’s debts we cannot consider this issue in isolation but must look to the economic provisions of the decree as a whole in assessing the equity of the property division. See In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct.App.1995). Iowa is an equitable distribution state, which means the partners in a marriage that is to be dissolved are entitled to a just and equitable share of the property accumulated through their joint efforts. Id. Our review of the property division here is made difficult by the sparse record made in the district court. See Robinson, 542 N.W.2d at 5.

Yet the focal question is did Gary in paying debts in Vicki’s name and secured in a large part by real estate in her name, change the character of the $70,000 from property he brought to the marriage to property that should be set aside to Vicki as a gift.

Generally transfers of ownership between spouses have not been held to change the character of property inherited or gifted from a third person. In re Marriage of Fall, 593 N.W.2d 164, 167 (Iowa Ct.App.1999) (rejecting wife’s argument that in transferring husband’s gifted and inherited property into a revocable living trust that gave both husband and wife full power over the trust and the right to remove half of the assets the husband made a gift of half of the assets to the wife); In re Marriage of Liebich, 547 N.W.2d 844, 851 (Iowa Ct.App.1996) (holding the act of placing gifts or inheritances received by one spouse into joint ownership and/or commingling the same with other marital assets is not controlling in deciding whether the property should be divided as a marital asset); In re Marriage of Higgins, 507 N.W.2d 725, 727 (Iowa Ct.App.1993) (holding placement of the inheritance in joint ownership is not controlling); In re Marriage of Hoffman, 493 N.W.2d 84, 89 (Iowa Ct.App.1992) (holding where gifted or inherited property that went to one spouse was put in joint tenancy, the form in which the'property was held was not controlling and overruling In re Marriage of Butler, 346 N.W.2d 45, 47 (Iowa Ct.App.1984) and In re Marriage of Havran, 406 N.W.2d 450 (Iowa Ct.App.1987) to the extent they conflicted with this view); In re Marriage of Wertz, 492 N.W.2d 711 (Iowa Ct.App.1992) (holding the transfer of assets from the name of one marriage partner to the name of the other partner did not result in the transferred property being considered a gift); In re Marriage of Martens, 406 N.W.2d 819, 821 (Iowa Ct.App.1987) (holding the fact gift by wife’s father was made to marriage partners as joint tenants with full rights of survivorship, and not as tenants in common was only one factor to considered in the broader calculus of dona-tive intent and though fact husband’s name was on the deed was relevant to the issue of whether is should be set aside to wife alone it was not determinative).

The fact that property held in the name of one marriage partner is transferred to the name of the other marriage partner during the course of the marriage does not make it a gift as contemplated by Iowa Code section 598.21(1). See Fall, 593 N.W.2d at 167; Wertz, 492 N.W.2d at 711. Nor is the ownership of an asset the sole determinative factor in making an equitable division of marriage partners’ assets in a dissolution. We disagree with Vicki and the district court that the $70,000 should be set-aside to Vicki as a gift and should not be looked at as property Gary brought into this short-term marriage.

However, our inquiry does not end here for we need determine whether the property division in total was equitable. See In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App.1991). To do so we take into consideration the applicable criteria codified in Iowa Code section 589.21(1)(1999). The marriage was short. Iowa Code § 598.21(l)(a). Both parties brought property to the marriage but Gary brought more. Iowa Code § 598.21(l)(b). Where, as here, there is a wide disparity between the assets of the parties at the time of the marriage the length of the marriage is a major factor in determining the respective rights of the parties at the time of the dissolution. In re Marriage of Wallace, 315 N.W.2d 827, 831 (Iowa Ct. App.1981). The claim of either party to the property owned by the other prior to a marriage of this brief duration is minimal at best. See In re Marriage of Hass, 538 N.W.2d 889, 893 (Iowa Ct.App.1995); Wallace, 315 N.W.2d at 830-831.

There is no evidence either party made sacrifices for or contribution to the marriage. Iowa Code § 598.21(l)(c). The parties are both in good physical health and of an age allowing them to be gainfully employed. Iowa Code § 598.21(l)(d). Neither party made contributions to the increased earning power of the other. Iowa Code § 598.21(l)(e). There is no evidence either party left the job market during the marriage. Iowa Code § 598.21(l)(f).

Gary leaves the marriage with more financial security than does Vicki. Id. Vicki has not requested alimony, so that is not an issue, but the fact she leaves the marriage at a financial disadvantage is a factor that weighs in favor of her leaving the marriage with more property than she brought in.

We modify the district court’s decision to eliminate the requirement that Gary repay the equity loan of $13,000. He paid it once. Consequently when he took out the second loan he was only recouping the money he had paid. In addition, we order that Vicki pay Gary the sum of $20,000 amortized over ten years with interest at five percent per annum. The amount can be prepaid at any time at Vicki’s election and will remain a lien on her real estate until paid. Gary shall remain responsible for Vicki’s credit card debt. The result is that Vicki leaves the marriage with a net worth of $50,000 more than when she entered.

We award no appellate attorney fees. The costs on appeal are taxed one half to each party.

AFFIRMED AS MODIFIED.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST David L. BREHMER, an Attorney at Law of the State of Minnesota.
    No. C3-00-529.
    Supreme Court of Minnesota.
    April 18, 2002.
    David L. Brehmer, Eden Prairie, pro se.
    Edward J. Cleary, Director, Timothy M. Burke, Senior Assistant Director, St. Paul, for respondent.
   OPINION

PER CURIAM.

Respondent David L. Brehmer was licensed to practice law in Minnesota on October 27, 1989. On May 17, 2001, the Director of the Office of Lawyers Professional Responsibility served charges of unprofessional conduct on Brehmer pursuant to Rule 9(a), Rules on Lawyers Professional Responsibility (RLPR). On June 7, 2001, Brehmer failed to appear at a mandatory prehearing meeting concerning the charges as required by Rule 9(e), RLPR. As a result, the director made a motion to the Chair of the Lawyers Professional Responsibility Board Panel, under Rule 10(d), RLPR, to bypass further panel proceedings and file a petition for disciplinary action under Rule 12, RLPR. The chair granted the director’s motion.

On September 12, 2001, Brehmer was served with a Notice and Petition for Disciplinary Action. The notice and petition were filed on September 19, 2001. Breh-mer failed to serve or file an answer to the petition and, on October 8, 2001, the director served and filed a motion for summary relief pursuant to Rule 13(b), RLPR. On October 19, 2001, this court granted the director’s motion and issued an order deeming the facts of the petition admitted pursuant to Rule 18(b), RLPR. In the order, Brehmer and the director were given until November 19, 2001, to submit written proposals to the court regarding the appropriate discipline to impose on Brehmer. The director submitted a proposal recommending that Brehmer be disbarred. Brehmer did not submit a proposal or otherwise respond to the court’s October 19 order. Because Brehmer’s misconduct is deemed admitted, the only issue to be resolved by the court is the appropriate discipline.

Brehmer has an extensive disciplinary history. On September 14, 1995, he was admonished for failing to submit a required informational statement in a timely manner, failing to inform a client that the client’s case would be dismissed if the informational statement were not filed, and withdrawing from representation without telling the client that the dismissal deadline for filing the informational statement had passed. On February 23, 1996, Breh-mer received two more admonitions. The first was for failing to communicate clearly his billing practices to a client, failing to return the client’s telephone calls, failing to abide by the client’s decision to request an apology from the Hennepin County District Court, failing to pursue the client’s matter diligently, and failing to communicate adequately with the client. The second admonition was for failing to pursue a client’s matter diligently, failing to return the client’s telephone calls, failing to communicate clearly to the client the status of the client’s claim, and asserting a lien on a claim for fees in an unrelated matter.

On September 24,1997, this court placed Brehmer on private probation for a period of two years for failing to pursue his clients’ matter diligently and failing to communicate with his clients. On May 14, 1999, Brehmer received another admonition for pursuing bad faith, frivolous litigation; failing to file a court-ordered reply brief or written response addressing sanctions; and failing to draft appellate briefs pursuant to court rules. On May 24, 1999, Brehmer’s private probation was extended for an additional year because, while on probation, Brehmer failed to deposit a client’s funds into a trust account, failed to handle a client matter with the requisite thoroughness and preparation, failed to communicate adequately with the client, and failed to identify a client matter on inventories that he was required to provide monthly to his probation supervisor.

Finally, on January 4, 2001, this court suspended Brehmer from the practice of law for a minimum of one year for pursuing frivolous claims, making false statements to the court, violating court orders and rules, failing to prepare for trial, failing to comply with court-imposed deadlines, the unauthorized practice of law in Wisconsin, failing to attend depositions, noncommunication, failing to maintain clients’ retainers and cost advances in a trust account, failing to provide an accounting of clients’ funds, failing to return unearned fees, neglect of client matters, fraudulently executing client affidavits, violating the conditions of his probation, and failing to cooperate with disciplinary investigations. In re Brehmer, 620 N.W.2d 554, 556-60 (Minn.2001).

The misconduct giving rise to the current petition for disciplinary action occurred between September 1999 and July 2001. The petition contains 19 separate counts of professional misconduct, involving multiple violations of our Rules of Professional Conduct. The misconduct violated Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 1.5(a), 1.15(b), 1.15(c), 1.15(c)(3), 1.15(c)(4), 1.15(h), 1.16(d), 3.2, 3.4(c), 8.1(a)(3), 8.4(b), 8.4(c), and 8.4(d), and Rules 25 and 26, RLPR. Each of these rules was violated at least once.

Summarily, Brehmer’s professional misconduct includes neglect of client matters, noncommunication with clients, failure to return client files and unearned fees, failure to provide an accounting of services and bills, failure to inform clients of his suspension, charging unreasonable fees, failure to pay a malpractice judgment, failure to respond to a criminal summons, failure to pay a judgment to a former client, improper trust account practices and record keeping, failure to pay certain federal and state taxes, and failure to cooperate with disciplinary authorities.

Brehmer’s misconduct has resulted in direct monetary and nonmonetary harm to a number of his clients above and beyond the harm that ordinarily accompanies the mishandling and neglect of client matters. See In re Grzybek, 567 N.W.2d 259, 263 (Minn.1997) (noting the “substantial inconvenience and unnecessary frustration” that clients suffered due to an attorney’s misconduct). At least six clients paid a total of approximately $6,750 in retainers for work Brehmer never performed. Brehmer never returned these unearned retainers to the clients involved. In addition, two clients had their case dismissed, one client had to obtain documents from the court after Brehmer faded to return the client’s file, and one client was issued an order to show cause.

I.

As we have said many times, the purposes of attorney discipline are to protect the public, the legal profession, and to guard the administration of justice. Brehmer, 620 N.W.2d at 561; In re Madsen, 426 N.W.2d 434, 435 (Minn.1988). We determine the appropriate discipline by considering: (1) the nature of the misconduct; (2) the cumulative weight of the rule violations; (3) the harm to the public; and (4) the harm to the legal profession. Brehmer, 620 N.W.2d at 561; Madsen, 426 N.W.2d at 436. An attorney’s prior disciplinary history is relevant to the determination of the appropriate discipline. In re Harp, 560 N.W.2d 696, 700 (Minn.1997). For guidance in determining the appropriate discipline, we may turn to cases involving similar attorney misconduct. Brehmer, 620 N.W.2d at 561; Harp, 560 N.W.2d at 700-01. Nonetheless, we decide each case on its unique facts and circumstances. In re McCoy, 447 N.W.2d 887, 890 (Minn.1989).

II.

Based on Brehmer’s admitted misconduct, we conclude that Brehmer has engaged in an ongoing pattern of serious misconduct. Standing alone, that misconduct would warrant severe discipline. See In re Flanery, 431 N.W.2d 115, 118 (Minn.1988) (recognizing that, in cases of neglect of more than one client’s matters, this court has typically ordered either indefinite suspension or disbarment). His misconduct does not, however, stand alone. Much of the misconduct is similar, if not identical, to the misconduct that resulted in his previous discipline. See, e.g., In re Getty, 518 N.W.2d 18, 21 (Minn.1994) (disbarring attorney whose misconduct was according to persistent pattern). Moreover, some of the misconduct occurred while Brehmer was suspended or otherwise subject to public discipline. See In re Ray, 610 N.W.2d 342, 346 (Minn.2000) (noting that this court applies severe discipline for unauthorized practice of law during suspension when suspension was imposed because of disciplinary violations).

Disbarment is an appropriate sanction for attorneys who engage in an ongoing pattern of serious misconduct. See Grzybek, 567 N.W.2d at 265 (disbarring attorney for repeated neglect of client matters, failure to cooperate with disciplinary authorities, misappropriation of $750 in client funds, and failure to comply with court orders); Harp, 560 N.W.2d at 697, 701 (disbarring attorney for failure to comply with supervised probation order, client neglect and noncommunication, failure to pay judgment and federal and state taxes, various trust account violations, failure to return client files and unearned fees, unauthorized practice of law, abandonment of his law practice, and noncooperation with disciplinary authorities); McCoy, 447 N.W.2d at 890-91 (disbarring attorney for neglect of multiple client matters, misrepresentation, and failure to return client files); In re Simonson, 420 N.W.2d 903, 904-05, 907 (Minn.1988) (disbarring attorney for misappropriation of client funds, failure to pay state and federal payroll taxes with respect to employees, and failure to maintain appropriate and required business and trust account records); In re Weyhrich, 339 N.W.2d 274, 276-79 (Minn. 1983) (disbarring attorney for gross neglect of client matters, noncommunication with clients, failure to make scheduled court appearances without excuse, conducting bad-faith litigation, and failure to cooperate with disciplinary authorities).

In light of the purposes underlying our attorney discipline system, especially our responsibility to protect the public, we conclude that disbarment is the appropriate discipline for Brehmer based on his numerous and serious violations of our rules of professional conduct, the harm those violations caused to his clients, his extensive disciplinary history, his failure to comply with the terms of earlier discipline, the lack of any mitigating circumstances, and his failure to cooperate with the director’s office in this disciplinary matter. Therefore, we order that, upon the filing of this opinion, David L. Brehmer is disbarred from the practice of law in the State of Minnesota.

Disbarred.

      . Although Brehmer did not serve or file any response to the court’s October 19 order, he did appear at the hearing before this court.


author: BLATZ, Chief Justice.

text:
    James O. JASPER, Petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
    No. C1-00-2098.
    Supreme Court of Minnesota.
    April 18, 2002.

      Jeffrey S. Sheridan, Strandemo & Sheridan, Eagan, MN, Appellant’s Attorneys.
    Mike Hatch, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Joel A. Watne, Assistant Attorney General, St. Paul, MN, Respondent’s Attorneys.
   OPINION

BLATZ, Chief Justice.

James Jasper’s driver’s license was revoked by the Commissioner of Public Safety because Jasper drove with an alcohol concentration of 0.10 or greater. Jasper petitioned the district court for review of the commissioner’s order of revocation arguing that evidence of his breath-test results was inadmissible because the instrument used to obtain the evidence, the Intoxilyzer 5000, Series 68-01, was not properly approved by the commissioner. The district court sustained the commissioner’s order and the court of appeals affirmed. We affirm.

Jasper was stopped and arrested for driving under the influence of alcohol in Inver Grove Heights, Minnesota, in March 2000. During the course of the stop Jasper consented to a breath test and Officer Joe Gelhaye of the Inver Grove Heights Police Department administered a test using the Intoxilyzer 5000, Series 68-01 (Series 68-01). Jasper’s breath-test results revealed an alcohol concentration of 0.24 and the commissioner revoked Jasper’s driver’s license for a period of 180 days under Minn.Stat. § 169.123, subd. 4(e)(3) (1998).

Jasper petitioned the district court for review of the commissioner’s order of revocation as provided for by Minn.Stat. § 169.123, subd. 5c (1998). Jasper argued that the Series 68-01 was not properly approved by the commissioner as required by law and that, consequently, evidence of his breath-test results was inadmissible. Specifically, Jasper argued that approval of the Series 68-01 can be accomplished only through the promulgation of a new rule by the commissioner in accordance with the rulemaking procedures set forth in the Minnesota Administrative Procedure Act (MAPA), Minn.Stat. §§ 14.001-.69 (1998).

The significance of Jasper’s argument is best understood when placed in its statutory and historical context. Between 1983 and 1997, law enforcement officials throughout the state used the Intoxilyzer 5000, Series 64 (Series 64), and the Intoxi-lyzer 5000, Series 66 (Series 66), to measure the alcohol concentration of breath samples. In 1984, a statute was enacted providing that the results of a breath test obtained through the use of an “approved” infrared breath-testing instrument are admissible in evidence without antecedent expert testimony establishing that the instrument provides a trustworthy and reliable measure of alcohol concentration. Act of April 23, 1984, eh. 430, § 9, 1984 Minn. Laws 88, 92 (codified as amended at Minn. Stat. § 634.16 (1998)). A party seeking to admit such evidence need only show that the breath test was performed by a person fully trained in the use of the instrument pursuant to training given or approved by the commissioner. Minn.Stat. § 634.16.

In April 1984, the same month during which section 634.16 was enacted, the commissioner promulgated Minn. R. 7502.0420, subp. 2 (2001) (1984 rule). The 1984 rule provides: “The Intoxilyzer 5000 instrument, which uses infrared technology, is approved for use in this state for the purpose of determining the alcohol concentration of a breath sample.”

At some point during the mid-1990s, the Bureau of Criminal Apprehension (BCA) considered replacing the Series 64 and 66 with a new breath-testing instrument. After testing and evaluating two instruments, the BCA decided to replace the Series 64 and 66 with the Series 68-01 and the commissioner subsequently issued three orders regarding the newly selected Series 68-01. Order 101, issued in May 1997, provides: “Pursuant to the provisions of Minnesota Statutes Sections 169.121, 169.123 and 169.128, and Minnesota Rules part 7502.0420, subpart 2, the Intoxilyzer 5000, Series 68, is approved for use in this state for the purpose of determining the alcohol concentration of a breath sample.” In May 1998, the commissioner issued Order 101a, clarifying that Order 101 was meant to apply to the Series 68-01. This was followed by Order 101b in September 1999, stating that Orders 101 and 101a were meant to include all software used by the Series 68-01.

While reserving his argument that the Series 68-01 was not a properly approved infrared breath-testing instrument, Jasper stipulated at the implied consent hearing that Officer Gelhaye was a certified intoxi-lyzer operator trained by the BCA and that the officer administered Jasper’s breath test pursuant to his training. Jasper also stipulated that the March 2000, breath-test results showing that he had an alcohol concentration of 0.24 were accurate and reliable.

At the implied consent hearing, the commissioner called expert witness Gwen Williams, a forensic scientist with the breath-testing section of the BCA laboratory, to testify. Williams had attended courses on the maintenance and repair of the Intoxilyzer 5000 and had testified numerous times as an expert on the subject of breath testing. She testified that the infrared method of analysis used by the Intoxilyzer 5000 was widely accepted within the field of forensic science and that the scientific literature supported the accuracy and reliability of the infrared method. Based on her review of the BCA documents concerning Jasper’s breath test and the stipulations made by Jasper at the hearing, Williams opined that the results showing an alcohol concentration of 0.24 were accurate and reliable.

In addition, Williams testified that, in spite of several differences, the Series 68-01 and the Series 64 and 66 used the same method of infrared analysis and all of the Intoxilyzer 5000 models measured alcohol concentration in “exactly the same” way. She stated further that, although the instruments were the same in terms of their analytical functioning, the changes and modifications she discussed made the Series 68-01 more accurate and reliable than the Series 64 and 66.

The district court sustained the commissioner’s order of revocation and found on two distinct grounds that the commissioner properly approved the Series 68-01. First, the district court concluded in its order that the commissioner properly approved the Series 68-01 by issuing Orders 101, 101a, and 101b. Second, in a memorandum of law incorporated by reference into its order, the district court noted that the “method of infrared analysis employed in each Intoxilyzer machine is identical” and the Series 68-01 was therefore approved by the commissioner’s 1984 rule. Thus, because the method of analysis had not changed, the district court stated that the promulgation of a new rule was unnecessary.

Jasper appealed, and the court of appeals affirmed the district court’s order. The court of appeals held that a new rule approving the Series 68-01 was not required because the record did not reveal any material alterations to the original In-toxilyzer 5000 approved by the 1984 rule. Jasper v. Comm’r of Pub. Safety, No. C1-00-2098, 2001 WL 711337, at *1 (Minn. App. June 26, 2001). The court of appeals stated that, absent such a record, it would defer to the commissioner’s interpretation that the 1984 rule extends to the Series 68-01, including software upgrades. Jasper, 2001 WL 711337, at *3. The court of appeals also concluded that the commissioner established the reliability of Jasper’s breath-test results through Williams’s expert testimony and that Jasper failed to show why the test results were unreliable. Id. at *3. Jasper petitioned this court for review of the court of appeals’ decision and we granted the petition to consider the issue of whether the commissioner properly approved the Series 68-01.

We note at the outset that there is nothing in the record to suggest that the Series 68-01, in general, or the results of Jasper’s breath test, in particular, are untrustworthy or unreliable. Indeed, Jasper stipulated as to the accuracy and reliability of his breath-test results at the implied consent hearing. Furthermore, the commissioner established the trustworthiness and reliability of the results through antecedent expert testimony. Accordingly, even if we were to assume that the Series 68-01 was not properly approved and that section 634.16 does not apply in this case, the record would support the district court’s decision to admit the evidence.

Given these factual circumstances, we must decide the preliminary question of whether the approval issue is moot. We do not issue advisory opinions, nor do we decide cases merely to establish precedent. State v. Arens, 686 N.W.2d 131, 132 (Minn.1998); In re Schmidt, 443 N.W.2d 824, 826 (Minn.1989). The mootness doctrine, however, “is a flexible discretionary doctrine, not a mechanical rule that is invoked automatically.” State v. Rud, 359 N.W.2d 673, 576 (Minn.1984). There is a well-established exception to the mootness doctrine, for example, for issues that are capable of repetition yet evading review. See, e.g., State ex rel. Archabal v. County of Hennepin, 505 N.W.2d 294, 297 (Minn.1993); State ex rel. Doe v. Madonna, 295 N.W.2d 356, 361 (Minn.1980). In addition, this court has exercised its discretion to decide issues that are technically moot when the issue is “functionally justi-ciable” and one of public importance and statewide significance that should be decided immediately. State v. Brooks, 604 N.W.2d 345, 347-48 (Minn.2000); Rud, 359 N.W.2d at 576. “A case is functionally justiciable if the record contains the raw material (including effective presentation of both sides of the issues raised) traditionally associated with effective judicial decision making.” Rud, 359 N.W.2d at 576; see also Brooks, 604 N.W.2d at 347-48.

The record in the present case contains detailed information regarding the Series 68-01 and the ways in which it differs from older Intoxilyzer 5000 models. Further, the parties ably briefed and argued the issue of whether the Series 68-01 was properly approved. Thus, we conclude that the approval issue is functionally justiciable. In addition, the Series 68-01 is the only breath-testing instrument currently in use in this state and there has been substantial litigation in the district courts as to whether the instrument was properly approved. Therefore, we conclude that the issue is one of public importance and statewide significance that should be decided immediately.

Having decided that the issue is properly before the court, we now address the question of whether the Series 68-01 was properly approved by the commissioner. Our analysis begins with the commissioner’s 1984 rule approving the “Intoxilyzer 5000, which uses infrared technology.” Jasper argues that the 1984 rule does not cover the Series 68-01 because the Series 68-01 differs significantly from the Series 64 and 66. In response, the commissioner argues that any differences between the Series 68-01 and older Intoxilyzer 5000 models are minor and that the 1984 rule is broad enough to include the Series 68-01. The district court found that the method of analysis employed by the Series 68-01 was identical to the method used by the Series 64 and 66 and concluded that the 1984 rule therefore covered the Series 68-01.

When, as here, the language of an administrative rule is clear and capable of understanding, interpretation of the rule presents a question of law reviewed de novo. See St. Otto’s Home v. Dep’t of Human Servs., 437 N.W.2d 35, 39-40 (Minn.1989). As for the district court’s findings of fact, they will not be set aside unless dearly erroneous. Minn. R. Civ. P. 52.01; Astleford Equip. Co., Inc. v. Navistar Int’l Transp. Corp., 632 N.W.2d 182, 193 (Minn.2001). We hold findings of fact as clearly erroneous only when we are “left with a definite and firm conviction that a mistake has been committed.” In re Improvement of Murray County Ditch No. 34, 615 N.W.2d 40, 49 (Minn.2000); N. States Power v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). When findings of fact rest almost entirely on expert testimony, the district court’s evaluation of credibility is of particular significance. In re Knops, 536 N.W.2d 616, 620 (Minn.1995); In re Joelson, 385 N.W.2d 810, 811 (Minn.1986).

Having reviewed the record below, we conclude that the district court’s finding that the Series 68-01 is analytically identical to the Series 64 and 66 is not clearly erroneous. Expert witness Williams repeatedly stated during her testimony that the Series 68-01 and the Series 64 and 66 used the same method of analysis. Jasper did not rebut Williams’s testimony and the district court concluded that she was a credible witness. Based on this record, we are not “left with a definite and firm conviction that a mistake has been committed.” See Improvement of Murray County Ditch No. 34, 615 N.W.2d at 49.

Nonetheless, Jasper argues that our inquiry cannot end here. According to Jasper, the fact that the Series 68-01 and the Series 64 and 66 employ the identical method of analysis does not necessarily lead to the conclusion that the Series 68-01 is covered by the 1984 rule. On the facts of this case, Jasper’s argument is not persuasive. The primary, if not sole, purpose of breath-testing instruments is to measure the alcohol concentration of breath samples. In light of this purpose, the method of analysis used by the instrument to make such measurements is its most essential characteristic. Again, the district court found that the Series 68-01 and the Series 64 and 66 are identical in this regard. Based on the record below, we conclude that the Series 68-01 falls within the scope of the 1984 rule and is therefore a properly approved “infrared breath-testing instrument” as defined in section 169.01, subd. 68.

Affirmed.

      . Minnesota’s Implied Consent Law was amended and recodified in 2000 and is now found at Minn.Stat. §§ 169A.50-.53 (2000). The 2000 amendments took effect on July 1, 2001. Act of May 15, 2000, ch. 478, art. 2, § 9, 2000 Minn. Laws 1484, 1538. Because this case arises from events that took place before July 1, 2001, all citations are to the pre-amendment version of the Implied Consent Law.

      . Section 634.16 states:
      In any civil or criminal hearing or trial, the results of an infrared breath-test, when performed by a person who has been fully trained in the use of an infrared breath-testing instrument, as defined in section 169.01, subdivision 68, pursuant to training given or approved by the commissioner of public safety or the commissioner’s acting agent, are admissible in evidence without antecedent expert testimony that an infrared breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath.
      Under Minn.Stat. § 169.01, subd. 68 (1998), the term " ‘[i]nfrared breath-testing instrument' means a breath-testing instrument that employs infrared technology and has been approved by the commissioner of public safety for determining alcohol concentration.” (Emphasis added.)

      . Williams testified as to five differences between the Series 68-01 and the Series 64 and 66. First, two additional filters were added to the Series 68-01 to enhance its ability to discriminate more accurately between ethyl alcohol — the type of alcohol found in alcoholic beverages — and other substances. Second, software upgrades were made that affected the functioning of the printer attached to the Series 68-01 and the appearance of the printouts. Third, the replicate tracking system was changed to prevent the Series 68-01 from accepting a test result if the measurements rendered by the subject and replicate tests varied by 0.006 or more. Williams stated that all models of the Intoxilyzer 5000 performed two measurements — a subject test and a replicate test — on each breath sample. When the results of a subject and replicate test vary by 0.006 or more, the Series 68-01 will reject the results and display a "please blow" message. Earlier models, in contrast, accepted test results with a deviation of 0.006. Fourth, Williams indicated that the Series 68-01 contained different "plumbing,” including a smaller breath sample chamber and a modified exhaust and recirculation system. Finally, the amount of air needed to provide an adequate breath sample for the Series 68-01 was set at 1.1 liters, whereas the Series 64 and 66 were incapable of measuring volume directly and instead used an estimate of volume based on inches of water pressure over time.

      . We also note that after we granted Jasper’s petition for review the commissioner promulgated a new rule, Minn. R. 7502.0420, subp. 3 (2001). While not in effect at the time the Series 68-01 was used in the present case, Minn. R. 7502.0420, subp. 3, provides:
      The Intoxilyzer 5000 instrument, Series 68, identified by the serial number SN68-01 and followed by four digits, which uses infrared technology, is approved for use in this state for the purpose of determining the alcohol concentration of a breath sample. This approved instrument includes all software updates and changes through Software Version G1408.43 and Slave 75— 0037.

      . At Jasper's implied consent hearing, the district court made reference to “numerous cases” in which petitioners argued that the Series 68-01 was not properly approved and noted that district courts have reached opposing conclusions on this issue. Similarly, at oral argument, counsel for the commissioner stated that the reliability of breath-test results has been challenged in approximately 80 cases on the basis that the Series 68-01 was not properly approved.

      . While not of precedential value, we find support for our conclusion in the Wisconsin Supreme Court's decision in State v. Busch, 111 Wis.2d 429, 576 N.W.2d 904 (1998). In that case, Busch argued that evidence of his breath-test results was inadmissible on the ground that the instrument used to obtain it was not properly evaluated and approved by the Wisconsin Department of Transportation (WDOT). Id. at 905. The head of the chemical-test section of the WDOT had previously evaluated and approved an earlier model of the instrument, but had not subjected the new model to the same procedure. Id. at 905. At a hearing on Busch’s motion, an expert testified that, while there were some differences between the new and old models, those changes did not affect the analytical functioning of the instrument. Id. at 907. Based on this testimony, the circuit court found that the new and old models were essentially the same machine. Id. at 907-08. On appeal, the Wisconsin Supreme Court held that the circuit court's finding was not an erroneous exercise of the court's discretion. Id. at 911.

      . Our holding that the 1984 rule covers the Series 68-01 makes it unnecessary to consider the commissioner’s alternative argument that the Series 68-01 was properly approved by Orders 101, 101a, and 101b. We note, however, that the orders appear to be statements of general applicability and future effect that would otherwise require adherence to the rulemaking procedures outlined in the MAPA. See Minn.Stat. § 14.02, subd. 4 (2000) (defining a "rule” as "every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure”).


author: CRIPPEN, Judge.

text:
    In re the Marriage of Tammy LUDWIGSON, n/k/a Elkin, Petitioner, Respondent, v. John LUDWIGSON, Appellant.
    No. C0-01-1616.
    Court of Appeals of Minnesota.
    March 19, 2002.

      Mary Catherine Lauhead, St. Paul, for respondent.
    Gary A. Weissman, Minneapolis, for appellant.
    Considered and decided by CRIPPEN, Presiding Judge, PETERSON, Judge, and HALBROOKS, Judge.
   OPINION

CRIPPEN, Judge.

In this child support modification proceeding, appellant-obligor John Ludwigson questions the determination of his income and the child support magistrate’s decision to abandon a discount based on appellant’s visitation time with his children. Appellant also disputes the magistrate’s authority to award $3,000 in attorney fees deemed necessary for the participation of respondent Tammy Elkin in this proceeding. Finally, respondent asks this court to review the magistrate’s decision denying her entitlement to a dependency exemption unless her gross monthly income exceeds $1,500. Neither party having identified matters of evidence or law entitling them to relief on appeal, we affirm.

FACTS

Appellant John Ludwigson and respondent Tammy Elkin divorced in 1995, and the trial court placed with respondent custody of their three minor children, who in 2002 will be ages 10, 14, and 16. As part of the divorce judgment, appellant was entitled to claim all three dependency exemptions until respondent “becomes employed,” when she would be entitled to claim the youngest child as a dependent. In 1996, incident to respondent’s petition to move her children to California, the parties stipulated that appellant’s support obligation would decrease by 25% during the summer months to provide for appellant’s increased summer visitation. Thus, appellant’s monthly support obligation became $1,288.70.

After moving back to Minnesota in March 2001, respondent petitioned the court to increase appellant’s support obligation. Appellant, in turn, moved the court to reinstate his entitlement to claim all three of the tax-dependency exemptions, as respondent had claimed one de-pendant in 1998, 1999, and 2000. With cost-of-living adjustments, appellant’s monthly payment at the time of the hearing in May 2001 would have increased to $1,521.

The child support magistrate’s order, subsequently ratified by the trial court, concluded that appellant’s current net monthly income was $5,724.42, representing a substantial change in circumstances and justifying an increase in monthly guideline support to $2,004. The order did not provide the previously enjoyed 25% reduction for the summer months premised on time the children spend with appellant. In addition, the magistrate awarded respondent $8,000 in need-based attorney fees. Finally, the order determined it appropriate that respondent claim a tax-dependency exemption only when she earned at least $1,500 per month for nine months of the year.

ISSUES

1.Was it error to determine that appellant has net income for child support purposes of $5,724.42?

2. Was it error to abandon a prior determination, premised on a stipulation, which reduced appellant’s child support obligation to account for increased visitation?

3. Is a child support magistrate empowered to award need-based attorney fees?

4. Was it error to construe the judgment to prohibit respondent’s tax-dependency exemption claim unless her net monthly income reached a set threshold?

ANALYSIS

1.

Appellant contends initially that the finding on his income stems from a miscalculation of his monthly benefits, determined from a pay stub ending March 31, 2001, that states his gross weekly wages as $1,923.08. Multiplying that number by 52 weeks in the year and dividing by 12 months, appellant concludes that his monthly wage, a preliminary consideration in calculating his income, should be $8,333.35, more than $500 less than the figure shown in the magistrate’s exhibit. In addition, appellant argues that his net-income calculation erroneously included business-expense reimbursements and a nonexistent healthcare benefit.

This court will reverse a trial court’s order regarding child support modification “only if we are convinced that the court abused its broad discretion” and reached a “conclusion that is against the logic and the facts on [the] record.” Gully v. Gully, 599 N.W.2d 814, 820 (Minn.1999) (alteration in original) (quotation omitted). The standard for reviewing a child support magistrate’s decision is the same as it would be if the trial court had made the decision. Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App.2000). Findings on net income for child support purposes “will be affirmed on appeal if those findings have a reasonable basis in fact and are not clearly erroneous.” State ex rel. Rimolde v. Tinker, 601 N.W.2d 468, 470 (Minn.App.1999).

Both to the magistrate and to this court, appellant asserts that, to calculate his correct annual gross income, the basis of evidence must be the weekly gross of $1,923.08 that is shown on appellant’s 3/31/01 pay stub. But the income calculation appellant disputes has another basis in fact, which is evident in an exhibit respondent submitted to the magistrate on the subject showing both the 3/31/01 pay stub and respondent’s related calculation of net income. The gross monthly income figure — $9,426.67—used by the magistrate, represents exactly one-third of the “Medicare base” gross -income to date ($28,280) reported on appellant’s pay stub for the period through the end of March 2001. Using this gross income figure, the magistrate applied appropriate deductions and correctly found a net income of $5,724.42. The record permits this calculation, and there is no evidence to suggest that this calculation of gross income — one-third of $28,280 — included any excludable reimbursements.

Respondent contends that the magistrate’s income calculation is also justified because, as the magistrate noted, appellant never disputed the calculation. It is true, as appellant points out, that he offered into evidence a calculation premised on his weekly salary. But it is also true, as the magistrate’s finding suggests, that appellant never offered any evidence to refute the calculation of his monthly income as one-third of the reports of accumulated income shown on his 3/31/01 pay stub. The magistrate’s findings on income are not contradicted by any evidence of record.

Appellant contends that his alternate calculation of his net monthly income would produce a child support award that is insufficient to permit modification of the 1996 order. Child support may be modified if the moving party shows a substantial change in circumstances that renders the existing support award unreasonable and unfair. Minn.Stat. § 518.64, subd. 2(a) (2000). To establish a rebuttable presumption that the existing child support order is “unreasonable and unfair” the moving party may show a change in earning or needs of the party or the children that would result in payments at least 20% and $50 per month higher or lower than the current order requires. Id., subd. 2(b)(1) (2000). Given the magistrate’s determination of $2,004 for child support, even if adjusted for the summer visits, appellant’s monthly obligation would still be $1,878.75 — representing more than a 20% increase over the $1,521 — and presumptively establishing a substantial change in circumstances. Moreover, as respondent contends, the present calculation of appellant’s net income includes a pension deduction of five percent of his gross income, a deduction that appellant never previously enjoyed. Finally, we observe appellant’s error in assuming that if the total award were not increased by 20%, modification could not occur. While section 518.64 establishes a presumption for modification when the new award would change by 20% and $50, it does not proscribe modification in other circumstances. To the contrary, a court may determine whether other situations, involving lesser changes in income, warrant modification.

2.

Appellant contends that, however his child support obligation is calculated, it should be diminished by the 25% reduction during the summer months (when appellant would have more visitation time and thus less child support obligation). As already determined, the record supports the magistrate’s determination that increases in appellant’s income represent a substantial change in circumstances that compelled the magistrate to proceed in a redetermination of child support. See, e.g., Minn.Stat. § 518.64, subd. 2(a)(1), (b)(1), (c)(1) (2000) (once a substantial change has been shown, which renders the prior support award unfair and unreasonable, the court must consider the needs of the child and the custodial parent, and if modification is warranted, determine the amount).

When determining the modified award, the magistrate was bound to apply current law, which compels disregard for time spent with a noncustodial parent. See, e.g., Rogers v. Rogers, 622 N.W.2d 813, 820-21 (Minn.2001) (announcing that the children’s time spent with the noncustodial parent is not determinative of the support obligation). And it is evident that the magistrate expressly weighed the resources and needs of the parties as factors other than guidelines to support the award it made.

Appellant insists that this result is inappropriate because the summer-month discount was determined not just by a prior judgment but also by stipulation. But that stipulation anticipated modification if at a future time the parties live in “the same location.” Moreover, a stipulation limiting child support is readily disregarded as against public policy. See Aumock v. Aumock, 410 N.W.2d 420, 421 (Minn.App.1987) (stating that the rights of minor children are not subject to determination through the bargaining process). There was also evidence in the stipulation to permit the magistrate’s finding that the aim of the document was to “accommodate the fact that [respondent] was moving from Minnesota with the children.” It is not evident that the stipulation had a primary goal of reducing appellant’s support obligation.

Appellant contends that, with respect to the 1996 modification, the parties’ circumstances have not changed in terms of the frequency of visits still occurring after the children have moved back to Minnesota. Respondent disputes this view of the facts, contending that the children currently spend fewer overnight visits with appellant and that the older boys — at 14 and 16 — are apt to exercise fewer visits. We need not determine this dispute because, although the magistrate found a substantial change in circumstances, the visitation facts were not clearly developed below. And because of the change in appellant’s income, a change in his child support obligation was appropriate.

3.

Appellant argues that the child support magistrate lacked subject-matter jurisdiction to award respondent attorney fees for this child support modification. Subject-matter jurisdiction is a legal question. State v. R.M.H., 617 N.W.2d 55, 58 (Minn.2000). But an attorney-fee award under Minn.Stat. § 518.14, subd. 1 (2000), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn.App.1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).

The Expedited Child Support Process Rules provide that “[c]hild support magistrates have the powers and duties necessary to perform their role in the expedited child support process.” Minn. R. Gen. Pract. 360.02. Specifically, magistrates may award costs and fees as a sanction for bad-faith motions. See, e.g., Minn. R. Gen. Pract. 367.05, subd. 4 (noncompliance with discovery order); Minn. R. Gen. Pract. 371.04, subd. 6 (bad-faith motions to correct clerical mistakes); Minn. R. Gen. Pract. 372.05, subd. 7 (bad-faith motions for review). Appellant argues that, because the rules specifically provide for sanction-based fee awards, the supreme court must have excluded a magistrate’s authority to award need-based attorney fees. But this argument takes too little regard for the concept of “necessary” determinations, which is adopted in rule 360.02. And appellant does not explain why a magistrate should have less authority in awarding fees than a trial court confronted by a child support modification petition of an indigent party. See, e.g., Brazinsky v. Brazinsky, 610 N.W.2d 707, 710 (Minn.App.2000) (stating that the authority of a child support magistrate in establishing, modifying, and enforcing child support in the expedited child support process is the same authority a trial court has with respect to child support outside the process); Lappi v. Lappi, 294 N.W.2d 312, 316 (Minn.1980) (“The trial court has broad discretion in awarding attorneys fees to ensure that a party can protect his or her rights and interests.”) (citation omitted). Moreover, the trial court has the power to grant need-based attorney fees, and it implicitly granted the fee award by affirming the magistrate’s order.

Appellant also argues that the court did not make specific findings to justify an attorney-fee award. But a court does not always need to make separate findings to award attorney fees based on need. See, e.g., Gully v. Gully, 599 N.W.2d 814, 820, 825-26 (Minn.1999) (stating that under section 518.64 an award of attorney fees rests almost entirely within the court’s discretion and a fee award is proper if the court reasonably finds need of one party and ability to pay by the other). Here, the magistrate found that (1) respondent had no net monthly income from her self-employment; (2) respondent was unemployed for purposes of assigning the income-tax deduction for their children; (3) respondent did not have the ability to pay all of her attorney fees and costs; and (4) appellant did have the ability to pay respondent’s fees and costs.

4.

Respondent argues that the magistrate erred in requiring that she earn at least $1,500 per month for nine months in order to claim a tax-dependency exemption. She contends that the stipulated judgment does not establish any “minimum” income prerequisite when it provides, “[i]n the event [respondent] becomes employed, [respondent] is entitled to claim the minor child ⅜ * * on her tax returns every year * * ⅜.” She asserts that neither the parties’ stipulation nor the relevant statute mandates a threshold for “employment” before she becomes eligible to receive the tax exemption. See Minn.Stat. § 518.551, subd. 5(b)(f) (2000) (defining self-employment income). And she points to her 1995 tax year, when she reported only $200 of yearly income and yet was permitted to declare one child as a deduction. Moreover, respondent claims that appellant has not proved his need for three tax exemptions and that the court had to make best-interest findings before awarding appellant all three exemptions.

The allocation of federal-tax exemptions is within the trial court’s discretion. Crosby, 587 N.W.2d at 298. A court may amend a child support order when there has been a substantial change of circumstances. Minn.Stat. § 518.64, subd. 1 (2000). In addition,

Interpretation of a divorce decree that is ambiguous or uncertain on its face and, because of its language, is of doubtful meaning or open to diverse constructions, may be clarified by the tribunal that ordered it.

Mikoda v. Mikoda, 413 N.W.2d 238, 241 (Minn.App.1987) (citations omitted). And “[o]n appeal, the trial court’s construction of its own decree has great weight.” Palmi v. Palmi, 273 Minn. 97, 104, 140 N.W.2d 77, 82 (1966). The language of the 1995 order lacks clarity and fails to define either the kind of employment or the minimum earnings that would qualify respondent for the exemption. Although she argues that the magistrate’s $1,500 requirement amounts to a modification of the stipulated judgment, the magistrate merely interpreted and clarified the trial court’s prior order. The same trial court that ordered the decree subsequently ratified the magistrate’s interpretation of it. Nothing in the records suggests that the magistrate abused its discretion in determining that respondent’s “employment” does not qualify her for the tax exemption without the occurrence of a minimum level of earnings.

Respondent also disputes the magistrate’s specific income-threshold requirement, but this determination was well within the magistrate’s discretion. See id. (explaining that a court may interpret its prior decree). It is true that in 1995, respondent made only $200 and yet was permitted to claim an exemption. But it is also true that respondent worked as a registered nurse and that the exemption award would often accompany the receipt of taxable income. It is evident that the magistrate’s income-threshold requirement is based on respondent’s work experience and that nothing in the judgment states that respondent’s current husband’s income may be considered.

Respondent also appeals what she views as the magistrate’s sua sponte action in determining her eligibility for an exemption claim. But the magistrate dealt with a specific motion of the kind when appellant moved for clarification of respondent’s entitlement to the exemption. Similarly, respondent raised the exemption issue herself by asking the magistrate to award her permanently one exemption every year and another one during alternate years.

Appellant questions whether self-employment income, as opposed to wages, constitutes income for purposes of the stipulated judgment. He suggests that all of respondent’s income should be disregarded because it is not derived from actual wages. The magistrate did not abuse judicial discretion by interpreting income as taxable income, which is a reasonable income concept.

Finally, appellant argues that if the $1,500 threshold is appropriate, he is entitled to retroactive use of the exemptions from 1998 through 2000. Conceding that the change might be difficult to implement for prior tax years, appellant suggests altering the future award to recoup past exemptions. But the magistrate, in rejecting retroactive application, was exercising discretion just as it did in setting respondent’s $1,500 threshold. It is not evident that the magistrate erred by putting the parties on a clearer footing for the future.

DECISION

The evidence supports the magistrate’s calculation that appellant’s net monthly income is $5,724.42. Thus, under the statutory guidelines, appellant’s monthly support obligation is 35% of that amount, or $2,004, as the magistrate found. The magistrate also did not err in abandoning the 25% reduction based on increased summer visitation, as increased parenting time does not determine a noncustodial parent’s support obligation. Moreover, there was no abuse of discretion in the award of need-based attorney fees. Finally, it was not error to construe the divorce judgment as awarding to respondent a tax-dependency exemption only when she earns $1,500 per month.

Affirmed.

      . Although the exhibit presented to the magistrate shows at one point gross monthly wages of $8,846.17, which appellant believes is erroneously calculated, it is clear that the determinative gross monthly income figure employed in subsequent calculations was $9,426.67. Significantly, the evidence also justifies using $8,846.17 as the determinative gross monthly salary, a sum that is one-third of the $26,538.50 earnings to date shown on the pay stub.

      . The pay stub shows a payroll year that began on December 24, 2000, a fact that may bear on the to-date reports on the stub, but the magistrate was given no evidence to indicate that this consideration was significant.

      .Appellant introduced another pay stub for the pay period later in April 2001, but nothing on the face of this stub contradicts the weight of the evidence shown by the pay stub ending March 31, 2001. Appellant contends that respondent concedes that his gross monthly income is $8,315.07, but this concession was in response to appellant’s 2000 income and did not contradict the magistrate’s calculation for 2001 income.

      . A 20% increase over the $1,521 that would have been appellant's monthly obligation absent the petition to modify is $1,825.20 per month.

      . Respondent contends that appellant did not raise this issue below and thus cannot raise it on appeal. But the issue of whether a court has subject-matter jurisdiction may be raised at anytime. Marzitelli v. City of Little Canada, 582 N.W.2d 904, 907 (Minn.1998).

      . Under Minn.Stat. § 518.14, subd. 1 (2000), the court shall award attorney fees, costs, and disbursements to enable a party to bring a child support action, if it finds (1) that the fees are necessary for the good-faith assertion of a party's rights and will not add to the length and expense of the proceeding; (2) that the other party has the means to pay; and (3) that the needy party does not have the means to pay them.