This opinion will be unpublished and

may not be cited except as provided by

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






Douglas E. Johnson, petitioner,





Beverly J. Johnson,



Filed July 24, 2001

Affirmed in part and remanded

Lindberg, Judge*


Dakota County District Court

File No. F79313658





Cara A. Wittwer, Mary J. Bjorklund Law Office, 5215 Edina Industrial Boulevard, Suite 200, Edina, MN 55439 (for respondent)


John H. Daniels, Jr., Willeke & Daniels, 201 Ridgewood Avenue, Minneapolis, MN 55403-3508 (for appellant)



            Considered and decided by Randall, Presiding Judge, Anderson, Judge, and Lindberg, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Beverly J. Johnson contends the district court erred by finding respondent Douglas E. Johnson was not retired in bad faith, by converting respondent’s motion to terminate maintenance to a motion to modify, and by reducing spousal maintenance without making adequate findings.  We affirm in part and remand.


Douglas E. Johnson and Beverly J. Johnson were married for 33 years.  The marriage was dissolved by judgment and decree entered in November 1994, after a trial on the issues of spousal maintenance and attorney fees.  Mrs. Johnson was a homemaker during the marriage.  Mr. Johnson had worked as a union pipe fitter since 1969, repairing heating, ventilation, and air-conditioning systems.  The dissolution decree, as amended, ordered Mr. Johnson to pay $1,150 per month in permanent spousal maintenance.

In March 1996, at age 59, Mr. Johnson retired voluntarily and subsequently began taking classes at a technical college.  Mr. Johnson moved to terminate spousal maintenance and the district court denied the motion, concluding that he was "capable of continuing his current employment and is unilaterally choosing to limit his income."  The court granted, in part, Mrs. Johnson’s motion to increase spousal maintenance, ordering maintenance increased from $1,150 to $1,350.  The court noted Mrs. Johnson’s changed circumstances, including her age, her lack of employment experience, and the onset of diabetes, all of which worked against her obtaining gainful employment.  Mr. Johnson moved for amended findings and the court vacated the prior order and reserved Mr. Johnson’s spousal maintenance obligation.  Beverly Johnson appealed, and this court remanded to the original judge for hearing.  Johnson v. Johnson, 563 N.W.2d 77, 79 (Minn. App. 1997).  The district court reaffirmed its original order and concluded that the record "not only supported, but compelled, the court's findings."  Douglas Johnson appealed, and this court affirmed.  Johnson v. Johnson, No. C9-97-2063, 1998 WL 297528, at *5 (Minn. App. June 9, 1998).

Mr. Johnson did not return to work and has not paid any spousal maintenance voluntarily since his retirement in March 1996.  His income before retirement was $3,048 per month, and his current income is $1,160 per month in social security benefits plus $855.85 per month from a pension.  Mrs. Johnson garnished Mr. Johnson’s social security income and has been receiving $754 per month.  As of September 2, 2000, Mr. Johnson’s spousal maintenance arrearages totaled $64,820.80.

Mr. Johnson moved again to terminate maintenance in October 2000.  The court denied the motion to terminate but treated the motion as one for modification in the alternative and modified spousal maintenance from $1,350 to $350 per month, finding he was no longer retired in bad faith. 


1.         Beverly J. Johnson contends the district court erred by finding Douglas E. Johnson was not retired early or in bad faith.  When an obligor retires early, and the maintenance obligee raises a colorable claim of bad faith, the obligor must show by a preponderance of the evidence that the decision to retire early was not primarily influenced by a specific intent to decrease or terminate maintenance.  Richards v. Richards, 472 N.W.2d 162, 165 (Minn. App. 1991).  When Mr. Johnson retired at age 59, the district court found that he voluntarily chose to retire and he was physically capable of continued employment in the same or similar position.  This court affirmed.  Johnson v. Johnson, No. C9-97-2063, 1998 WL 297528, at *3-*4 (Minn. App. June 8, 1998).  Mr. Johnson brought the current motion to terminate four years later, at age 63.  The parties do not dispute that age 63 is the accepted retirement age for Mr. Johnson’s occupation.  Additionally, he submitted letters from his doctors stating he suffers from degenerative joint disease of his back.  The court found that he was now "well within the normal retirement age," considering his occupation and health.  The court did not clearly err in finding that Mr. Johnson being retired at age 63 was not  unreasonable or in bad faith.

2.         Mrs. Johnson contends the district court erred by converting Mr. Johnson’s motion to terminate to a motion for modification.  Modification of spousal maintenance is within the district court’s broad discretion and will not be reversed absent an abuse of that discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  Such an abuse occurs when the district court resolves the matter in a manner “that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

The court used its discretion to modify maintenance "in the interests of judicial economy," considering it likely that the parties would return on a motion to modify if the court denied the motion to terminate.  The parties had a history of resolving their disputes in court, as evidenced by several district court appearances and two appeals since 1994.  The court felt it had sufficient information regarding the parties' income and expenses to decide the modification issue.  The court did not abuse its discretion in converting the motion to terminate to a motion to modify spousal maintenance.

An order for maintenance may be modified upon a showing of one or more of the following:

(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party * * *; (3) receipt of assistance * * *; (4) a change in the cost of living for either party * * *, any of which makes the terms unreasonable or unfair * * * .


Minn. Stat. § 518.64, subd. 2(a) (2000).  The supreme court has held that the modification analysis is two-pronged:

[Minn. Stat. § 518.64, subd. 2(a)] places a dual burden on the party seeking modification—first, to demonstrate that there has occurred a substantial change in one or more of the circumstances identified in the statute and second, to show that the substantial change has the effect of rendering the original award unreasonable and unfair.


Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (citations omitted). 

In considering a motion to modify maintenance, the district court shall apply those factors for an award of maintenance that exist “at the time of the motion.”  Minn. Stat. § 518.64, subd. 2(c) (2000).  The relevant factors are:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently * * *;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party's age and skills, of completing education or training and becoming fully or partially self-supporting;

(c) the standard of living established during the marriage;

(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party's employment or business.


Minn. Stat. § 518.552, subd. 2 (2000).


When modifying maintenance, the district court must make adequate findings to allow this court meaningful review.  Rapacke v. Rapacke, 442 N.W.2d 340, 343 (Minn. App. 1989).  Here, the court's December 8, 2000 order was accompanied by a memorandum but included limited findings.  The court acknowledged Mr. Johnson’s changed circumstances, including decreased income from $3,048 to $1,261.85 and expenses of $1,488 per month, and concluded it would be unreasonable and unfair to require him to pay more spousal maintenance than his net monthly income.  The court, however, made no findings concerning Mrs. Johnson’s income and expenses, only stating that she "deserves some form of maintenance, and that [Mr. Johnson] has the ability to pay $350 per month to that end."  We therefore remand to the district court for more specific findings addressing the factors in Minn. Stat. § 518.552, subd. 2.  The district court may, in its discretion, request further documentation from the parties concerning their current income and expenses.

Finally, Mrs. Johnson contends the court's order incorrectly assumed that she could continue to garnish $754 per month from Mr. Johnson’s social security income.  Federal law allows garnishment of 65% of the obligor's social security income for enforcement of a support order.  15 U.S.C. § 1673(b)(2)(B) (1994).  Under the previous award, she was entitled to garnish 65% of his $1,160 social security income, or $754.  Minnesota law limits withholding for arrearages to "an additional amount equal to 20 percent of the monthly *** maintenance obligation until the arrearage is paid."  Minn. Stat. § 518.6111, subd. 10(a) (2000).  Mrs. Johnson claims that under the reduced award, she would be entitled to garnish $350 in spousal maintenance plus only $70 towards arrearages (20% of $350), for a total of $420 per month.  The statute, however, states that "[t]his remedy shall not operate to exclude availability of other remedies to enforce judgments."  Minn. Stat. § 518.6111, subd. 10(a).  Beverly J. Johnson, therefore, has the option of pursuing a judgment for the past-due spousal maintenance from Douglas E. Johnson, thus allowing her to collect more than 20% of the award toward the arrearages.

Affirmed in part and remanded.


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