This opinion will be unpublished and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

C9-00-2009

 

In Re the Marriage of:

Roger Lloyd Nelson, petitioner,

Appellant,

 

vs.

 

Verla Mae Nelson,

Respondent.

 

Filed May 1, 2001

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Isanti County District Court

File No. F687862

 

Timothy T. Ryan, 10625 Railroad Avenue, Suite 201, P.O. Box 405, Chisago City, MN  55013 (for appellant)

 

Cynthia J. Brown, Clark A. Joslin Law Offices, 221 N.W. Second Avenue, Cambridge, MN  55008 (for respondent)

 

            Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

Roger Lloyd Nelson appeals from two orders (1) denying his motions to terminate his obligations to pay spousal maintenance to respondent Verla Mae Nelson and to provide her with health insurance; (2) holding him in constructive civil contempt for failing to pay spousal maintenance and for failing to transfer to respondent her share of his pension; (3) entering judgment against him for past-due maintenance; (4) awarding attorney fees against him; and (5) requiring him to obtain a life insurance policy to secure future maintenance payments.

            Because respondent’s claim to her share of appellant’s pension is not barred by the 10-year statute of limitations, we affirm the district court’s decision on that issue.  Because the statute of limitations bars any claim to maintenance due more than 10 years ago, however, we reverse the money judgment and remand for recalculation of the amount due.  We also reverse the district court’s denial of appellant’s modification motion, and remand to the district court to hold an evidentiary hearing, if necessary, and to make findings on whether there has been a substantial decrease in respondent’s needs that now renders the prior award unreasonable and unfair.  Finally, because there is no basis in the record to hold appellant in contempt, to award $500 in attorney fees against him, or to require him to obtain an insurance policy to secure future spousal maintenance, we reverse on these issues.

D E C I S I O N

            1.         Statute of Limitations

            Divorce judgments are governed by a ten-year statute of limitations, which provides that “[n]o action shall be maintained upon a judgment or decree * * * unless begun within ten years after the entry of such judgment.”  Minn. Stat. 541.04 (2000); Nazarenko v. Mader, 362 N.W.2d 1, 2 (Minn. App. 1985) (action to enforce divorce judgment requiring ex-spouse to repay debt over four-year period barred because brought over ten years after that debt was due).  If a judgment is payable in installments, only those installments falling due more than ten years prior to commencement of suit, or service of motion, are barred.  See Dent v. Casaga, 296 Minn. 292, 297-98, 208 N.W.2d 734, 737-38 (1973).

            In the 1989 judgment and decree, the court found that respondent had a marital interest in appellant’s pension plan, which the parties stipulated had a then-present value of $4,400, and that respondent was entitled to a “pro-rata share of the pension plan as it was valued as of September 5, 1987, the separation date.”  To effectuate its award, the court ordered

[t]hat the custodian of [appellant’s] pension plan through Ford Motor Company shall assign one-half of [his] interest in said pension plan from December 5, 1971 to September 5, 1987 to the Respondent.  The custodian shall transfer the said interest directly into a separate account under the name of the Respondent upon the date of the Judgment and Decree.

 

Respondent, who was represented by an attorney, did nothing until just recently, when she contacted the pension plan.  By statute, to protect her interests in the pension, respondent was required to file a copy of the judgment and decree with the pension plan.  See Minn. Stat. § 518.581, subd. 3 (2000).  But her failure to do so earlier does not now bar her from acting to protect her interests in the pension, which has not yet matured or become payable.  See McGowan v. McGowan, 532 N.W.2d 258, 260 (Minn. App. 1995) (where judgment does not divide pension by immediate lump sum award, trial court retains or reserves jurisdiction until pension becomes payable).  We therefore affirm the district court’s decision that the statute of limitations has not run on respondent’s claim.

            Appellant also argues that the district court erred in awarding judgment for spousal maintenance due prior to February 1990.  We agree.  The $14,300 judgment includes maintenance payments owed since December 1988.  Recovery of payments owed prior to February 1990 is barred by the statute of limitations.  See Dent, 296 Minn. at 297, 208 N.W.2d at 737 (if judgment payable in installments, only those installments falling due more than ten years prior to commencement of suit are barred).  The judgment is therefore reversed and the issue is remanded for a determination of the amount owed since February 1990, ten years prior to respondent’s motion.[1]

            2.         Modification of Spousal Maintenance

            Appellant’s motions to terminate his spousal maintenance obligation and his obligation to provide respondent with health insurance through his employer are motions to modify spousal maintenance.  See Hughes v. Hughley, 569 N.W.2d 534, 536 (Minn. App. 1997) (order terminating husband’s obligation to pay for wife’s health insurance was modification of maintenance award).  The relevant part of Minn. Stat. 518.64, subd. 2(a) (2000) requires a party moving for modification to show, among other things, that a party’s earnings or needs have substantially increased or decreased, making the terms of the prior order unreasonable and unfair.

            In this case, appellant has presented evidence to suggest that respondent’s needs have substantially decreased since the time of the divorce.  Respondent no longer has minor children to support, although she has voluntarily chosen to provide some support for two daughters by paying for their car insurance and medical expenses, and by offering them child care and occasional housing.  The needs of adult children generally cannot form the basis for maintenance.  See Reif v. Reif, 410 N.W.2d 414, 416 (Minn. App. 1987) (parent’s contributions to adult children, while commendable, cannot be considered in maintenance determination).

            In addition, respondent has been living with another man for more than six years and works part-time as a cook in a seasonal lunch wagon he owns.  Although he does not pay her an hourly wage, he gives her between $1,000 to $1,200 per month, pays for most of her living expenses, including housing, and allows her to use his vehicles.  Respondent’s living expenses appear to have decreased substantially since the parties’ divorce, when she was working and responsible for meeting her own daily needs.  See Sieber v. Sieber, 258 N.W.2d 754, 758 (Minn. 1977) (meretricious relationship cannot form basis for reducing or terminating maintenance, unless relationship reduces former spouse’s needs by improving her economic well-being or otherwise reducing her financial needs).

            Finally, respondent recently received more than $10,000 from a personal injury settlement arising from a 1994 car accident.  While she claimed that she has some physical restrictions as a result of the accident, she also stated that her restrictions do not prevent her from working.

            Given this evidence, which was largely undisputed by respondent, the district court abused its discretion by denying appellant’s modification motion without making adequate findings on the issue of whether respondent continues to need $100 per month in permanent spousal maintenance and whether she has the ability to pay for her own health insurance.[2]  See Rapacke v. Rapacke, 442 N.W.2d 340 (Minn. App. 1989) (denial of wife’s motion to modify temporary maintenance to permanent award reversed and remanded, where trial court failed to make findings on wife’s current needs or income, education requirements, and income prospects).

            3.         Contempt Order

            The district court ordered that appellant “shall be held in constructive civil contempt for his failure to grant to [r]espondent her share of his pension plan and for not paying spousal maintenance as ordered.”  In reviewing a contempt order, we consider whether the order “was arbitrary and unreasonable or whether it finds support in the record.”  Gustafson v. Gustafson, 414 N.W.2d 235, 237 (Minn. App. 1987) (courts have authority to enforce spousal maintenance obligations by imposing sanctions in civil contempt proceedings).

            Because the judgment and decree did not require appellant to take any action with respect to his pension and because it does not appear that appellant has wrongly dissipated respondent’s share of that pension, appellant has not disobeyed any court order regarding his pension plan.  Thus, this cannot form a basis for holding him in contempt.  See Minn. Stat. § 588.01, subd. 3(3) (2000) (constructive contempt may arise from “disobedience of any lawful judgment [or] order”).  While an obligor’s nonpayment of spousal maintenance may constitute prima facie evidence of contempt, no demand was ever made of appellant to make this payment, either directly or by an order to show cause.  See Minn. Stat. § 518.24 (2000) (when party violates order requiring payment of maintenance, “it is prima facie evidence of contempt”); Gustafson, 414 N.W.2d at 237 (child support obligor must have notice of obligations and reasonable amount of time within which to comply with orders).  Because at this time there is no basis in the record to hold appellant in contempt, we reverse the contempt order.

            4.         Other Sanctions

            Appellant argues that the district court abused its discretion by ordering him to pay $500 in costs and attorney fees, but failing to provide a basis for these fees.  We agree.  Where a claim for fees is based on allegations of misconduct, a court’s decision granting such fees must include findings.  Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (remanding for findings).  Because we have concluded that there is no basis for finding appellant in contempt and because the court provided no other basis for such an award, we reverse the award of attorney fees.

            Appellant finally argues that the district court abused its discretion by requiring him to obtain a $35,000 insurance policy to secure future spousal maintenance.  He argues that this provision will result in a continuation of spousal maintenance after his death, which is an exception to the general provision that maintenance ceases upon the death of the obligor.  See Minn. Stat. § 518.64, subd. 3 (“Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.”).  Again, we agree.  The judgment and decree does not expressly provide that maintenance will continue past appellant’s death.  In addition, if the district court intended to require “security” for payment of spousal maintenance under Minn. Stat. § 518.24 (2000), a performance bond could have been issued.  We therefore reverse the district court’s requirement that appellant obtain a life insurance policy.

            Affirmed in part, reversed in part, and remanded.

 



[1] Minn. Stat. § 548.091 (2000) allows for entry of a judgment for unpaid maintenance, after certain procedures are followed.  Relief under this statute was not sought here, and we make no ruling on the propriety of utilizing this statute on remand.

[2] The judgment and decree incorporated the parties’ agreement that appellant would maintain, for respondent’s benefit, medical insurance through his employer and that this coverage “shall be at no cost to the Respondent and shall continue until her remarriage.”  Appellant has presented evidence that no-cost coverage is no longer available for respondent through his employer, and has suggested that he only intended to provide that coverage as long as it was available at no cost to him.  Thus, appellant’s motion to terminate his obligation might also be considered a request to interpret the decree.  Cf. Bone v. Bone, 438 N.W.2d 448, 451 (Minn. App. 1989) (interpreting stipulation to require husband to pay insurance premiums until wife no longer eligible for continuation coverage under Minn. Stat. § 62A.21 or COBRA).