This opinion will be unpublished and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

C6-00-2243

 

In Re the Marriage of: Virginia E. Westland, petitioner,

Respondent,

 

vs.

 

Stanley K. Westland,

Appellant.

 

 

Filed August 14, 2001

Reversed and remanded

Randall, Judge

 

Freeborn County District Court

File No. F3981210

 

 

Jill I. Frieders, O'Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN  55903-0968 (for respondent)

 

Matthew F. Berry, Matthew F. Berry Law Office, P.O. Box 187, 306 Main Avenue, Clear Lake, IA  50428; and

 

Matthew L. Benda, Peterson, Savelkoul, Schlichting & Davies, Ltd., 211 South Newton, Albert Lea, MN  56007 (for appellant)

 

 

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

 

 

U N P U B L I S H E D   O P I N I O N

R. A. RANDALL, Judge

            In this dissolution appeal, appellant challenges the characterization of the spousal-maintenance award as one for permanent maintenance.  Respondent filed a notice of review and argues that the district court improperly considered appellant's motion to reconsider, improperly retained jurisdiction for five years, and could not require her to search for full-time work.  We reverse and remand.

FACTS

            In July 2000, appellant Stanley Westland and respondent Virginia Westland had their marriage dissolved.  On July 18, before the conclusion of testimony, the district court signed a stipulated partial judgment and decree that split the property and debts of the parties.  After concluding testimony, the court issued a final judgment and decree, which addressed spousal maintenance.  The maintenance portion of the judgment did not include an end date for the maintenance award and required respondent to search for full-time employment. 

            Appellant promptly filed a motion for a new trial or amended findings because he believed the judgment improperly awarded respondent permanent maintenance.  At the motion hearing, the district court stated that it did not intend to award permanent maintenance and stated it would clarify its order.  The court denied appellant's motion but did not clarify its maintenance ruling. 

            Shortly thereafter, appellant sent a letter requesting permission from the court to submit a motion for reconsideration.  The district court granted the request.  On November 8, the district court entered a second amended judgment and decree stating that it was awarding "permanent" maintenance but reserved jurisdiction to review the award for five years.  On December 29, appellant appealed the July 18, 2000, August 17, 2000, and November 8, 2000 judgments to this court.  This court found the portion of the appeal that related to the July and August judgments was untimely and dismissed that part of the appeal.  The appeal was limited to the appeal of the November judgment, which involved the characterization of the award as "permanent" and the district court's reservation of jurisdiction.

            Appellant challenges the characterization of the award as one for permanent maintenance.  Respondent, in turn, argues that the district court improperly considered appellant's motion to reconsider, retained jurisdiction for five years, and required her to search for full-time work.

D E C I S I O N

I.          Motion to Reconsider  

            After appellant's motion for a new trial or amended findings was denied, he requested permission to submit a motion for reconsideration pursuant to Minn. R. Gen. Pract. 115.11 because he believed the district court did not intend to award permanent maintenance.  The district court granted the request.  Respondent argues the district court erred by allowing the motion for reconsideration because case law prohibited such motions and Minn. R. Gen. Pract. 115 does not apply to family-law matters.  We disagree.  Respondent correctly argues that prior case law prohibits motions for reconsideration.  See Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996) (holding the rules of civil procedure did not authorize a motion to reconsider), review denied (Minn. Dec. 23, 1996).  But Minn. R. Gen. Pract. 115.11, which allows such motions, was adopted thereafter in 1997.

            This is a matter of interpretation of court rules, a question of law, which this court reviews de novo.  VanSlooten v. Estate of Schneider-Janzen, 623 N.W.2d 293, 270-71 (Minn. App. 2001).  Minn. R. Gen. Pract. 115.01 limits the application of rule 115 to "all civil motions, except those in family court matters governed by Minn. R. Gen. Prac. 301 through 3(2)."  (Emphasis added).  Because rules 301-312 do not address reconsideration, they do not govern reconsideration.  Therefore, rule 115.11 applies in family matters and requests to reconsider made thereunder may be made in family matters.

            This conclusion is consistent with the fact that the comments and notes to rules 301-312 consistently cite the Minnesota Rules of General Practice.  In particular, a comment following a rule on motions in family-law matters states that new subdivisions were

 

derived from parallel provisions in new Minn. Gen. R. Pract. 115, and are intended to make motion practice in family court matters as similar to that in other civil actions as is possible and practical.

 

Minn. R. Gen. Pract. 303.03 1996 advisory comm. cmt.  Here, the motion for reconsideration was timely and, therefore, the district court did not improperly consider the motion.

II.        Permanent Spousal Maintenance

            This appeal is limited to the November 8, 2000, judgment, the district court's characterization of the maintenance award as "permanent," and the reservation of jurisdiction.  Although both appellant and respondent challenge findings of previous judgments, this court will not review the July and August orders.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370-71, 147 N.W.2d 100, 103 (1966) (stating after appeal deadline expires, unappealed ruling is final, even if it is incorrect). 

            While this appeal is limited to the November judgment, it remains true that the entire record is still the record for appeal purposes.  Thus, to the extent the district court's maintenance ruling is ambiguous, we can review the district court's comments, which are on the record, to determine the intent of the order awarding maintenance to respondent.  Determination of spousal maintenance is a matter within the district court's discretion, which we will not disturb on appeal absent an abuse of that discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  Appellant argues the district court intended to award temporary maintenance and erred by using the word "permanent" in the November order.  Respondent argues the district court properly awarded permanent maintenance but erred in retaining jurisdiction and directing her to find full-time employment.  We agree that genuine confusion surrounds the district court's November order.  The district court stated it did not award permanent maintenance in one place, and then used the term "permanent maintenance" in another place.

Generally, an award of temporary maintenance contemplates that the recipient will attempt to become self-supporting.  Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986).  There is no bright-line rule for determining when permanent maintenance is appropriate.  Rather, each case must be determined on its facts.  See Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997) (commenting that marital dissolution proceedings are very fact specific).

            Here, at the hearing on appellant's motion for a new trial or amended findings, the district court stated:

I don't think I ordered permanent maintenance, I don't think I used that word.  Hopefully, I didn't use that word.  I did not intend to use that word permanent.

 

Then, in the November judgment, the court stated:

[n]either party has produced expert testimony as to [respondent's] employability in the current job market.  This would have been helpful.  Also, it is unclear if additional training or education would help increase her employability.  In the absence of employability information, and without knowing the results of the job search ordered in Finding No. 38, [respondent's] future employability remains unclear. 

 

At the time of the dissolution proceedings, respondent worked as a substitute teacher for one school district.  The superintendent of that school district testified about the hiring process of his district.  Much of his testimony focused on the general application process in his district, but he also testified about his view of respondent's abilities.  The superintendent's testimony was limited to only his school district.  There are several other districts in the surrounding area, as well as private schools.  The record lacks information regarding respondent's employability beyond the superintendent's testimony.  The district court determined:

Under these circumstances, permanent maintenance should be ordered.  However, the Court should retain jurisdiction for up to five (5) years to allow review of the permanent maintenance award.

 

The parties' failure to build a sufficient record either for or against rehabilitation led to the district court's order of "permanent" maintenance with a reservation of jurisdiction.  The district court's use of the word "permanent" is inconsistent with its apparent need to reserve jurisdiction.  When a court awards permanent maintenance, it does not have to state that it "retains jurisdiction."  Unless the parties and the district court together adopt as part of the judgment and decree provisions providing that future jurisdiction is divested (not an issue here), district courts always retain jurisdiction to hear later motions to modify upward or downward.  See Minn. Stat. § 518.552, subd. 3 (2000) (stating awards of permanent maintenance are to be left open for later modification).  Based on the five-year time frame for "permanent maintenance," and the court's statement of intent not to award permanent maintenance, we are left with the inescapable inference from the record that the district court intended to grant five years temporary maintenance.  But we are looking at the district court's choice of the phrase "permanent maintenance" in the November order.  Thus, the need for a remand.   

We reject respondent's argument that "it is clear" the district court intended to award permanent maintenance and that the record's only flaw is the court's "murky" comments about temporary maintenance.  Rather, we conclude that it is clear that at one point, the district court did not intend to award permanent maintenance and said so.  What is "murky," to use respondent's expression, is the district court's use of the word "permanent" before the word maintenance when it specifically follows the grant of maintenance with a five-year reservation of jurisdiction.

Thus, on this issue we reverse and remand to the district court with the instruction to make it clear whether it intended to order five years temporary maintenance or true permanent maintenance.  If it was its intention to order true permanent maintenance, the court should so state and give its reasons.  If it is the court's intention to grant temporary maintenance for a term of years, it should so state and give its reasons.

Because we reverse and remand for clarification on the issue of maintenance, we do not address respondent's arguments challenging the job-search requirement and retention of jurisdiction.

            Reversed and remanded.