This opinion will be unpublished and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

C7-00-971

 

Heidi J. Bauman, petitioner,

Respondent,

 

vs.

 

David A. Bauman,

Appellant.

 

Filed January 9, 2001

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. DC 84 248

 

 

Denis E. Grande, Mackall, Crounse & Moore, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN  55402 (for respondent)

 

Ellen Dresselhuis, Dresselhuis Law Office, P.A., 2738 Winnetka Avenue North, New Hope, MN  55427-2850 (for appellant)

 

            Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from the denial of his motion to terminate his maintenance obligation, appellant alleges (a) the district court allowed his maintenance obligation to become permanent despite the lack of an exceptional case under Gales v. Gales, 553 N.W.2d 416 (Minn. 1996); (b) because of this court's 1996 decision in Walker v. Walker, 553 N.W.2d 90 (Minn. App. 1996), the district court was not precluded from reviewing its 1993 decision making appellant's maintenance obligation permanent; and (c) imputation of income to appellant is not required by Walker.  We affirm.

FACTS

                In 1982, the district court dissolved appellant David A. Bauman and respondent Heidi J. Bauman's marriage.  The district court ordered appellant to pay monthly child support of $500 for the parties' six minor children of whom respondent was given physical custody.  The court also ordered appellant to pay respondent $2,500 a month in spousal maintenance.  Neither party appealed from the dissolution judgment.

            In 1992, appellant moved to terminate his maintenance obligation on or before the date that the parties' youngest child turned 18 years old in 1995.  In its 1993 order, the district court ordered a "stepwise reduction" in the maintenance award, reducing maintenance in 1994 and 1995 and setting maintenance at "a permanent level of $500 on July 1, 1996."  Respondent appealed from this order, and this court affirmed.  Bauman v. Bauman, No. C1-93-718, 1993 WL 302125 (Minn. App. Aug. 10, 1993), review denied (Minn. Oct. 7, 1993).  Appellant did not file a notice of review.

            In December 1999, appellant again moved to terminate his maintenance obligation.  In its April 2000 order, the district court refused to "revisit" the permanence of the maintenance award but instead reviewed respondent's motion under Minn. Stat. § 518.64 (1998 & Supp. 1999).  The court concluded that there had been no change in circumstances warranting a modification of maintenance and denied appellant's motion to terminate maintenance.        

D E C I S I O N

            A decision not to modify a maintenance award is within the district court's discretion and will not be reversed absent an abuse of that discretion.  Cisek v. Cisek, 409 N.W.2d 233, 235 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).  A party seeking modification has the burden to demonstrate (a) there has been a substantial change in statutorily identified circumstances and (b) the substantial change rendered the original award unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  Here, appellant is not actually challenging the district court's determination that he did not demonstrate a substantial change in circumstances.  Instead, he challenges the district court's refusal to review the duration of the maintenance award and asserts the district court improperly included a portion of his pension in his income.


I.

            Appellant first asserts that the district court abused its discretion by allowing the temporary maintenance award to become permanent.  He contends that Gales v. Gales, 553 N.W.2d 416 (Minn. 1996), bars a permanent award in this case because this is not an exceptional case involving a long-term marriage and an older, dependent spouse.  Essentially, appellant's argument is an untimely attack on the district court's 1993 determination that set maintenance at a permanent level of $500 per month.

            Although we understand appellant's argument that permanent maintenance is unfair in this case based on the length of the parties' marriage and respondent's age, Gales does not preclude permanent maintenance in this case.  As the supreme court stated in Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997), "Gales did not change the law, but instead applied the criteria of Minn. Stat. § 518.552, subd. 2 to the record."  See Chamberlain v. Chamberlain, 615 N.W.2d 405, 410-11 (Minn. App. 2000) (reviewing history of permanent maintenance and stating "Dobrin dispels any suggestion that Gales resurrected [the] 'exceptional-case' standard for awarding permanent maintenance"), review denied (Minn. October 26, 2000).[1]

             Additionally, appellant's challenge to the duration of the maintenance award is hampered by his failure to challenge it at an earlier date.  Although the dissolution judgment did not state that the maintenance award was permanent, this award was functionally a permanent award because the district court did not list a termination date.  See Gales, 553 N.W.2d at 421 (recognizing where district court failed to designate when payments would end, court effectively awarded permanent maintenance).  Regardless of whether the original award was "permanent," in its 1993 modification order the district court specifically stated that after a stepwise reduction, maintenance would be set at a "permanent level" of $500 a month.  Appellant did not appeal this decision.  Back then, Bauman's spouse appealed, evidencing unhappiness with our decision.  Bauman did not file a notice of review, and did not cross-appeal.  We affirmed the decision of the district court, making it difficult for Bauman to now argue to this court that it was unfair.   Bauman v. Bauman, No. C1-93-718, 1993 WL 302125, *1 (Minn. App. Aug. 10, 1993) (stating "[t]he issue of the duration of maintenance is not before us because respondent did not seek review of the trial court's decision" (citation omitted)), review denied (Minn. Oct. 7, 1993).  Thus, appellant cannot now challenge the permanency of the award in this appeal from the 2000 order.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating after appeal deadline expires, unappealed ruling is final even if incorrect).

II.

            Appellant seems to challenge the April 2000 order's reliance on Walker v. Walker, 553 N.W.2d 90 (Minn. App. 1996).  Appellant alleges Walker, which was issued after the 1993 order creating his current maintenance obligation, is factually distinguishable from his case and that Kruschel v. Kruschel, 419 N.W.2d 119 (Minn. App. 1988), was the governing case at the time of the 1993 order.

            Neither Walker nor Kruschel involved a challenge to the permanency of a maintenance award.  Both Walker and Kruschel involved the use of pension benefits to pay maintenance, but each case addressed distinctly different situations.  In Kruschel, this court held that a party awarded his pension pursuant to the property division in the parties' dissolution could not be ordered to pay maintenance out of pension benefits "until he [had] received from the pension an amount equivalent to its value as determined in the original property distribution."  419 N.W.2d at 123.  In Walker, this court noted that rather than the district court determining the value of the pension fund at the time of the dissolution as in Kruschel, the parties stipulated to an annual amount of anticipated pension benefits.  Walker, 553 N.W.2d at 94.  This court concluded:

Where * * * the parties have stipulated at the time of dissolution to a valuation representing an amount of pension benefits anticipated per year, the district court may consider annual benefits that the obligor receives in excess of his allocated property interest in that amount as "income" when modifying his maintenance obligation.

 

Id.

            Here, the district court found that appellant is currently receiving $102,500 gross annual income from his pension fund, which equates to a monthly net income of $7,134.79.  The district court further found that, when awarded to appellant in the original judgment, this pension was valued at $22,000 and would have garnered a net monthly income of $1,500.  The district court then determined that under Walker, $5,634.79 was available to appellant each month for paying maintenance.

            Here, as in Kruschel, the original judgment awarded appellant his full pension plan, the value of which was then $22,559.59.  Under Kruschel, after appellant received the benefits attributable to the $22,559.59 in the pension when it was awarded to appellant, all benefits received beyond that amount could be considered income.  When calculating appellant's income, however, the district court did not exclude the entirety of each pension payment appellant received before receiving total payments equaling the amount which would have been generated by the $22,559.59 in the pension when it was awarded to appellant.  Instead, the district court found that the $22,559.59 in the pension when it was awarded to appellant would have generated a $1,500 monthly pension payment and excluded that portion of each payment in finding appellant's income.  Because that calculation of the $1,500 amount is unchallenged, any error in applying Walker rather than Kruschel did not harm appellant.  See Minn. R. Civ. P. 61 (stating court must disregard harmless error).


III.

            Appellant next argues that Walker does not mandate imputing income to appellant from his property award because, here, the parties' marriage lasted only 14 years and respondent was 34 years old at the time of the dissolution while Walker involved a 30-year marriage in which the obligee was 60 years old at the time of this court's decision. 

            Although Walker's relevance to this issue is not clear, it appears appellant is again attempting to assert that this is not an "exceptional case" because the parties did not have a lengthy marriage and respondent was young when the parties divorced.  We understand appellant's argument, but we have already addressed it in this opinion and we have already ruled that the decision of the district court can be affirmed.

            Appellant also asserts that in 1993 it was "reasonable to assume" that when he retired his spousal maintenance could be terminated.  He seems to be again arguing that Walker changed the law and that because Walker was decided in 1996, it was too late for him to then appeal from the 1993 order.  As discussed above, Walker did not change the law.  Further, Walker did not have any effect on appellant's ability to challenge the 1993 order directing him to pay permanent maintenance.  Finally, entry of the 1993 order still does not bar appellant from moving to modify the maintenance award based on a substantial change in circumstances.  The district court determined in its 2000 order that appellant did not demonstrate a substantial change in circumstances.  Appellant does not challenge that conclusion on appeal, and, therefore, we will not review it.       

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] We note that appellant filed her brief in this matter before this court released the Chamberlain opinion.