This opinion will be unpublished and

may not be cited except as provided by

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






Debra Kay Rockney, petitioner,





Gary Richard Rockney,



Filed May 30, 2000

Reversed and remanded; motion denied

Shumaker, Judge


Carver County District Court

File No. F6-93-1857


Michael L. Perlman, Perlman Law Office, 333 Parkdale Plaza, 1660 South Highway 100, St. Louis Park, MN 55416 (for appellant)


Daniel B. Johnson, Daniel B. Johnson & Associates, P.A., 226 East Myrtle Street, Stillwater, MN 55082-5002 (for respondent)


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

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court’s denial of her motions to increase spousal maintenance and to make the award of temporary maintenance permanent.  She contends that the court erroneously penalized her for maintaining the employment she held during the marriage and failed to make adequate findings.  We reverse and remand.


Appellant-wife Debra Kay Rockney and respondent-husband Gary Richard Rockney divorced after a marriage of 17 years.  Although wife had a college degree, the parties agreed that she would be a homemaker and would stay at home with the children while husband worked to provide financial support for the family.  About five years after the parties married, wife started a horse-boarding business at the homestead.

When the parties divorced in 1995, husband was earning $71,200 annually as a salesman and wife was receiving monthly net income of $1,000 from the horse-boarding business.  The district court awarded the homestead and the horse-boarding business to wife and found that she qualified for an award of spousal maintenance as well:

[Wife] does not have any financial resources other than income earned by Luce Line Stables and payments from [husband] for support of the minor children.  Moreover, [wife] is 41 years of age, has no health or retirement benefits and there is uncertainty about the future of her health.  [Wife] lacks sufficient income or property to provide for her reasonable and necessary needs, therefore it is appropriate that [wife] receive an award of spousal maintenance.


[Husband] is in good health, has a retirement plan, and his job enables him to contribute to the financial needs of [wife].  Therefore, [wife] is awarded and [husband] shall pay to her the sum of $500 per month, to continue for five years from the date of this decree, until the death of either party, the remarriage of [wife], or further order of the court, subject to cost-of-living increases pursuant to Minn. Stat. § 518.641. The permanency of this award shall be reviewed five years from the date of this judgment and decree.




From 1995 to 1999 the gross income of wife’s horse-boarding business increased but her net monthly profit remained at approximately $1,000.  During those years, she concentrated on operating the business and did not seek other jobs or training.

Wife moved to increase and to make the spousal maintenance permanent in 1999.  The district court denied wife’s motion to increase the amount of maintenance and instead reduced it to zero because the court found that the wife had the

ability to run a business for the past 15 years; her college degree; her lack of documented health issues that disable her from working; the appreciation of the property her business and home are situated on; and the previous five years of maintenance which provided an opportunity for her to gain training/employment that would meet her current financial needs.


The court also found that “the record shows no attempt by [wife] to increase the income from the business” and “[wife] has made a choice to continue this [horse-boarding] business, even though it clearly can never be expected to support her.”  The court did not make any findings as to wife’s need for maintenance, the reasonableness of her expenses, the reasonableness of husband’s expenses, or husband’s ability to pay maintenance.

The court did not grant or deny wife’s motion for permanent maintenance but ruled that, because of wife’s health problems, her “right to seek permanent maintenance shall not terminate in April 2000, but shall continue for an additional five years until April 2005.”

Contending that the district court abused its discretion in both rulings, wife brings this appeal.

The original dissolution judgment permitted wife to continue to operate the horse-boarding business, acknowledged that the income from that business would be inadequate to support her, and awarded spousal maintenance to her.  The court did not require her to seek other employment or to rehabilitate herself to become self-supporting.  In denying wife’s 1999 motion to increase maintenance, the court implicitly concluded that wife was purposely underemployed.


I.          Increase of Spousal Maintenance

A court may not properly find bad-faith underemployment where a homemaker has continued to work in the same job she held during the marriage and there is no evidence that she has reduced her income to obtain spousal maintenance.  See Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997) (holding district court’s assessment of wife’s employability is punitive when applied retroactively to a traditional homemaker with a part-time work history); see also Maurer v. Maurer, 607 N.W.2d 176, 181 (Minn. App. 2000) (holding district court cannot find bad-faith where a homemaker continues to do same job she did during marriage and there is no evidence of deliberate attempt to limit income so as to obtain maintenance).  The district court abused its discretion by reducing wife’s maintenance to zero.

Although the court in 1999 made findings as to the 1994 value of wife’s property and the amount of her equity, it made no findings as to her need for maintenance, the amount and reasonableness of her current expenses, or the reasonableness of husband’s expenses.  The district court must make sufficiently detailed findings to demonstrate that it has considered all factors relevant to a maintenance award.  Stitch v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  Husband does not affirmatively dispute wife’s need for additional income to support her and the record demonstrates that he has some ability to pay maintenance.  The district court erred by failing to make the requisite findings of fact.  The matter must be remanded for findings.

II.        Award of Permanent Maintenance

            Wife claims that the district court erred by declining to award her permanent maintenance.  The district court stated:

1.         [Wife’s] motion is denied in its entirety and maintenance shall terminate in April 2000, pursuant to the terms of Judge Hopper’s Order of April 5, 1995.


2.         That [wife’s] right to seek permanent maintenance shall not terminate in April 2000, but shall continue for an additional five years until April 2005.


The district court has reserved the issue of permanent maintenance until 2005.  Wife’s appeal is premature, and, therefore, not reviewable by this court.  See Servin v. Servin, 345 N.W.2d 754 (Minn. 1984) (holding that an appeal from district court’s alleged failure to award permanent spousal maintenance was premature, where district court awarded maintenance for a period of time and then specifically reserved the right to review spousal maintenance in the future).

III.       Attorney Fees on Appeal

Wife moves for attorney fees on appeal.  However, this request was made only in wife’s brief and not by separate motion.  Rule 139.06 of the rules of civil appellate procedure provides that a party seeking attorney fees on appeal shall submit such a request by motion.  Because wife has failed to comply with Rule 139.06, wife’s motion for fees is denied.

Reversed and remanded; motion denied.