This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Avron S. Rosenberg, petitioner,
Geraldine E. Rosenberg,
Hennepin County District Court
File No. DC97639
Susan M. Lach, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South 5th Street, Minneapolis, MN 55402-4218 (for respondent)
Geraldine E. Rosenberg, 6825 Harold Avenue, Golden Valley, MN 55427 (appellant pro se)
††††††††††† Considered and decided by Shumaker, Presiding Judge, Halbrooks, Judge, and Stoneburner, Judge.
††††††††††† Appellant challenges the district courtís order to limit the modification of her maintenance award to a consumer-price-index adjustment, arguing that the court abused its discretion by (1) failing to apply the appropriate factors under Minn. Stat. ß 518.64 (Supp. 2001), (2) denying a portion of appellantís requests for additional discovery, and (3) denying appellantís request for attorney fees and sanctions.† Appellant also contends that the district court acted in a biased manner.† Because we find that the district court acted within its discretion, we affirm.
††††††††††† The marriage of respondent Avron Rosenberg and appellant Geraldine Rosenberg was dissolved in 1984 after 21 years.† The dissolution court found that respondent had income of $65,000 per year and had monthly expenses of $2,688, while appellant had monthly expenses of $3,000.† The court further found that it was improbable that appellant could be self-supporting due to multiple health problems.† Accordingly, the dissolution court awarded appellant $700 per month for maintenance.
††††††††††† On March 18, 1996, appellant brought a motion to modify the maintenance award.† The district court increased appellantís maintenance award to $1,500 because she (1) had not had a cost-of-living increase in the 12 years since the judgment and decree, (2) had increased real-estate taxes and health-insurance costs, (3) was forced to invade the principal of her property settlement to meet her needs, and (4) was making only $22,000-$32,000 compared to respondentís $93,000.
††††††††††† Both parties appealed from the order.† This court affirmed in part, reversed in part, and remanded for additional findings on the partiesí monthly expenses, their abilities to meet those needs, and respondentís income.† Rosenberg v. Rosenberg, No. C2-97-848, 1997 WL 729220 (Minn. App. Nov. 25, 1997).† On remand, the district court issued an amended order, finding that respondentís monthly income and expenses were $5,600 and $2,847, respectively, while appellantís monthly income and expenses totaled $1,650 and $3,000, respectively.† The court also found that respondentís business had significant retained earnings and that respondent could pay himself a higher salary, if he so desired.† Based on those findings, the court increased appellantís maintenance from $1,500 to $2,000 per month, retroactive to January 1997.
††††††††††† Respondent appealed again.† On review, we remanded for additional findings on whether or not respondentís salary accurately reflected his income or whether earnings retained in the business should be imputed as income to respondent.† Rosenberg v. Rosenberg, No. C6-99-971 (Minn. App. Nov. 2, 1999) (order op.).† We concluded that the partiesí needs had not changed and that respondentís income had decreased.† But we noted on remand that, should the district court determine that the businessís retained earnings were imputable as personal income to respondent, that the district court should then consider whether or not a substantial change in circumstances had occurred that rendered the original maintenance award unfair or unreasonable.† Id.†
††††††††††† Before the remand hearing, the judge originally assigned to the modification motion retired and the case was reassigned.† Both parties requested attorney fees and appellant moved to compel certain discovery requests from respondent.† The district court noted that respondent had already produced tax documents, submitted to a deposition, and allowed appellant to review his business records.† The district court denied appellantís requests to examine respondentís computer hard drive and for signed authorizations directed to respondentís business associates.
††††††††††† Following an examination of respondentís income and retained business earnings, the district court concluded that respondentís income had not increased.† But the court did find a substantial change in circumstances rendering the original maintenance obligation unfair and unreasonable based on its finding that appellant had not had a cost-of-living increase in what was then 16 years since the judgment and decree.† The court granted a cost-of-living adjustment (COLA) to the original award of $700 per month, retroactive to April 1, 1997.† This adjustment brought the monthly maintenance to $1,081 for 1997 and $1,222 in 1999.† Given that both of these figures were less than respondent had been paying appellant since April 1997, the ruling resulted in a credit of $32,494 to respondent that is to be deducted from the $150,000 that respondent owes appellant upon his motherís death.† The court also ruled that appellant is entitled to future CPI adjustments every two years beginning April 1, 2001.†
The court denied appellantís request for further discovery on the grounds that appellant had no basis to question respondentís customers or shippers and no right to require respondent to divulge personal information from his computer.† Finally, the court denied both partiesí requests for attorney fees because it could not determine from the record if one or both parties contributed unreasonably to the length and expense of the case over the four years of appeals and remands.
††††††††††† Appellant then made a motion for a new trial or amended findings of fact and conclusions of law, and filed an appeal with this court.† We dismissed the appeal as being premature, given the pendency of a motion before the district court.† The district court issued an amended order on May 4, 2001.† The court denied appellantís motion for new trial and amended only two findings from its December 14, 2000 order ó No. 5, which the court amended to find that it would not be appropriate to impute respondentís companyís retained earnings to him as personal income, because respondent presented evidence that he exercised reasonable business judgment for keeping the income in the business; and No. 6, which corrected historical income figures for respondent to correspond to the unchallenged figures from the dissolution judgment and decree.† The court then adjusted respondentís corrected income figures by the consumer-price-index (CPI) changes since 1984 and concluded that there had not been a substantial change in respondentís income since the judgment and decree to render the original maintenance award unfair or unreasonable.† The court also found that appellant had had adequate discovery and that her requests for further discovery were too conjectural.† This appeal follows.
D E C I S I O N
Appellant alleges that the district court abused its discretion in limiting the maintenance modification to a CPI adjustment.† Appellant argues that the district court erred by failing to consider the factors set forth in Minn. Stat. ß 518.552, subd. 2 (2000), specifically her financial resources, inability to be self-supporting, and the relatively high standard of living established during the partiesí marriage.† She also contends that the court failed to consider her increased budget (although she concedes that the budget has increased by the CPI, the factor by which her maintenance was increased).† Finally, she states that the court should have looked at her advancing age, declining health, and other factors that mandate increased maintenance support.† This court will not reverse a spousal maintenance award absent an abuse of discretion.† Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).
When reviewing decisions rendered on remand, this court only looks at those matters properly raised.† Citizenís Natíl Bank of Willmar v. Taylor, 387 N.W.2d 451, 452 (Minn. App. 1986).† Thus, an ďinquiry as to the propriety of the trial courtís permanent maintenance award must necessarily begin with an examination of the trial courtís responsibility on remand.Ē† Duffey v. Duffey, 432 N.W.2d 473, 475-76 (Minn. App. 1988).† Here, the only question for the district court on remand was whether or not the retained earnings from respondentís business should be imputed to him personally.† Thus, we focus our review on the district courtís determination on that issue and do not address appellantís broader claims regarding statutory factors such as age, health, etc.
In its order of December 14, 2000, and the amended order of May 4, 2001, the district court found that none of the retained earnings from respondentís business should be imputed to him as personal income, because there were valid business reasons to support the decision to retain earnings.† The courtís finding is supported by the affidavit of Gary M. Lieberman, respondentís CPA.† Lieberman stated that it was a prudent business decision to retain the funds for future growth in areas such as physical structures and equipment.† In addition, Lieberman stated that he had advised respondent, then 66 years old and working full-time, to hire an employee to assist him and provide for business continuity.† Because respondent presented a reasonable basis for the decision to retain earnings in the business, and appellant had had no involvement in the company and offered nothing more than conjecture for her contention that respondent was acting inappropriately, the district court concluded that there had been no substantial change in circumstances.† A modification was, therefore, inappropriate.† But the court did find that a CPI adjustment to the original award of $700 was justified and increased appellantís monthly maintenance award to reflect that adjustment.
The district court properly relied on Liebermanís affidavit in its finding on this issue.† The court found that credible business reasons had been presented for keeping the earnings in the company.† Appellantís assertions to the contrary are unsupported by evidence and rest solely on speculation.† The district court was well within its discretion to limit the modification to a CPI adjustment.
††††††††††† Appellant also argues that the district court abused its discretion in making the modification retroactive to April 1997 instead of March 1996, the date she filed her motion for maintenance modification.† Giving retroactive effect to a modified maintenance award under Minn. Stat. ß 518.64, subd. 2(d) (Supp. 2001), is within the discretion of district court and will not be reversed absent an abuse of that discretion.† Kemp v. Kemp, 608 N.W.2d 916, 920 (Minn. App. 2000).
Minn. Stat. ß 518.64, subd. 2(d), provides as follows:
A modification of support or maintenance * * * may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party * * * .
††††††††††† In its March 27, 1997 order, the district court increased appellantís maintenance award to $1,500, effective April 1, 1997.† When that order was reversed and remanded by this court, the district court increased the award to $2,000 and made it retroactive to January 1, 1997.† That order was also reversed and remanded.† The order with which we are now concerned increased appellantís monthly maintenance to reflect the CPI, but made it retroactive only to the original date of April 1, 1997.
††††††††††† Because the statutory language is permissive and not mandatory, retroactive support need not be awarded.† See id.† But if awarded, a modification can be given retroactive effect.† Id.† Within the limitations of the statute, a court has discretion in setting the effective date of any modification.† Kemp, 608 N.W.2d at 920.
††††††††††† In the most recent order, the district court chose not to make the award retroactive to March 18, 1996, the date appellantís motion was filed and served.† Instead, the court opted to use April 1, 1997, the effective date of the first order for modification.† This decision was made by a different district court judge following a thorough re-examination of the evidence.† We find nothing to suggest that the court abused its discretion in so limiting the retroactive effect of the change.
††††††††††† Appellant further claims that the district court abused its discretion by denying a portion of her discovery requests.† A decision to grant or deny a motion to compel discovery will not be reversed absent a clear abuse of discretion.† Shetka v. Kueppers, Kueppers, Von Feldt & Salmon, 454 N.W.2d 916, 921 (Minn. 1990).† Thus, we examine the record only to see if the district court acted in an arbitrary or capricious manner.† Almor Corp. v. County of Hennepin, 566 N.W.2d 696, 701 (Minn. 1997).
Prior to the last remand hearing, the district court granted appellantís requests to (1) examine documents at respondentís business, (2) receive copies of respondentís income-tax returns, and (3) take respondentís deposition.† The court denied appellantís requests for signed authorizations directed to respondentís business associates and to examine respondentís computer hard drive on the ground that these requests were too conjectural.
The district court found that appellant had had adequate discovery and that, although the parties had discovery disputes throughout the caseís lengthy history, respondent had ďsubstantially compliedĒ with appellantís requests by October 2000. †The court found that appellantís requests for signed authorizations and access to respondentís business computerís hard drive were invasive and based on conjecture arising out of her attorneyís limited personal observation of packages being shipped from respondentís business on a cash-on-delivery (COD) basis.† This is not a case where appellant was denied an adequate opportunity to conduct discovery.† See Ciriacy v. Ciriacy, 431 N.W.2d 596, 599-600 (Minn. App. 1988) (finding an abuse of discretion when the denial prevented a wife from having a chance to credibly dispute her husbandís claimed business income).† Nothing in the record suggests that the district court acted in an arbitrary or capricious manner in denying a portion of appellantís discovery requests.†
Appellant also argues that the court abused its discretion in denying her request for attorney fees.† The district court has wide discretion to grant attorney fees under Minn. Stat. ß 518.14, subd. 1 (2000), and our standard of review is, again, abuse of discretion.† Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998).†
Appellant moved for attorney fees on June 27, 2000, seeking ď[s]anctions against [respondent] in an amount equal to the attorney fees paid to [appellantís attorneys].Ē† She supported this position in a later affidavit where she said that respondentís ďprocrastination and lack of cooperation have caused excessive legal fees.Ē† The district court denied appellantís request, citing the drawn-out nature of the case as preventing it from determining if one party was more culpable than the other.
Based on our review of the record, the district court did not abuse its discretion in its denial of attorney fees.† The district court had the opportunity to observe the parties and listen to arguments on multiple occasions.† We find nothing to suggest that the district court was, in any way, arbitrary or capricious in its ruling on this issue.
Finally, appellant asserts that the district court exhibited bias in respondentís favor.† Because appellant failed to raise this issue before the district court, we could decline to address it.† Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988); see also Gummow v. Gummow, 375 N.W.2d 30, 34 (Minn. App. 1985) (holding that appellants may not raise the issue of judicial bias for the first time on appeal).† But, given the protracted nature of this litigation and the significant judicial resources invested in resolution of the partiesí disputes, we feel compelled to note that the record shows nothing but a fair and judicious approach by the district court.† Appellantís allegation is completely meritless.