[NOTE: This opinion as been changed according to the court order dated April 17, 2001.]


This opinion will be unpublished and

may not be cited except as provided by

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






In Re the Marriage of:

Charlene R. Schwartz, petitioner,


Robert D. Schwartz,


Filed April 3,† 2001

Affirmed as modified

Hanson, Judge


Hennepin County District Court

File No. DC184702



Sandra K. Kensy, Attorney at Law, 5430 Carlson Road, St. Paul, MN 55126 (for respondent)


John R. Jesperson, Jesperson Law Office, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for appellant)



††††††††††† Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Hanson, Judge.



U N P U B L I S H E D† O P I N I O N



On appeal after remand to determine the effect on respondentís maintenance needs of her inheritance and the sale of her home, appellant challenges the trial courtís determination that, while these represented a substantial change in circumstances, no modification should be made to the maintenance award.† We affirm the trial courtís calculation of respondentís monthly income, but modify the amount of the maintenance award due to a reduction in respondentís maintenance needs.



In April 1998, appellant Robert Schwartz moved to modify or terminate permanent maintenance because respondent Charlene Schwartz had profited from the sale of her home and was due to inherit a substantial sum from her motherís estate, and because appellantís income had declined significantly since the dissolution.† In May 1999, the court denied his motion to modify.† Appellant challenged the trial courtís decision and, in March 2000, this court remanded for consideration of respondentís income from the sale of her home and the inheritance.† On remand, the trial court found that respondent now has ďalmost $1,300,000 in invest[a]ble assets compared to the $501,477 in actual invest[a]ble assets at the time of the decree.Ē† This finding is not disputed and the trial court found this to be a substantial change in circumstances.

The trial court then reviewed respondentís expenses to determine whether the changed circumstances rendered the maintenance award unfair or unreasonable.† The court found that respondentís housing costs had decreased, leaving her with reasonable monthly expenses of $7,389, based on the standard of living established during the marriage.† The court then evaluated the income respondent could generate from her investable assets, added the $4,500 per month appellant has been ordered to pay in maintenance, applied the tax tables, and found respondent has monthly net income of about $7,700.† Based on this calculation, the court found that the original maintenance award was not unfair or unreasonable.†† The trial court again denied appellantís motion to modify the maintenance award.† This appeal followed.††††††



††††††††††† Appellate courts review a trial courtís maintenance award under an abuse of discretion standard.† Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).† For this court to conclude the trial court abused its broad discretion with respect to an award of spousal maintenance, the trial courtís resolution of the question must be ďagainst logic and the facts on [the] record.Ē† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).† ďFindings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.Ē† Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992) (citation omitted).


††††††††††† Appellant contends the trial court clearly erred in determining respondentís income from investable assets because the court applied the tax tables in finding her net income.† In the original decree, the magistrate did not apply the tax tables and found that respondent could earn $3,170/month gross income, based on a 7% return on her investments.† The trial court on remand used the 7% gross-interest-income figure, but† then applied the tax tables, finding that the after-tax return on the significantly greater investable assets was actually less than the pre-tax return used in setting the original maintenance award.†

The trial court did not clearly err by applying the tax tables to the gross income figures.† For a factual finding to be clearly erroneous, it must be ďagainst logic and the facts on [the] record.Ē† Rutten, 347 N.W.2d at 50.† The trial courtís decision to reduce gross income for taxes was not against logic.† Maintenance is awarded to meet need.† Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989); see Minn. Stat. ß 518.552, subd. 2(a) (awarding maintenance requires determinations of maintenance recipientís ďability to meet needs independentlyĒ).† A maintenance recipient ďneedsĒ to pay taxes on any earned income.† To account for this expense, the trial court could either (1) reduce respondentís income for taxes and leave taxes out of the calculation of respondentís reasonable monthly expenses; or (2) leave taxes in respondentís income but make sure they are also included in her reasonable monthly expenses.† Here, the trial court did the former, which is consistent with the statute and case law.† The trial courtís decision was likewise not against the facts in the record.† The 7% gross-interest figure is part of the record and is the same figure used by the magistrate.



In evaluating respondentís expenses, the trial court found that her housing costs have decreased, leaving her with reasonable monthly expenses of $7,389.† Appellant contends the trial court erred by not considering any other changes to respondentís expenses.†

Generally, the appellate courtís decision determines the scope of the hearing on remand:

It is the duty of the trial court on remand to execute the mandate of [the appellate] court strictly according to its terms.† The trial court has no power to alter, amend, or modify [the appellate courtís] mandate.

Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982) (citations omitted).† In this case, the appellate decision provided specific directions to the trial court to evaluate whether respondentís financial resources had changed substantially since appellant filed his original motion in 1998.† Schwartz v. Schwartz, No. C5-99-1142, 2000 WL 310264, at *2 (Minn. App. 2000).†† Once the trial court found a substantial change in circumstances, it had to evaluate respondentís expenses to determine whether she still needs the maintenance award.

The trial courtís only adjustment to respondentís needs was to decrease her monthly housing expenses to reflect the sale of her home and the purchase of the townhouse.† The trial court found, and the record confirms, that respondentís other living expenses did not decrease after the minor children moved out of the house because the court of appealsí 1996 decision established that the monthly expenses were attributable almost entirely to respondent.† See Schwartz v. Schwartz, 1996 WL 192983, at *2 n.3 (Minn. App. Apr. 23, 1996), review denied (Minn. June 19, 1996).† The trial court then declined to evaluate any other expenses because appellantís failure to pay maintenance compromised respondentís standard of living and precluded an accurate evaluation of her expenses. †We agree with this general approach, but conclude that the record permits an isolated review of the retirement savings contribution, which had a different purpose than the other items included in respondentís needs.

Appellant contends the trial court erred by including in respondentís expenses a† monthly contribution of $1,200 to retirement savings, as had been included in the original maintenance award.† The purpose of this allowance, while treated as a monthly expense, is to accumulate assets to secure respondentís needs in the future.† We agree with appellant that respondentís $800,000 inheritance provided assets well in excess of those contemplated under the retirement savingsí allowance and thus replaced the need for retirement savings included in the original maintenance award.† Appellant's maintenance obligation should be adjusted to eliminate the $1,200 per month retirement savings, effective as of the date of the trial courtís order of October 4, 2000.

††††††††††† Affirmed as modified.