This opinion will be unpublished and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

C7-01-169

 

In Re the Marriage of:

Gregory A. Biskey, petitioner,

Respondent,

 

vs.

 

Luanne E. Biskey,

Appellant.

 

Filed September 4, 2001

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

 

Anoka County District Court

File No. F1987702

 

Stephen M. Halsey, Suite 160, Paco Office Center, 7260 University Avenue, Fridley, MN 55432 (for respondent)

 

William D. Siegel, 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN 55433 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In this dissolution proceeding, appellant Luane Biskey contends that the district court erroneously awarded her temporary maintenance rather than permanent maintenance and erred by failing to order respondent Gregory Biskey to use proceeds from the sale of certain property to satisfy her awards of property and attorney fees.  Respondent failed to file a notice of review, but challenges the attorney fees awarded to appellant.  Because we conclude that permanent maintenance is statutorily mandated for this long-term, traditional marriage, we reverse the maintenance award and remand for the district court to reconsider the appropriate amount of permanent maintenance.  Because the district court did not abuse its discretion by declining to amend the judgment and decree to require respondent to use the sale proceeds from a post-decree property sale to satisfy appellant’s property and attorney fees awards, we affirm on that issue.  Because respondent failed to file a notice of review challenging the district court’s attorney fees award, we decline to address that issue.

D E C I S I O N

            1.            Maintenance Award

            Considering the standard of living attained by a couple during their marriage, a district court may award spousal maintenance if a spouse lacks sufficient property to provide for reasonable needs or if a spouse is unable to provide for self-support.  Minn. Stat. § 518.552, subd. 1(a), (b) (2000).  The court must also consider the “relevant” factors enumerated in Minn. Stat. § 518.552, subd. 2 (2000).  A court’s decision on whether to award maintenance is discretionary, and we will reverse only if the decision “is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); see Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

            Once a court concludes that maintenance is warranted, it must determine the appropriate duration and amount.  Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997).  When considering duration, the statute provides:

Nothing in this section shall be construed to favor a temporary award of maintenance over a permanent award, where the factors under subdivision 2 justify a permanent award.

Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.

 

Minn. Stat. § 518.552, subd. 3 (2000); see Minn. Stat. § 645.44. subd. 16 (2000) (legislation using term “shall” is mandatory).  In Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987), the supreme court stated that the maintenance statute “requires that uncertainty [of self-sufficiency] * * * be met by an award of permanent maintenance with the order left open for later modification.”  Minnesota case law has consistently followed the interpretation of Minn. Stat. § 518.552, subd. 3, set forth in NardiniSee, e.g., Hecker v. Hecker, 568 N.W.2d 705, 709 n.2 (Minn. 1997); Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990).        

            We conclude that the court failed to follow the statutory mandate of Minn. Stat. § 518.552, subd. 3, by awarding appellant temporary maintenance for one year and retaining jurisdiction to ultimately determine whether to award temporary or permanent maintenance.  This case involves facts that constitute a classic case justifying an award of permanent maintenance:  (1) the parties were married for 24 years; (2) appellant was a traditional homemaker, has little education and few job skills, and has serious health problems; and (3) respondent has the ability to pay maintenance.  The district court’s finding on appellant’s health expresses uncertainty as to whether she will ever be physically able to work, stating, “it is unclear” whether her physical problems are related to her emotional condition and whether her physical and emotional problems may subside after the dissolution.  Where, as here, there is “uncertainty as to the necessity of a permanent award,” the statute clearly mandates an award of permanent maintenance subject to later modification.  Minn. Stat. § 518.552, subd. 3.  Thus, the district court erroneously awarded temporary maintenance rather than permanent maintenance.  We reverse and remand to the district court to consider the appropriate amount of permanent maintenance, as the temporary maintenance awarded may differ from a permanent award.[1]

            2.            Distribution of Business Sale Proceeds 

            Appellant next contends that the district court abused its discretion by denying her posttrial motion seeking to recover the $20,556.25 obtained by respondent after he sold his business, Randall Brothers, Inc.  With regard to the sale, the decree states:

Said business has been sold with a closing to occur shortly.  The parties agreed to divide the cash proceeds, anticipated to be approximately $6,000.00, between the parties’ attorneys.  The $35,000.00 contract for deed requires payments of $394.00 per month for two years, with the remainder due at the end of the two-year period. 

 

In another finding, the court ordered respondent to pay $10,000 of appellant’s attorney fees. 

            In support of her motion for amended findings, appellant alleged by affidavit that the sale contemplated in the decree fell through and that respondent sold the business to another buyer for $43,717.43 five days after the decree was entered.  Appellant sought to recover half of the sale proceeds to satisfy a portion of the amount respondent owed her in order to equalize their respective property awards, including the $10,000 in attorney fees that the decree ordered him to pay.  Appellant claimed that because respondent had funds available to satisfy the property award much earlier than the two-year period contemplated in the original decree, he should be ordered to satisfy the award immediately. 

            “A trial court has broad discretion in dividing property upon dissolution of a marriage.”  Maurer v. Maurer, 623 N.W.2d 604, 606 (Minn. 2001) (citation omitted).  This court will reverse a district court’s property division only if the division constitutes an abuse of discretion.  See Rutten, 347 N.W.2d at 50.  Here, the court did not abuse its discretion by denying appellant’s request to alter the terms of the original decree to require respondent to immediately pay a portion of appellant’s property equalization award.  The net assets awarded to each party in the decree amounted to $228,463.50.  While some of the assets awarded to appellant were not immediately liquid, others were, and these assets could be applied to begin to satisfy her debts, including her attorney fees.  Further, while respondent was awarded more property in the dissolution, he was also awarded more debt.  Under these circumstances, we cannot conclude that the district court’s refusal to alter the terms of its property division constituted an abuse of discretion.

            3.            Attorney Fees Award 

            Respondent contends that the district court abused its discretion in awarding attorney fees to appellant.  Because respondent did not file a notice of review to this court before raising this issue, we decline to consider it.  See Martin v. Martin, 401 N.W.2d 107, 108 n.1 (Minn. App. 1987) (declining to review wife’s challenge to property division where wife failed to file notice of review); Maher v. Maher, 393 N.W.2d 190, 191 (Minn. App. 1986) (same).         

            Affirmed in part, reversed in part, and remanded.



[1]            Respondent contends that the record does not support a permanent maintenance award because appellant offered evidence on her health problems that included only her own testimony and small portions of her medical records.  We are satisfied that appellant sufficiently established her medical problems.  She testified extensively on her reoccurring mental health problems, lupus, arthritis, migraine headaches, and foot deformity.  Respondent did not contest the existence, severity, or duration of these problems.  The documentary evidence includes a portion of a history and physical taken by Dr. Myron Malecha on December 22, 1999, which indicates a “diagnostic impression” of major depression, recurrent with severe symptoms, lupus with arthritic pain, and migraine headaches.  The documentary evidence also includes a letter from Dr. Walter Dorman of Arthritis and Rheumatology Consultants that states that appellant is under his care “for the treatment of connective tissue disease.”