This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-00-1180

 

 

In Re the Marriage of:

Cecilia G. Reichert, petitioner,

Respondent,

 

vs.

 

Joseph J. Reichert, Jr.,

Appellant.

 

 

Filed February 6, 2001

Affirmed

Halbrooks, Judge

 

Ramsey County District Court

File No. F390913

 

 

Suzanne M. Remington, Robert N. Schlesinger, P.A., 700 St. Paul Building, 6 West 5th Street, St. Paul, MN 55102 (for respondent)

 

J. Peter Wolf, Shelly D. Rohr, Wolf & Rohr, P.A., 960 Norwest Tower, 55 East 5th Street, St. Paul, MN 55101 (for appellant)

 

 

 

            Considered and decided by Amundson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s order denying his motion to reduce or terminate his maintenance obligation.  On appeal, he argues that the district court (1) ignored his demonstration of substantially changed circumstances, rendering his existing maintenance obligation unreasonable and unfair; (2) unjustly rewarded respondent for dissipating her marital property settlement; and (3) improperly used his pension payments to calculate his income for maintenance purposes.  Because we find that appellant has not demonstrated substantially changed circumstances that make the original award unfair and unreasonable and there is no evidence that respondent dissipated her marital property settlement in bad faith or that the district court improperly used his pension payments to calculate his income, we affirm.

FACTS

            Appellant Joseph Reichert and respondent Cecilia Reichert were married for 31 years.  The marriage was dissolved pursuant to a judgment and decree on July 27, 1990. 

            At the time of the dissolution, appellant earned a gross annual income of $63,420 as an employee of 3M, with a monthly net income of $3,320.22.  His monthly expenses were $1,400 per month.  Respondent was a homemaker during the marriage and was not employed outside the home at the time of the dissolution.  Her monthly expenses were calculated to be between $1,675 and $1,700 per month. 

            Each party received approximately one-half of the marital estate.  Respondent received $1,600 per month as permanent spousal maintenance.  She also received a 50% interest in appellant’s pension.  At the time of the entry of the decree, the accrued benefit to respondent would have been $1,583.15 per month if she opted to begin payments on February 1, 1998.  But respondent chose to begin drawing payments from the pension plan in 1990 at age 52, resulting in a monthly payment of approximately $635.  Over the years, respondent has used a portion of her settlement to provide gifts to the parties’ children and grandchildren.

            Appellant retired from 3M on December 31, 1996, and received a severance package equal to 60 additional weeks’ salary.  At retirement, appellant’s annual gross salary was $98,421.  Appellant has remarried, and his second wife is employed full-time.  In 1998, appellant unsuccessfully sought to have his maintenance obligation terminated.  Seven months after the May 1999 denial of his motion for amended findings in that proceeding, he initiated this proceeding, again seeking to reduce or terminate his maintenance obligation.

            On May 16, 2000, the district court denied appellant’s motion and awarded respondent attorney fees.  In its calculations of appellant’s income, the district court acknowledged that “[t]here have been substantial changes since entry of the Judgment and Decree.”  Although appellant’s gross income declined due to his retirement, his monthly net income has actually increased by 9%.  The most significant change is in appellant’s monthly living expenses which have increased 72%, from $1,400 to $2,409.33. Respondent is not employed outside the home.  The district court found that her gross monthly income has increased by $735.42 due to the addition of pension income.  Respondent’s expenses have remained unchanged. 

The district court felt that appellant ought to be responsible for shouldering the increased expenses created by his remarriage.  Moreover, the district court noted that appellant seemed to be trying to lower his income by arguing that certain assets belonged to his second wife.  This appeal follows.

D E C I S I O N

I.

            Appellant contends that the district court improperly used the marital portion of his pension benefits to determine his income for purposes of maintenance.  “Pension benefits awarded as property in a dissolution cannot be included in the income of a party when determining that party’s maintenance obligation.”  Walker v. Walker, 553 N.W.2d 90, 94 (Minn. App. 1996) (citation omitted).  A district court cannot require an obligor to pay maintenance out of pension payments until the obligor receives an amount from the pension that is equivalent to its value as determined in the original property distribution.  Kruschel v. Kruschel, 419 N.W.2d 119, 123 (Minn. App. 1988).  “To do so would be to allow the subsequent redistribution of the pension as income after it had been awarded as property.”  Neubauer v. Neubauer, 433 N.W.2d 456, 461 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989).

            Appellant’s argument is based on a misinterpretation of the district court’s order.  The district court found that appellant receives $2,773.30 monthly from his pension.  The court noted that the original dissolution had designated $1,583.15 of his pension as property, leaving $1,190.15 that could be considered income.  The court then determined that appellant earned $3,615.37 per month from all sources.[1]  By subtracting the portion of appellant’s pension deemed property from this amount, the court concluded that appellant derives $2,491.93 per month that could be considered income from non-marital sources.  This calculation appears twice in the court’s findings of fact.  Thus, the district court did not erroneously include the marital portion of appellant’s pension when the court calculated his monthly income.

II.

            A district court is accorded broad discretion in determining matters relating to maintenance.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989); Rapacke v. Rapacke, 442 N.W.2d 340, 343 (Minn. App. 1989).  This court will find an abuse of that discretion only if the district court’s conclusion is clearly erroneous and against logic and the facts of the case.  Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).  As the party seeking modification, appellant has the dual burden of demonstrating that his circumstances have substantially changed and that this substantial change effectively renders the original award unfair and unreasonable.  See Minn. Stat. 518.64, subd. 2(a) (2000); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

            The district court found that appellant “made decisions which have greatly increased his expenses,” and that the increase stems mainly from his new marriage.  But “remarriage in itself does not constitute sufficient change in circumstances to support the termination or reduction of maintenance.”  James v. James, 397 N.W.2d 587, 590 (Minn. App. 1986) (citation omitted). 

The law is clear that if [the obligor spouse] desires to take on further responsibility he must do so with the knowledge that his first obligation is for the payment of maintenance to his first wife.

 

Schroeder v. Schroeder, 405 N.W.2d 267, 269 (Minn. App. 1987) (citation omitted).  The award for spousal maintenance was permanent, not temporary.  Further, appellant’s expenses have increased largely as a result of his new marriage.  While the total amount of respondent’s monthly expenses have remained relatively unchanged since the dissolution in 1990,[2] appellant’s monthly expenses have increased by more than $1,000.  The district court noted that appellant’s entertainment budget is five times greater than respondent’s allotment, and that appellant and his wife have purchased a new home valued at $210,000.  Thus, even if there was an error in calculating appellant’s current income, the trial court did not err in finding that the maintenance award is still fair and reasonable.

            Appellant also suggests that an affirmance will unjustly reward respondent for mismanaging her marital property settlement.  This argument is unpersuasive for several reasons.  First, appellant has not demonstrated that the gifts respondent made were wasteful or outside her means.  Second, appellant’s argument that respondent should have waited until age 65 to begin drawing her 3M pension benefit in order to increase her monthly income is without legal merit.  It is also, as the district court noted, inconsistent with appellant’s assertion that respondent should not defer until age 65 her receipt of social security benefits.  Finally, respondent has never asked for an increase in her spousal maintenance award to offset her gifts.  Her maintenance award has remained the same for ten years.  She has never even sought a cost-of-living adjustment.  Rather, it is appellant who is seeking to terminate his obligation because he “has made decisions which have greatly increased his expenses.”  The district court did not abuse its discretion in determining the award was fair and reasonable.

            Finally, appellant argues that failing to modify the award will result in a shortfall because his living expenses and the maintenance award will exceed his non-marital income.  See Sward v. Sward, 410 N.W.2d 442, 444 (Minn. App. 1987) (noting that courts normally do not expect spouses to invade the principal of their assets to satisfy their monthly financial needs). 

            We do not assume that the district court failed to consider this when it determined that appellant could not demonstrate a substantial change in his circumstances that is unrelated to his remarriage or that the maintenance award is unfair or unreasonable.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error); Luthen v. Luthen, 596 N.W.2d 278, 283 (Minn. App. 1999) (same).  The district court’s calculations consistently distinguish between appellant’s marital and nonmarital income sources to the extent the court was provided with the supporting information.  We find that the court’s “determination that this level of maintenance is appropriate, given all the circumstances of the case, is not an abuse of discretion.”  Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989).

Affirmed.



[1] Appellant argues that the district court erred because it did not include the tax consequences for his social security income and used inaccurate investment income.  But the trial court used the documents that appellant provided, and he has not demonstrated what would have been the appropriate result.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (noting that “appellant cannot complain where inadequate documentation leads * * * to the trial court’s refusal to modify a decree” (citation omitted)).

 

[2]  Appellant argues the district court failed to exclude a $300 monthly mortgage payment, which he allegedly paid, from respondent’s expenses.  This argument is without merit because respondent did not include a mortgage payment when she calculated her monthly expenses.  The district court cannot exclude an expense that does not exist.