This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-00-1797

 

 

In Re the Marriage of: Diana Christine Durkee,

petitioner,

Appellant,

 

vs.

 

Robert Lynn Durkee,

Respondent.

 

 

Filed June 12, 2001

Affirmed.

G. Barry Anderson, Judge

 

Ramsey County District Court

File No. FX99516

 

John F. Markert, 1295 Ottawa Avenue, West St. Paul, MN† 55118 (for appellant)

 

Timothy D. Lees, Hennek Klaenhammer & Lees, P.A., 2585 Hamline Avenue North, Suite A, Roseville, MN† 55113 (for respondent)

 

††††††††††† Considered and decided by Lansing, Presiding Judge, G. Barry Anderson, Judge, and Foley, Judge.*

 

U N P U B L I S H E D† O P I N I O N

G. BARRY ANDERSON, Judge

Appellant-wife challenges the district courtís dissolution judgment, arguing that the evidence supports (1) an award of permanent rather than temporary spousal maintenance, and (2) a higher monthly spousal maintenance award of† $1,486.91.† We affirm.

FACTS

Appellant Diana Christine Durkee and respondent Robert Lynn Durkee dissolved their marriage after 21 years.† The parties have two children: one minor child, J.D., age 17, and one emancipated daughter, K.D., age 19.† The district court awarded respondent with physical custody of J.D.

Respondent works for the Minnesota Department of Labor and Industry and Occupational Safety and Health Administration (OSHA) as a safety enforcement officer.† His gross annual income is $48,692.80.† The district court determined respondentís net monthly income to be $2,796.94, and his monthly living expenses to be $2,506.

Appellant did not work outside the home for the majority of the marriage.† She has a high school diploma and attended community college classes both before and after the partiesí separation, but does not have a college degree.† For a short time in 1998, appellant worked as a part-time bookkeeper earning minimum wage.

Appellant has various medical ailments, including (1) mild epilepsy with petit mal seizures; (2) type two diabetes (non-insulin dependent); (3) high blood pressure; (4) depression; and (5) neck/back problems.† Appellant, however, testified that her epilepsy and diabetes are well controlled.† With respect to the epilepsy, appellant stated that she does not have convulsions or lose consciousness, and maintains a valid driverís license.† With respect to the diabetes, appellant testified that she does not require an insulin shot but regulates her diet and takes an oral medication.†

On March 22, 1999, prior to trial, the district court heard appellantís motion for temporary relief.† Appellant was unemployed, had no source of income, and, among other things, requested spousal maintenance.† The district court ordered respondent to pay appellant $1,290 per month in temporary spousal maintenance.

†Shortly after receiving an award of temporary spousal maintenance, appellant moved to Burnet, Texas, a small town northwest of Austin.† Appellant chose this location, in part, because technology companies like Dell, Motorola and Compaq had offices nearby.† Upon her arrival in Texas, appellant obtained employment as a part-time jewelry salesperson at Wal-Mart.

In preparation for trial, the parties hired Eugene Hogenson, a neutral vocational psychologist, to evaluate appellantís future employment potential.† Hogenson interviewed appellant and reviewed her medical and psychological records, and concluded that ď[appellant] has a number of disabilities, physical and emotional, but in my opinion, neither her physical nor her emotional limitations will prevent her from returning to full time paid employment.Ē† But Hogenson also concluded that appellant would need to obtain additional training before entering the workforce.† Appellant expressed interest in completing an associate of arts degree to prepare her for a job in the technology or computer sector, which Hogenson found appropriate given appellantís abilities.† Hogenson estimated that it would take approximately three years for appellant to complete her degree.††

The case was tried to a referee of the district court on March 24, 2000.† The district court approved, signed, and released the refereeís order and judgment on August 16, 2000.† The district court approved, signed, and released the refereeís amended order on October 11, 2000.† In its amended findings, conclusions, and order, the district court, among other things, ordered respondent to pay appellant $600 per month in temporary spousal maintenance for four years.† The court reasoned that

[a] period of four years will allow [appellant] to complete her education and will allow her one year to secure employment in the computer field, in which the demand for new employees is expected to continue for years into the future.

 

When awarding appellant spousal maintenance, the district court also took into account the disparity of the partiesí incomes, appellantís inability to independently provide for herself, and respondentís ability to meet his needs and the needs of the minor child while paying temporary spousal maintenance to appellant.† Neither appellant nor respondent filed posttrial motions.†

Appellant now challenges the courtís amended order, arguing that the district court should have awarded her permanent rather than temporary maintenance.† Appellant also contests the amount of the maintenance award, asserting that the district courtís findings and conclusions support a higher monthly award of† $1,486.91.

 

D E C I S I O N

 

††††††††††† In the absence of posttrial motions, this court gives increased deference to the district court decision.† Leininger v. Anderson, 255 N.W.2d 22, 26-27 (Minn. 1977).† The only questions for review are whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.† Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989).† Underlying factual findings will be set aside only if they are clearly erroneous.† McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

I.

Appellant claims that the evidence supports an award of permanent rather than temporary maintenance.† The district court concluded:

That as and [sic] for temporary rehabilitative spousal maintenance, [respondent] shall pay [appellant] the sum of six hundred dollars ($600.00) per month commencing the first of August, 2000 and continuing for a period of four (4) years or until such time as [appellant] remarries or either party dies, or [respondent] retires, whichever shall occur first.† [Appellant] shall have the duty and obligation to make all good faith efforts to become self-supporting.

 

* * * *

 

The right to claim or receive maintenance at the completion of the period set out above and the Courtís jurisdiction over such further maintenance is specifically reserved.

 

The record supports the district courtís findings because there is no uncertainty as to whether appellant can successfully rehabilitate herself.† Dr. Hogenson, the neutral vocational psychologist, concluded that ďneither [appellantís] physical nor her emotional limitations will prevent her from returning to full time paid employment.Ē† Dr. Hogenson further concluded that appellant seemed highly motivated and had the intellectual capacity and determination to finish her training and find employment.† Dr. Hogenson estimated that appellant could complete an associate of arts degree, a two-year degree, in three years.† The district court awarded appellant temporary maintenance for four years, allowing appellant one year to secure employment.† Appellant testified that she reviewed Dr. Hogensonís report, which was admitted into evidence, and found it to be reasonable.††

We conclude that the evidence supports the district courtís findings and conclusions regarding an award of temporary spousal maintenance.

II.

††††††††††† Appellant next argues that the evidence supports a higher maintenance award of $1,486.91 per month, rather than $600 per month.†

Maintenance awards are governed by Minn. Stat. ß 518.552, subd. 1 (2000), which allows a court to grant maintenance if a spouse (1) ďlacks sufficient property * * * to provide for reasonable needs * * * considering the standard of living established during the marriage,Ē or (2) cannot provide self-support.† Once need is established, the district court must consider ďthe financial resources of the party seeking maintenance * * * and the partyís ability to meet needs independentlyĒ and ďthe ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.Ē† Minn. Stat. ß 518.552, subd. 2(a), (g) (2000); see Bourassa v. Bourassa, 481 N.W.2d 113, 115 (Minn. App. 1992) (explaining that the courtís task is basically to balance recipientís need against obligorís financial condition).

††††††††††† Appellant contends that given the standard of living established during the marriage, she is unable to independently meet her needs.† Appellant works as a part-time employee for Wal-Mart.† Her monthly take home pay is approximately $530.57, not including any spousal maintenance payment.[1]† Her monthly expenses are $2,409.68 if not attending college classes, and $3,002.08 if enrolled as a college student.† As a result, appellantís monthly deficit is between $1,879.11 and $2,471.51.† Accordingly, the evidence supports the district courtís findings that appellant is unable to independently meet her needs considering the standard of living established during the marriage.†††

But, of course, this is not the end of the analysis because we must turn to the respondentís ability to pay increased or additional maintenance.† Appellant claims respondent will be able to meet his needs even when paying an increased monthly spousal maintenance payment of $1,486.91 because respondentís income should include, and the district court committed error by not including, the following: (1) the minor sonís salary; (2) tax benefits from the marital maintenance deduction; (3) annual gifts given to respondent by his parents; and (4) the child support payment to respondent by appellant.

Appellant asserts that the income of the partiesí minor son, approximately $570 per month, is paid to respondent ďfor use in running of the household.Ē† As a result, appellant argues that this money should be treated as monthly income to respondent.† We disagree.† Nothing in the record supports attributing sonís income to respondent.† To the contrary, respondent explained at trial that the minor sonís income is used to repay a previously incurred debt.††† Appellant next argues that the district court should have taken into account the tax consequences of respondentís spousal maintenance payments.† Appellant argues that respondent will receive a ď$125 benefit to his resources by the $600 per month deduction or $7,200 reduction in taxable income brought about by the marital maintenance deduction.Ē

While it is undisputed that the spousal maintenance payments can impact a partyís income tax burden, this record reveals no evidence or offer of proof by appellant regarding the tax consequences to respondent for his maintenance obligation, and the district court deleted any reference to the tax consequences of spousal maintenance payments in its amended findings.† The law precludes any consideration of an issue where the court must speculate because the evidence is lacking or nonspecific.† OíBrien v. OíBrien, 343 N.W.2d 850, 854 (Minn. 1984).†

††††††††††† Appellant next argues that the district court clearly erred by not attributing as additional income a $5,000 annual gift given to respondent by his parents.† The district court made the following finding on this issue:

There has been established a customary gifting of the Respondentís parents to the parties (including to the Respondent since the separation of the parties) in the amount of $5,000 per year for the past five to ten years, historically in the marriage.† The gifting from Respondentís parents was not a loan that had to be repaid, but was a gift * * * that has been
regularly received from a dependable source and can beanticipated in the future and therefore should be considered in determining the matter of spousal maintenance.

 

Respondent counters that the district courtís finding regarding his parentsí annual giving is clearly erroneous.† We agree.† The record does not support the district courtís finding that respondentís parents gave the parties an annual gift of $5,000 for the past five to ten years.† Appellant testified that the giving started out at $1,000 per year and rose to $5,000 per year in 1997 and 1998.† Respondent testified that the partiesí received $5,000 for maybe three or four years.† Accordingly, we conclude that the district court clearly erred when finding that the parties received $5,000 per year for the past five to ten years.† This error, however, is harmless because the district court did not attribute the gift monies as part of respondentís monthly income.† See Minn. R. Civ. P. 61 (harmless error is ignored).††

Finally, appellant contends that the district court erred by failing to include her $84.25 child support payment as income attributable to respondent. Respondentís monthly income as stated by the district court is $2,796.94.† Respondent has reasonable monthly expenses of $2,506, not including the temporary maintenance payment of $600 per month.† When adding the $84.25 to his income of $2,796.94† and then subtracting the $600 maintenance payment, respondent is left with a monthly shortfall of $224.81. Moreover, the finding of respondentís monthly income apparently overestimates his actual monthly income by $451.31 because this finding is based on the incorrect assumptions that respondent is married and has four deductions.† Thus, when including the $84.25 child-support award, respondentís monthly deficit exceeds $675.† Accordingly, the district courtís failure to add the child support payment to respondentís income, even if erroneous, is harmless.† See Minn. R. Civ. P. 61 (harmless error is ignored).

We conclude that the evidence supports the district courtís findings and conclusions regarding the amount of the spousal maintenance award.

Affirmed.



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

 

[1]Although this number is different that the net monthly income figures cited by both appellant and respondent, we arrived at this amount by taking appellantís net take home pay of approximately $244.88 every two week pay period, as stated in Finding XII, multiplying the number by 26 ($244.88 x 26 = $6366.88) and dividing this number by 12 ($6366.88/12 + $530.57).