This opinion will be unpublished and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
Judy M. Simone,
Gary T. Simone,
Filed April 24, 2001
Ramsey County District Court
File No. F3-96-407
Thomas M. Brudvig, 854 East River Road, Anoka, MN 55303 (for Appellant)
Dianne Wright, 905 Parkway Drive, St. Paul, MN 55106 (for Respondent)
Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.
Appellant ex-wife challenges the district court’s order terminating her maintenance award and requiring her to repay six months of previously received maintenance to respondent ex-husband. She alleges that it is unclear whether she will be able to keep her current job, that the district court did not correctly interpret the divorce decree, and that the district court abused its discretion by making its order retroactive. We affirm.
During the dissolution proceedings in 1997, both parties agreed on awarding ex-wife temporary spousal maintenance. Ex-wife had been a homemaker while the Simones’ children were young. She had returned to the work force in 1990 or 1991 to pursue a career as a baker, and was working as a part-time baker's apprentice. The district court projected she would be earning between $13 to $15 per hour when she completed the apprenticeship and provided in the divorce decree:
As for temporary spousal maintenance, [ex-husband] shall pay to [ex-wife] the sum of $500.00 per month, commencing October 1, 1997, to continue for a period of 60 months or until [ex-wife] is earning a gross income of $26,500.00 per year, whichever first occurs, or until the earlier remarriage of [ex-wife] or the death of either party.
On January 3, 2000, ex-wife was promoted from baker's apprentice to journeyman baker and received a pay raise to $15.30 per hour, which constitutes an annualized gross income of $31,824. On April 30, 2000, she received a second pay raise to $16.30 per hour, an annualized income of $33,904. Ex-husband continued to make maintenance payments though June 2000.
After reviewing the decree and the parties' written submissions, the district court terminated the temporary spousal maintenance as of the date of ex-wife’s January 3, 2000 pay raise and ordered ex-wife to reimburse ex-husband for the maintenance paid after that date. This appeal followed.
Appellate review of a district court’s maintenance award is made under an abuse of discretion standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997). For an appellate court to conclude the district court abused its broad discretion with respect to an award of spousal maintenance, the district court's fact-findings must be “against logic and the facts on [the] record.” Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citations omitted).
Ex-wife argues on appeal that the district court erred in interpreting the decree and that the court erred in terminating the temporary spousal maintenance because it did not consider all of her economic factors in determining whether she was self-supporting.
“On appeal, the trial court's construction of its own decree has great weight.” Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987) (citation omitted), review denied (Minn. Dec. 22, 1987). When considering the terms of a decree, a determination of whether that judgment is ambiguous is a legal question. See Head v. Metro Life Ins. Co., 449 N.W.2d 449, 452 (Minn. App. 1989), review denied (Minn. Feb. 21, 1990). The meaning of an ambiguous judgment provision is a fact question reviewed on a clearly erroneous basis. SeeLandwehr v. Landwehr, 380 N.W.2d 136, 139-40 (Minn. App. 1985).
The referee and district court judge deciding this motion for modification entered the original decree; they are entitled to deference when interpreting it. Mikoda, 413 N.W.2d 242. Neither party disputes that ex-wife is earning wages at an annual rate in excess of $26,500, but ex-wife argues that she must earn $26,500 in one year before the terms of the decree operate to terminate the maintenance payments. The decree provided that maintenance would be terminated when ex-wife "is earning a gross income of $26,500.00 per year." The district court did not abuse its discretion by concluding that maintenance was to be terminated once ex-wife earned an annualized income of more than $26,500. The court's interpretation of the language is valid. Furthermore, the order comports with the terms of the original decree, which called for ex-husband to pay temporary support until ex-wife could establish her career, which she has now done.
Ex-wife's allegations that her pay raise may not be permanent are countered by evidence obtained from her employer. The record demonstrates that she is working more than 40 hours per week, she is on full-time status, and her probability of continued employment is “good.” As the district court relied on the terms of the decree to terminate maintenance payments, there was no need to examine the statutory factors for determining whether the termination was warranted by a change in circumstances.
Ex-wife also argues that the district court erred by terminating maintenance effective January 3, 2000, the date of her raise, and before ex-husband had moved for termination. Neither party provided legal citation for that argument.
Normally, retroactive modification of a maintenance order is within the discretion of a district court. Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999). However, "assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection." Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971). On mere inspection, we do not find prejudicial error and decline to address the allegation that it was error to make a retroactive modification of temporary maintenance payments.