This opinion will be unpublished and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

CX-01-537

 

Kurt Douglas Gullickson, petitioner,

Appellant,

 

vs.

 

Lucy Lee Gullickson,

Respondent.

 

Filed August 21, 2001

Affirmed

Willis, Judge

 

Hennepin County District Court

File No. DC231503

 

Andrew M. Silverstein, 300 Anchor Bank Building, 1055 East Wayzata Boulevard, Wayzata, MN  55391 (for appellant)

 

Donald J. Fraley, 320 Anchor Bank Building, 1055 East Wayzata Boulevard, Wayzata, MN  55391 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Willis, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant alleges that the district court abused its discretion by denying his motion to reduce his spousal-maintenance obligation.  He asserts that (1) his injuries have caused his income to decrease, (2) the district court erroneously understated what appellant’s income had been at the time judgment was entered, and (3) the district court failed to make a finding regarding respondent’s reasonable monthly living expenses.  Because appellant has failed to show a substantial change in circumstances, we affirm.

FACTS

Appellant Kurt Gullickson and respondent Lucy Gullickson dissolved their marriage in March 1998.  The parties agreed that appellant would pay respondent $600 per month in spousal maintenance.  Included in the stipulated judgment were appellant’s contention that he earned $1,350 per month for the first two months of 1998 and a finding from a previous, unrelated order that appellant earned $4,000 per month during the first four months of 1997.

In 1999, while appellant, who is a carpenter, was in Arkansas caring for his terminally ill father, he fell from the roof of a house he was building for himself, severely injuring his leg.  Appellant claims that he was unable to work for six months thereafter.  Because of his injuries and related medical conditions, appellant moved for termination of or, in the alternative, a reduction of his spousal-maintenance obligation, claiming that his income has decreased since the dissolution.  A family court referee found that (1) although appellant was unemployed while caring for his father, his father paid him $2,000 per month; (2) appellant had remarried and did not “state that he is unable to maintain” the monthly expenses he shares with his current wife; (3) appellant is currently employed at “Metro Handyman” and works 40 hours per week, although with difficulty; (4) his present gross monthly income is $2,200, and at the time that the original award was established his gross monthly income was $1,350; (5) appellant owns real property in Minnesota and Arkansas; and (6) appellant’s “income situation” is essentially the same as it was at the time of the dissolution, and he is still able to be gainfully employed.  The referee concluded that appellant has failed to demonstrate that there has been a substantial change in circumstances.

The district court adopted the referee’s order.  Appellant moved for amended findings, but the motion was denied because it was not timely filed.  This appeal is from the denial of appellant’s motion to terminate or reduce his spousal-maintenance obligation.

D E C I S I O N

Appellant argues that the district court abused its discretion by (1) failing to find a substantial decrease in appellant’s income where evidence showed that his physical condition impaired his earning ability and (2) making an erroneous finding regarding what his income was at the time judgment was entered.  Appellant also asserts that the district court erred by failing to determine respondent’s current living expenses.

Modification of spousal maintenance is within the district court’s broad discretion, and reviewing courts will not reverse absent an abuse of that discretion.  Ganyo v. Engen, 446 N.W.2d 683, 686 (Minn. App. 1989).  An abuse of discretion occurs when the district court reaches a “clearly erroneous conclusion that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  Further, the court’s findings of fact will not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01.

The moving party bears the burden of demonstrating that a substantial change in circumstances has occurred and, if so, that the change in circumstances has rendered the original maintenance award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2000); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

I.

Appellant argues that the district court failed to consider the deterioration of his health and earning capacity in its determination that there was not a substantial change in circumstances.  Deterioration of a party’s health may constitute a changed circumstance for purposes of spousal-maintenance modification.  Rydell v. Rydell, 310 N.W.2d 112, 115 (Minn. 1981).  But appellant produced no documentation, such as tax returns or bank records, to show what his net monthly income is and, therefore, whether it has substantially decreased since the judgment was entered in 1998.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (noting party “cannot complain” when his own failure to produce documentation leads, at least in part, to denial of motion to modify maintenance).  The district court correctly found that appellant had not demonstrated a substantial change in his circumstances rendering the original maintenance award unreasonable and unfair.

Appellant also contends that the district court failed to take his injuries into account.  But the court found that (1) appellant had shattered his tibia, broken his fibula and ankle, and had a rod and several pins surgically inserted into his leg; (2) an affidavit submitted by a medical doctor states that appellant has “sustained significant orthopedic injuries” and has chronic ankle inflammation; (3) appellant’s chiropractor believes that appellant’s condition is “permanent and progressive” and that his condition will worsen over time; and (4) appellant works 40 hours per week, although with difficulty.

Based on the evidence, the district court did not abuse its discretion in denying appellant’s motion because appellant failed to meet his burden of proving both that there was a substantial change in circumstances and that the original award was unreasonable and unfair.  Cf. id. (concluding that even though findings do not include detailed analysis of appellant’s financial condition, he failed to present complete picture of his assets, making such findings impossible).

II.

Appellant argues that, in determining whether there had been a substantial change in circumstances, the district court erred in finding that appellant’s monthly income in March 1998 was $1,350.  The judgment included the following findings, which the court based on the representations of the parties:  (1) in January and February of 1998, appellant grossed $1,350 per month, (2) the amount of appellant’s work fluctuates, (3) appellant has additional income from other sources, and (4) for the first four months of 1997, appellant’s monthly income was $4,000.

Appellant argues that when judgment was entered his income was closer to $4,000 per month than $1,350 per month.  But the judgment shows that the court had before it a June 1997 order of a family court referee concluding that appellant’s income was $4,000 per month for the first four months of 1997 and appellant’s own representation that for the two months immediately preceding the entry of judgment in 1998, he earned $1,350 per month.  Thus, the district court’s finding here is not clearly erroneous.

III.

Appellant’s final assertion is that the district court erred by failing to make a finding regarding respondent’s monthly living expenses.  He argues that the court did not make such a finding because “respondent failed to provide the trial court with verification of her current monthly living expenses.”  But appellant bears the burden of showing that there has been a substantial change in circumstances.  Minn. Stat. § 518.64, subd. 2(a); Hecker, 568 N.W.2d at 709.  Appellant failed to provide any documentation regarding the parties’ current financial situations.  See Tuthill, 399 N.W.2d at 232.

Affirmed.



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