This opinion will be unpublished and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

C5-01-1286

 

In Re the Marriage of:

 

Chong Nan Tribby, petitioner,

Respondent,

 

vs.

 

Lawrence Thomas Tribby,

Appellant.

 

Filed February 5, 2002

Affirmed

Kalitowski, Judge

 

St. Louis County District Court

File No. F995600173

 

Timothy J. Helgesen, Legal Aid Society of Northeast Minnesota, 302 Ordean Building, Duluth, MN 55802 (for respondent)

 

Michael S. Husby, 915 U.S. Bank Place, Duluth, MN 55802 (for appellant)

 

            Considered and decided by Hanson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant, who is incarcerated at the Northeast Regional Correction Center with a release date of January 1, 2003, contends the district court erred by failing to modify his obligation to pay spousal maintenance based on his reduced income as a result of his incarceration.  We affirm.

D E C I S I O N

            A court may modify an award of spousal maintenance upon a showing of a party’s decreased earnings making the terms of the award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2000).  A decision to modify an award of spousal maintenance is within the substantial discretion of the district court.  Walker v. Walker, 553 N.W.2d 90, 93 (Minn. App. 1996). 

            It is not disputed that appellant’s earnings have decreased due to his incarceration.  But the district court did not find that this decrease in earnings made the prior maintenance award unreasonable and unfair.  Because there was evidence in the record regarding the significant disparate financial situations of appellant and respondent, we cannot say the district court abused its discretion by requiring appellant to continue to meet his maintenance obligation.

            Appellant also contends the district court erred by requiring him to pay maintenance out of some of the retirement accounts that were awarded to him as part of the property settlement in the dissolution of the parties’ marriage.  We disagree.  Generally, a maintenance obligor is not to be required to pay a maintenance obligation out of the obligor’s property settlement.  Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985).  If an obligor fails to pay an otherwise valid maintenance obligation, however, the district court has the discretion to determine how to meet that obligation.  See Minn. Stat. § 518.24 (2000) (stating in all cases when maintenance is ordered, upon failure to pay the court may sequester the personal estate or rents and profits from the real estate of an obligor who fails to meet his obligation).  The record indicates that appellant has continued to contribute to his retirement accounts since the dissolution and that the accounts have appreciated substantially since the dissolution.  We conclude that on these facts, the district court did not err by ordering that appellant’s maintenance obligation be paid from two of these accounts. 

Affirmed.