This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-99-1446

 

In re the Marriage of:

Susan Blanche Meyer, petitioner,

Appellant,

 

vs.

 

Leo Joseph Meyer,

Respondent.

 

Filed May 2, 2000

Affirmed in part and reversed in part

Schumacher, Judge

 

Cottonwood County District Court

File No. F498318

 

 

Lachlan B. Muir, Lachlan B. Muir Law Office, 513 Second Street, Jackson, MN 56143 (for appellant)

 

Gary G. Wollschlager, Michael V. Tow, Wollschlager, Tow & Welder, P.A., 105 South State Street, Fairmount, MN 56031 (for respondent)

 

Considered and decided by Anderson, Presiding Judge, Schumacher, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

The parties appeal from the district court's judgment in a dissolution action. Appellant Susan Blanche Meyer (wife) challenges the adequacy of her spousal maintenance award, the denial of her request for attorney fees, and the award of $500 in bad faith attorney fees to respondent Leo Joseph Meyer (husband). Husband questions this court's jurisdiction and the award of permanent spousal maintenance. We conclude the record supports an award of $1,000 per month in spousal maintenance and the denial of need-based attorney fees but does not support an award of bad faith attorney fees. We affirm in part and reverse in part.

FACTS

The parties were married in 1977. Husband is an executive at Toro, Inc. and was the sole source of financial support for the family. Wife stayed at home with the parties' two children.

Husband and wife separated in 1998 and stipulated to child custody, child support, and the division of assets. Wife was given sole physical custody of the two children. Husband agreed to pay for the children's medical insurance, the oldest child's car insurance, and $1,500 per month in child support. He also agreed to pay for wife's tuition, books, and travel expenses so that she can complete a master's degree in public administration.

A hearing was held to resolve the issues of spousal maintenance, tax exemptions, and attorney fees. The court ordered husband to pay $1,000 per month in permanent spousal maintenance, awarded husband the tax exemptions applicable to the minor children, and required the parties to pay their own attorney fees. Wife moved for amended findings or a new trial. The court denied the motion and awarded husband $500 in bad faith attorney fees. Wife appeals, and husband filed a notice of review.

D E C I S I O N

 

1. As a preliminary matter, husband asserts that this court is without jurisdiction to hear this case because wife's posttrial motion for amended findings or a new trial was not proper. The adverse party must file an appeal involving dissolution proceedings within 60 days after receiving written notice of the filing of the judgment. Minn. R. Civ. App. P. 104.01, subd. 1. But the appeal time may be extended if certain "proper and timely" motions, including motions for amended findings and a new trial are pending. Id., subd. 2.

A motion for a new trial must state the basis for the new trial under Minn. R. Civ. P. 59.01 and identify specific errors to preserve issues for appellate review. Stockdale Bancorporation v. Kjellberg, 479 N.W.2d 438, 439 (Minn. App. 1992). A new trial may be granted when the decision is not justified by the evidence or is contrary to the law. See Minn. R. Civ. P. 59.01(g). Wife's motion for a new trial was proper because it was made on the grounds that the decision was not justified by evidence or was contrary to law.

A motion for amended findings must explicitly identify the alleged defects, explain why the challenged findings are defective, and explain the propriety of the proposed findings. Lewis v. Lewis, 572 N.W.2d 313, 315 (Minn. App. 1997), review denied (Minn. Feb. 19, 1998). The moving party should address the record evidence when claiming that the record does not support the district court findings. Id. at 316. Although in a limited fashion, wife does specifically allege defects in the district court's findings of fact and does address specific evidence in the record.

Although unsuccessful, wife's motion was "proper." Therefore, the time for appeal was extended and this court has jurisdiction.

2. Both parties challenge the district court's award of maintenance. Husband argues that the district court erred in awarding permanent rather than temporary maintenance, and wife challenges the amount of the award, $1000 per month. The district court is given broad discretion to determine the amount and duration of spousal maintenance. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will not disturb the district court's maintenance award if it has a "reasonable and acceptable basis in fact and principle." DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983) (citation omitted).

Husband argues that the district court's findings do not support an award of permanent maintenance. The district court held that it was uncertain when, if ever, wife would become fully self-supporting. Husband argues that the district court erred in making a finding of "certainty" and not "likelihood" of self-sufficiency.

Husband is incorrect. When there is "uncertainty" as to the necessity of a permanent award, the court shall award permanent maintenance, leaving the award open for later modification. See Minn. Stat. 518.552, subd. 3 (1998); Minn. Stat  645.44, subd. 16 (1998) (stating "'[s]hall' is mandatory"). Here, the district court found that it is unclear if wife will be successful in her career even though she is educated. This finding is supported by the record. Wife is a 44-year-old woman who has not worked except for a few years in low-level clerical positions. Further, the district court found that there was no credible evidence that suitable public administration positions were or would be available in the Windom area. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating appellate courts defer to district court credibility determinations). It is uncertain whether wife will become self-sufficient. In light of the great discretion that district courts are given in awarding maintenance, the district court's explicit findings, and the statutory presumption in favor of permanent maintenance, the district court did not abuse its discretion in granting permanent maintenance.

In addition to the duration of the maintenance award, the amount of maintenance is also in dispute. Wife argues that the district court's award of $1,000 per month in maintenance is insufficient to maintain her pre-dissolution standard of living. Wife relies on Flynn v. Flynn in support of her request for $4,000 in monthly spousal maintenance. 402 N.W.2d 111 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). In Flynn, the husband had a net income of close to $125,000 and the parties enjoyed a high standard of living as they do in this case, but the court in Flynn awarded the wife $4,500 per month in maintenance. 402 N.W.2d at 113-16. Although the facts in Flynn are similar to the facts in this case, there is one important difference. In Flynn, the wife established monthly living expenses of approximately $6,000 for herself and two children; she had income of $1,800 in child support leaving her with a monthly deficit of more than $4,000. Id. There was no such finding in this case.

Wife submitted a monthly budget of $3,003, but the district court reduced her monthly expenses to $2,133, adjusting for debt that husband was assuming and a food allowance that the court determined was inflated. The record does not support a determination that these findings were clearly erroneous. In addition, the court found that wife has income of $1,500 in child support and $150 in investment income. Accordingly wife's deficit is less than $500 per month. Maintenance is awarded to meet a party's need; therefore the level of maintenance depends on a showing of need. Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1987). Although the district court's award of $1,000 per month in spousal maintenance may seem conservative in light of the parties' pre-dissolution lifestyle, the courts are constrained by the parties' reasonable living expenses. The district court's resolution of the financial disparity is reasonable based on the expenses presented to the court.

3. Wife also argues that the district court abused its discretion in denying her request for need-based attorney fees under Minn. Stat.  518.14, subd. 1 (1998). The district court's discretion in awarding attorney fees is so broad that a reviewing court rarely will reverse the district court's determination. Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990). When there is an award of permanent maintenance and income of the parties is evenly balanced after the division of the marital property, the district court's denial of attorney fees is not an abuse of discretion. Id.

Here, both the factors in Reinke are present. The parties evenly divided all marital assets and the court awarded permanent maintenance. The district court did not abuse its discretion in denying wife's request for attorney fees.

4. Finally, wife challenges the district court's award of $500 in bad faith attorney fees. A court may award attorney fees against a party who "unreasonably contributes to the length or expense of the proceeding." Minn. Stat. 518.14, subd. 1. The district court ruled that wife's posttrial motion for amended findings or a new trial was not meritorious. The court reasoned that wife had unreasonably contributed to the length and expense of the proceedings by bringing the motion.

The district court found that wife's motion was without merit. Although wife's posttrial motion arguments were ultimately unsuccessful, there is no evidence to support a finding that the motion was made in bad faith. An argument, although unsuccessful, does not necessarily warrant an award of attorney fees, so long as it was made in good faith and was otherwise reasonable. Walker v. Walker, 553 N.W.2d 90, 97 (Minn. App. 1996). Although the court is within its discretion to deny the motion, the district abused its discretion in awarding husband $500 in bad faith attorney fees. We reverse the award of attorney fees.

Affirmed in part and reversed in part.