This opinion will be unpublished and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

C6-01-275

 

Kathleen Ann Ryan,

petitioner,

Appellant,

 

vs.

 

Patrick C. Ryan,

Respondent.

 

Filed September 18, 2001

Affirmed
Klaphake, Judge

 

Dakota County District Court

File No. F39015926

 

Candace J. Barr, John M. Jerabek, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 700, Minneapolis, MN† 55402-1110 (for appellant)

 

Christine L. Stroemer, Jennifer A. Jameson, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Building, 332 Minnesota Street, St. Paul, MN† 55101 (for respondent)

 

††††††††††† 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

††††††††††† Appellant Kathleen Ryan challenges the district courtís order reducing her permanent spousal maintenance from $1,852 to $750 per month.† She alleges that respondent Patrick Ryan retired in bad faith in order to reduce his maintenance obligation, that no change in circumstances occurred to justify the reduction, and that the district court improperly penalized her for depletion of her own retirement funds.† Because the record supports the decision of the district court, we find no abuse of discretion and affirm.

D E C I S I O N

††††††††††† The district court is given broad discretion in determining a maintenance award, and its determination will not be set aside absent an abuse of discretion.† Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).† An abuse of discretion occurs when the district courtís award of maintenance is ďagainst logic and the facts on record.Ē† Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001) (quotation omitted).† A district courtís findings of fact will not be set aside unless clearly erroneous.† Id.† ďA finding is clearly erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.Ē† Id. (quotation omitted).† This court views the evidence in a light most favorable to the district courtís findings and may not substitute its judgment simply because the record would support more than one reasonable conclusion.† Id.

††††††††††† In order to modify an award of permanent maintenance, the moving party must show a substantial change in circumstances that renders the award unfair and unreasonable.† Minn. Stat. ß 518.64, subd. 2 (2000); Richards v. Richards, 472 N.W.2d 162, 164 (Minn. App. 1991).† Substantially increased or decreased earnings of the obligor can be grounds for modification of a maintenance award.† Id.

The essential consideration in the award of maintenance is the financial need of the party receiving maintenance and his or her ability to meet that need balanced against the financial condition of the spouse providing the maintenance.†

 

Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992) (citation omitted), review denied (Minn. Mar. 19, 1992).

††††††††††† The district court found that respondentís reasonable monthly expenses had increased from approximately $2,500 per month at the time of the dissolution to $3,800 per month at the time of the motion to modify.† Appellantís expenses, on the other hand, were basically static, remaining at $2,500 to $2,800 per month.† The district court further found that respondentís net income had decreased from $4,770 net per month to $3,200 to $3,500 per month.† Appellant has not challenged these findings.

††††††††††† †In addition, respondentís net monthly income totals approximately $2,100, if the funds attributable to his pension, which was awarded to him as marital property, are excluded.† Pensions awarded as marital property, and not treated in the initial decree as an income stream, are excluded from consideration as income until the payments received are actuarially equivalent to the original amount awarded.† See Kruschel v. Kruschel, 419 N.W.2d 119, 122-23 (Minn. App. 1988).† The district court found that $450,000 of the $776,000 pension represented the marital property award plus passive appreciation attributable to market forces, rather than active investment.† Applying Kruschel, the court concluded that respondent had shown a substantial decrease in income that rendered the original order unreasonable and unfair.† Based on the facts in the record, this was not an abuse of discretion.

††††††††††† Appellant argues that a party may not in bad faith create a change in circumstances and suggests that respondent retired in an attempt to defeat her maintenance award.† There is no support in the record for this claim.† In the case of an early retirement, the court considers the

obligorís health and employment history, the availability of and expectations regarding early retirement at the time of the divorce, and the prevailing managerial policies and economic conditions at the time of retirement, together with whatever subjective reasons the obligor may offer.

 

Richards, 472 N.W.2d at 165.† Respondent has faithfully paid maintenance for nine years; his retirement was contemplated at the time the parties separated; and his retirement position would be compromised by changes in his employerís retirement program if he continued to work.† These factors support the district courtís decision.

††††††††††† Appellant asserts that the district court erred in imputing income to her because of the depletion of retirement assets awarded to her under the original judgment.† A court may impute income to a maintenance obligee.† Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (award of temporary maintenance modified to permanent because of failure to rehabilitate, but permanent maintenance reduced because of lack of reasonable effort).† A court may not penalize a homemaker who continues to work part time in the type of employment position held before dissolution where there is no evidence of intent to reduce income in order to receive maintenance.† Maurer v. Maurer, 607 N.W.2d 176, 180-81 (Minn. App. 2000), revíd on other grounds 623 N.W.2d 604 (Minn. 2001); Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997).

††††††††††† During the marriage and after the dissolution, from 1992 to 1996, appellant worked a variety of jobs, some of which were full time.† In the opinion of a vocational counselor, appellant is capable of continuing to work at these entry-level jobs, earning $7.00 to $9.00 per hour.† The court imputed annual gross income of $9,000 to appellant, relying on the vocational counselorís assessment of her abilities and opinion that appellant could earn this amount while working the same type of jobs she worked at during and just after the marriage.† The record supports these findings, and the courtís decision is not an abuse of discretion.

††††††††††† Although appellant has some serious health problems, she has not been limited from seeking employment by medical orders.[1]† In †Prahl, 627 N.W.2d at 702-03, this court affirmed a district courtís decision to deny maintenance to a party, despite his diagnosis of hepatitis C, because no limitation had been placed on his ability to work.† This court did, however, remand the issue of whether the right to maintenance should be reserved in light of the partyís serious medical condition.† Id. at 703-04.† Here, appellant continues to receive permanent maintenance, subject to modification should circumstances change.† The courtís decision to impute income to her is not an abuse of discretion.

††††††††††† Whether to award attorney fees is a matter within the discretion of the district court and that decision will not be reversed absent an abuse of discretion.† Maeder, 480 N.W.2d at 680.† The court concluded that respondentís motion to reduce the maintenance award was not frivolous and that appellant has the ability to pay her own attorney fees, based on the funds in her retirement account.† This decision is supported by the record and thus is not an abuse of discretion.

††††††††††† Affirmed.



[1] Following the deposition where appellant admitted that she had not been limited from working, she did present a letter from her psychiatrist stating that she was incapable of any employment.