This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






In Re the Marriage of:

Charlene R. Schwartz, petitioner,


Robert D. Schwartz,


Filed March 28, 2000

Affirmed in part, remanded in part

Crippen, Judge


Hennepin County District Court

File No. 184702


Sandra K. Kensy, Attorney at Law, Suite 200, 510 Marquette Avenue South, Minneapolis, MN 55402 (for respondent)


John R. Jesperson, Jesperson Law Office, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for appellant)


            Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant disputes the trial court’s decision denying his motion for a downward modification of his $4,500 per month maintenance award.  We remand to permit the trial court to address the financial circumstances of the parties since the date of appellant’s modification motion, April 1998, because (a) the record indicates that the court’s consideration was confined to the time period of April 1998 and earlier; (b) there is a resulting insufficiency of evidence to allow findings of fact on the circumstances of the parties since that date; and (c) there is a corresponding absence of significant findings of fact on this subject.  Except for the subject matter of the remand, there is no merit in appellant’s claims, and we affirm.



            The 1995 divorce judgment required appellant to pay respondent $4,500 in monthly maintenance after July 31, 1995.  The judgment also provided for the placement of the children of the parties, a support award in respondent’s favor, and a division of the marital and non-marital property, which totaled approximately $1.5 million.  One facet of the property division was altered by a decision of this court in April 1996 and the subsequent trial court decision on remand.

            In April 1998, appellant moved to reduce his maintenance obligation, contending that respondent now has an enlarged estate capable of producing revenue that gives her a greater capacity to support herself and that his ability to pay maintenance has decreased.  The trial court implicitly found that respondent’s investible assets were little different from when maintenance was ordered in 1995, and the court found that appellant’s ability to produce net income also had not changed.


1.         Events after April 1998

            Appellant acknowledges that the 1995 maintenance award anticipated income for respondent from investible assets in excess of $500,000, but he claims that there has been a substantial change in circumstances since the 1995 award.  This argument rests largely on his claim that respondent inherited property in 1998 and 1999 and profited from the January 1999 sale of her home.

            At the hearing, appellant’s counsel reported that the relevant time period for analysis of this motion is the time the motion was made, April 1998.  Asked by the trial court to confirm this statement, counsel acknowledged it.  The trial court did not consider the parties’ financial circumstances after this date in any depth.  This position of appellant and the trial court corresponds with Minn. Stat. § 518.64, subd. 2(c), which provides that in considering a motion to modify maintenance, the trial court shall apply those factors for an award of maintenance that exist “at the time of the motion.  Minn. Stat. § 518.64, subd. 2(c) (Supp. 1999). 

Appellant contends that in spite of the understanding as to the determinative time for considering the parties’ circumstances, the trial court received evidence concerning respondent’s receipt of an inheritance and the sale of her home.  Having examined the record, we find so little proof as to either of these events that it would not have been possible for the trial court to make definitive findings on the amount of investible assets that respondent obtained in 1998 and 1999 or the total sum of her investible assets after the occurrence of events in those years.  Consistent with this state of the record, the trial court made no findings that demonstrated respondent’s investible property after April 1998.

            These circumstances would permit this court to affirm the trial court’s holding and require that the circumstances of the parties after April 1998 be considered only in the event a new modification motion is made.  Because it is evident that respondent’s circumstances may have changed a great deal during 1998 and 1999, and the issue has been partially explored in the proceedings already pending, we remand so that the question of respondent’s current financial resources can be determined.[1]  On remand, the issue may be explored in the same fashion as though the court dealt with a currently reinstated modification motion.  We express no opinion on the ultimate determinations of whether respondent has experienced a substantial increase in her investible property since the 1995 maintenance award and whether the award should be modified.

2.         Circumstances in April 1998

            The trial court denied appellant’s motion to modify his maintenance obligation and found that respondent’s investible estate or income had not substantially increased.  See Minn. R. Civ. P. 52.01 (findings of fact not set aside on appeal unless they are clearly erroneous).  There is no merit to appellant’s contention that the record shows an increase in respondent’s estate as of April 1998.  Respondent’s tax returns do not indicate any significant increase in her income.  Additionally, as the trial court notes, in this long, acrimonious dispute between the parties, the resulting legal fees would alone absorb a large proportion of the investible assets awarded in the 1995 decree. 

            Because the trial court made numerous findings on respondent’s assets and income as well as appellant’s, there is no merit to appellant’s contention that the trial court erroneously refused to grant relief without first finding a substantial change in appellant’s own circumstances.

Appellant contends that the trial court erred in its determination of his current income, but he has shown no clear error in the trial court’s findings.  Noting that the trial court rejected the impact of evidence that his earnings have declined in recent years, appellant argues that the trial court should be compelled to address the question of whether he has unjustifiably self-limited his income.  In appellant’s words, “the mere fact of self-employment cannot, without more, be its own justification for the use of an earning capacity analysis.”  Appellant cites no authority for this proposition, and there is none.  When the court determines anticipated self-employment revenue, it must measure the self-employed person’s capacity to produce.  That was done here, and appellant has not articulated a claim that the trial court’s findings in that regard were clearly erroneous.

            Finally, appellant contends that the trial court erred in declining to hold an evidentiary hearing.  Appellant essentially waived this contention when he asserted to the trial court at the hearing on these motions that an evidentiary hearing was requested only if the court should “have a problem” about “what this record means.”  In oral argument on appeal, appellant’s counsel asserted that the case was uncomplicated and straightforward.  In any case, the decision of whether to hold an evidentiary hearing is within the trial court’s discretion.  See Minn. Stat. § 518.64, subd. 2(f); see also Christenson v. Christenson, 490 N.W.2d 447, 451 (Minn. App. 1992), review granted (Minn. Jan. 15, 1993), review dismissed (Minn. Feb. 16, 1993). A court need not conduct an evidentiary hearing on a motion to modify maintenance payments,  “where the facts are relatively uncomplicated and the evidence can be fairly and efficiently presented by affidavits and documentary evidence.”  Id. (quotation omitted).  There is no indication that the trial court abused its discretion in declining to hold an evidentiary hearing in this case.

3.         Child support arrearages

            In June 1996, the trial court ordered appellant to pay one-half of the parties’ minor child’s out-of-home school costs, but six months later the court ordered appellant to pay child support “as previously ordered.”  During 1997 and 1998, if appellant had paid child support as previously ordered, he would have paid $31,950 in child support.  The trial court subtracted from this sum the net amount appellant paid in the child’s school costs, his gross contribution less amounts that he withheld from respondent’s maintenance as a contribution for the costs.  The court concluded that appellant owed respondent $10,606 in child support arrearages.[2] 

Appellant contends that his child support obligation was satisfied as long as he paid half of the child’s school costs.  But, although appellant was ordered to pay both school costs and child support, he was never permitted to pay the lesser of the two.  Appellant points to the April 1997 order where the court explained its prior orders, suggesting that the order to pay “previously ordered” support was largely to channel the money for school costs and was not intended to “impose additional financial obligations” upon appellant.  Nothing in the December 1996 or April 1997 orders suggests that appellant’s obligation at any time would be less than the amount of child support originally ordered.  The trial court was within its discretion in its interpretation of the orders and its resulting order that appellant pay the amount of support less his costs for the out-of-home placement.

Affirmed in part, remanded in part.

[1] Because the record makes it evident that the parties have already incurred huge litigation expenses, requiring an equally large consumption of judicial resources, this court does not invite or even condone further contested proceedings.  But convictions favoring an end to the litigation have not served to enable our discovery of a lawful basis for announcing a final resolution of the dispute that produced this appeal.

[2] As respondent observes, the trial court’s calculation, were it not for a mathematical error, would have led to a finding of $11,883 arrearages.  Respondent did not file a notice of review on this issue and as such the accuracy of the calculation is not before this court.