This opinion will be unpublished and

may not be cited except as provided by

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







John Michael Heino, petitioner,


Shirley Ann Heino,


Filed July 18, 2000


Amundson, Judge


Hennepin County District Court

File No. DC98482



David Middlecamp, Middlecamp & Lebow P.A., 527 Marquette Avenue South, 1800 Rand Tower, Minneapolis, MN 55402 (for appellant)

Shirley Heino, P.O. Box 202003, Bloomington, MN 55420 (respondent pro se)


            Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


            After retiring, appellant former husband moved to terminate or reduce his maintenance obligation.  The referee initially continued the proceeding and then issued an order (later affirmed in its entirety by the district court) denying appellant’s motion.  Appellant alleges that the district court (a) erred in finding that his interest in a pension was an appropriate source from which he could pay maintenance; (b) abused its discretion by initially continuing his motion; (c) abused its discretion in selecting the date upon which appellant’s maintenance obligation should be suspended; (d) erred when it refused to exclude certain assets from the pool of funds from which appellant could be ordered to pay maintenance; and (e) abused its discretion in awarding respondent attorney fees, allowing her to retain maintenance payments received during the pendency of his motion, and by refusing to terminate his spousal maintenance obligation.  Because respondent did not file a brief, this appeal is proceeding pursuant to Minn. R. Civ. App. P. 142.03.  We affirm.


           Appellant John Michael Heino and respondent Shirley Ann Heino dissolved their 23-year marriage in 1983.  During the marriage, respondent was a traditional homemaker, raising the parties’ six children.  Appellant was a manager for Coast to Coast Hardware.

              In the dissolution judgment, appellant was awarded (a) his stock appreciation plan, free and clear of any interest attributable to respondent and valued in 1983 at $13,714; (b) his thrift and savings plan, valued at $1,358.90, with an $8,140 credit for withdrawals from the plan; (c) all interest in his Coast to Coast profit sharing plan, valued at $67,455.47; and (d) one-half of the marital interest in each and every retirement payment receivable from the Coast to Coast pension plan, if and when the pension became payable.

           Respondent was awarded (a) the parties’ homestead, with a net value of $47,438; (b) an account at First Interstate Bank of Oregon, valued at $20,000; (c) one-half of the marital interest in each and every retirement payment receivable from the Coast to Coast pension plan, if and when the pension became payable; and (d) a balancing payment of $3,100.  She was also awarded temporary maintenance for five years—$1,200 per month for the first two years, and $1,000 per month for the remaining three years.

            Coast to Coast terminated its pension plan on March 31, 1988.  The total amount paid to the parties was $26,682; respondent received $11,448 as her half of the marital share, and appellant received $15,234.  With his payment, appellant purchased an annuity.

            In 1988, respondent requested continued spousal maintenance.  Pursuant to the parties’ stipulation, the district court ordered permanent spousal maintenance in the amount of $1,350 per month.  Cost-of-living increases raised the amount to $1,659.52 per month as of December 1998.

           Appellant retired December 31, 1998, at age 60, for stress-related health reasons.  In January 1999, he filed a motion to modify or terminate his spousal maintenance obligation because he would be living on the money in his 401(k) account, a combination of the assets he was awarded in the dissolution, the increase in value of those assets, and the post-dissolution contributions he made to the account.  Based on the parties’ affidavits and memoranda, the referee found that the information he had submitted was insufficient to support his motion.  The referee continued the hearing and ordered him to submit further information and to pay respondent’s attorney fees.  Following the continued hearing, the referee, as of March 1, 1999, reserved appellant’s spousal maintenance obligation until he received $82,528.88 from his 401(k) account.  The referee’s order permitted respondent to retain maintenance that she received after March 1, 1999.  The order also required appellant to pay respondent’s attorney fees incurred during discovery and at the continued hearing.

           Appellant sought review of the referee’s findings and order.  The district court affirmed the referee’s order in its entirety.  This appeal followed.


Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.  The findings of a referee, to the extent adopted by the court, shall be considered as the findings of the court.


Minn. R. Civ. P. 52.01.  “Findings of fact are considered clearly erroneous only if they are not reasonably supported by the evidence.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999).  But this court is not bound by and need not give deference to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).

I.  Coast to Coast Pension

           Appellant argues that the district court clearly erred by finding that, in the 1983 dissolution judgment, the Coast to Coast pension was to be equally divided between the parties, less $4,800 of post-dissolution benefit.  Appellant offers that because the parties’ judgment awarded the whole value of the pension as property, there was no post-dissolution value to be considered as income, and therefore, none of the money he receives from his annuity is available to pay spousal maintenance.

            A court may not order an obligor to pay spousal maintenance out of his pension payment “until he has received from the pension an amount equivalent to its value as determined in the original property distribution.” Kruschel v. Kruschel, 419 N.W.2d 119, 123 (Minn. App. 1988).  After the obligor has received that amount, a court may properly consider the obligor’s pension payments in determining the amount of future spousal maintenance payments.  Id.  The post-dissolution increase in value of a pension is not protected from consideration in setting a spousal maintenance obligation. Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991).

            This analysis applies to the annuity appellant purchased with his share of the payout from his Coast to Coast pension fund.  Therefore, the district court did not err in finding that only the portion of the annuity that is attributable to the marital portion of the pension awarded to appellant at the time of the dissolution is excluded from consideration in setting any future spousal maintenance obligation.

II.  Continuance

           Appellant alleges that the district court erred by finding that he did not provide sufficient evidence to allow the court to decide his motion at the first hearing.  Whether to grant a continuance is a matter within the discretion of the district court and its ruling will not be reversed absent an abuse of discretion.  Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977).

            The district court found that appellant had not provided any evidence of the value of his assets, including assets from which he might draw income, nor had he provided any evidence of the date he established his 401(k) plan, or any documentation reflecting his post-dissolution contributions to the plan.  Therefore, the district court found that it was unable to determine the extent of appellant’s financial resources, what items should be excluded in calculating spousal maintenance, or whether a substantial change in circumstances had occurred that made the current spousal maintenance unfair and unreasonable.  In fact, even appellant admits that a clearer picture of his finances emerged after discovery.  Therefore, the district court did not abuse its discretion in granting a continuance and requiring appellant to supply additional affidavit evidence and documentation to support his motion.

III.  Award of Attorney Fees

           Appellant argues that the district court abused its discretion by awarding attorney fees to respondent.  He contends that the district court ignored the clear evidence that she has income and assets sufficient to enable her to pay her own attorney.

            On review, this court will not reverse an award of attorney fees absent an abuse of discretion.  Pfleiderer v. Pfleiderer, 591 N.W.2d 729, 733 (Minn. App. 1999).

            In a marriage dissolution, a

court shall award attorney fees * * * in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:


(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;


(2) that the party from whom fees, * * * are sought has the means to pay them; and


(3) that the party to whom fees, * * * are awarded does not have the means to pay them.


Minn. Stat. § 518.14, subd. 1 (1998).  The statute also provides the court with the discretion to award fees against a party “who unreasonably contributes to the length or expense of the proceeding.”  Id.

            The district court found that respondent did not have the financial resources to meet her needs and also pay attorney fees, but nevertheless, needed the ability to assert her rights in good faith.  Furthermore, the court found that appellant had the capacity to contribute to respondent’s attorney fees because, before retirement, he earned in excess of $100,000 annually, and “by his own admission, had the ability to acquire assets now available for his support.”  Furthermore, respondent’s attorney appeared at a hearing that could not resolve the matter because of appellant’s failure to submit necessary evidence. The record amply supports the district court’s decision.  Particularly in light of the ordered suspension of spousal maintenance payments that further reduced respondent’s income, the district court did not abuse its discretion in ordering appellant to pay respondent’s attorney fees.

IV.  Retention of Spousal Maintenance Payments

           Appellant contends that the district court abused its discretion by allowing his former wife to retain the spousal maintenance she received during the pendency of his motion.  But a court has discretion to set the effective date of a maintenance modification. Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997).  The district court permitted the retention because appellant had initiated the proceedings and failed to provide the necessary evidence at the time his motion was originally scheduled to be heard.  On these facts, the district court’s refusal to make the suspension of maintenance retroactive does not constitute an abuse of discretion.

           Appellant also asserts that the amount paid during the pendency of his motion is compelled because he continued to pay maintenance in “good faith.”  But his good faith argument fails because he was under court order to make the payments during this period.

V.  Date to Suspend Spousal Maintenance

           Appellant argues that the district court abused its discretion by selecting March 1, 1999, as the date to suspend spousal maintenance.  He suggests that the proper date for suspension was January 11, 1999, the date of service of his motion on respondent, because after his retirement on December 31, 1998, any spousal maintenance payments could only have come from his 401(k).  Therefore, he concludes, the ordered payment was an improper modification of the property awards.

            As noted above, the district court has discretion to set the effective date of a maintenance modification.  Id.  The district court’s decision was based on its finding that appellant continued to receive payroll checks through February 4, 1999. Accordingly, the district court did not abuse its discretion by choosing March 1, 1999, as the date to suspend maintenance payments.

VI.  Funds Available for Consideration in Determining Future Spousal Maintenance


           Appellant argues that the district court abused its discretion by refusing to exempt from consideration for future spousal maintenance the following assets:  (a) his share of the Coast to Coast pension; (b) the appreciated value of his profit sharing plan, stock appreciation, and thrift and savings plans; and (c) his post-dissolution contributions to his 401(k) plan.  He asserts that the increase in value of the assets awarded him in the judgment should be excluded as a source for the payment of spousal maintenance.

            “On appeal there must be a substantial and real controversy between the parties before a case will be considered by this court.” State ex rel. Bennett v. Brown, 216 Minn. 135, 138, 12 N.W.2d 180, 181 (1943).  Appellant’s concerns are premature; the district court made no specific finding that his assets and any increase in value since the dissolution would be considered in setting a possible future maintenance obligation, but merely listed his current assets.  Therefore, this issue is not properly before the court.

VII.  Failure to Terminate Spousal Maintenance

           Appellant challenges the district court’s refusal to terminate his spousal maintenance obligation because he has only the funds in his 401(k) available to pay his future living expenses, and arguing that, because he did not retire in bad faith, respondent has no right to an award of his property.

            The district court has the discretion to determine whether to modify spousal maintenance and will not be reversed absent a clear abuse of that discretion.  Abuzzahab v. Abuzzahab, 359 N.W.2d 329, 332 (Minn. App. 1984).  In determining the appropriate amount, if any, of spousal maintenance, the court examines the financial circumstances of both parties.  Minn. Stat. § 518.552, subd. 2 (1998).

            The district court reviewed the evidence presented and suspended appellant’s spousal maintenance payments until he has recouped the value of the assets he was awarded at the time of the dissolution in 1983.  The district court did not set the amount of his future spousal maintenance payments.  Therefore, we conclude that the district court did not abuse its discretion in ordering that appellant’s spousal maintenance obligation be suspended and reserved, rather than terminated.