This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







In Re the Marriage of:

Thomas W. Jones, petitioner,





Karen Gay Cronquist Jones,




Filed March 26, 2002


Crippen, Judge


Ramsey County District Court

File No. DMF2991157


Ronald J. Riach, Franke & Riach, P.A., 1000 County Road E West, Suite 200, Shoreview, MN 55126 (for appellant)


Ann Megathlin Gifford, 4016 Linden Hills Boulevard, Minneapolis, MN 55410 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the trial court’s exercise of discretion in its award of permanent spousal maintenance to respondent.  Because appellant has failed to show that the court abused its discretion in determining that an award of permanent maintenance was appropriate, and because the court’s finding that it is uncertain whether respondent will become self-supporting is not clearly erroneous, we affirm.


            After 32 years of marriage, appellant Thomas Jones, now 56 years old, and respondent Karen Jones, now 55 years old, divorced in March 2001.  In determining whether spousal maintenance was appropriate, the trial court found that “[r]espondent lacks sufficient income and assets to provide for her reasonable needs, and it is uncertain whether she will become self-supporting.”  The court awarded respondent permanent monthly maintenance of $1,705. 

            Appellant is an astronomy professor at the University of Minnesota.  Respondent was a homemaker, mother to the parties’ now 22-year-old son, and a student during most of the marriage.  Respondent received a Ph.D. in zoology from the University of Minnesota but has not been in the labor market most of her life, engaging only in part-time or temporary work.  Once appellant notified respondent that he wanted a divorce, respondent began searching for employment and obtained her current position as lead floor supervisor at the Science Museum of Minnesota, where she earns $9.80 per hour and works 30-34 hours per week. 

            The court considered whether respondent could use her recently earned degree to better financial advantage if she aggressively pursued a nationwide search for a college teaching position.  But the court acknowledged respondent’s love of her current employment and her lack of interest or training for a teaching career and found that, at “the ‘advanced’ working age of 54, and with her interests, degree, and experience, she will never reach full Ph.D. earning potential.”  The court determined that

Respondent is not unjustifiably self-limiting her income.  Her career pursuits have always been compromised by other responsibilities and interests, such as the advancement of Petitioner’s career, and being a homemaker. * * * The Court concludes that Respondent has not chosen her career path for litigation advantage, and it would be unreasonable to expect or require Respondent to change jobs or career, or to relocate to another area, in order for her to increase her income.


            Appellant sought a new trial or amended findings, arguing that the court “did not understand the significance of respondent’s Ph.D. in zoology” and abused its discretion in concluding that she had adequate employment.  The trial court denied appellant’s motion, determining that, while respondent’s Ph.D. in zoology was an impressive factor, it could not solely be determinative on the issue of spousal maintenance. 


Appellant contends that the trial court abused its discretion by awarding permanent maintenance to respondent.  We review a trial court’s maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  For this court to conclude that the trial court abused its broad discretion with respect to an award of spousal maintenance, the trial court’s findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  Maintenance-related findings of fact must be upheld unless they are clearly erroneous.  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989) (citation omitted). 

Spousal maintenance is an award from a divorce proceeding of “payments from the future income or earnings of one spouse for the support and maintenance of the other.”  Minn. Stat. § 518.54, subd. 3 (2000).  A court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance lacks sufficient resources to meet his or her needs and is unable to provide adequate self-support.  Minn. Stat. § 518.552, subd. 1(b) (2000).  When the court has deemed that maintenance is appropriate, the amount and duration of the award, temporary or permanent, are determined by the eight enumerated factors in Minn Stat. § 518.552, subd. 2 (2000), including the financial resources of the parties and the spouse’s contribution as a homemaker in furtherance of the other party’s employment.  Id., subd. 2(a), (h) (2000).  The statute explicitly provides that “[n]othing in this section shall be construed to favor a temporary award of maintenance over a permanent award” when the factors in subdivision 2 warrant a permanent award, and “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.”  Id., subd. 3 (2000).

Fundamentally, appellant argues that the court abused its discretion by applying an incorrect standard to determine the appropriateness of spousal maintenance, assessing whether respondent is “unwilling” to provide adequate self-support rather than “unable” to provide such support.  Under the correct standard, appellant contends that respondent is able to support herself if she pursued a career other than staying in the “low paying job at the Science Museum which she enjoys.”  See Bourassa v. Bourassa, 481 N.W.2d 113, 116 (Minn. App. 1992) (for maintenance to be based on earning capacity there must be a finding that the obligor is underemployed in bad faith).  A court may not find bad faith underemployment where

a homemaker has continued to work the same part-time hours at the time of dissolution as she did during the marriage, has been employed in the same type of position as she was during the marriage, and where there is no evidence of any intent to reduce income for the purposes of obtaining maintenance.


Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997).

Appellant attributes to the trial court a finding that respondent is unwilling to get better employment, but this was not the court’s determination.  The court’s findings confront the reality that respondent is highly educated but recite circumstances, especially respondent’s age and the absence of prior opportunities to pursue employment, that make her education less valuable than otherwise might be expected.  The court’s findings state that respondent is not “unjustifiably self-limiting her income” and chose her current employment and career in good faith.  And the court found that, during the marriage, respondent was a homemaker who compromised her career pursuits for the advancement of appellant’s career.  The court found that respondent previously only worked part time or short term and that she has not been in the labor market on a full-time basis for most of her life.  It is not evident that the trial court abandoned the statutory standard of determining if a spouse is unable to provide adequate support. 

Appellant also argues that permanent maintenance is only applicable to traditional marriages and because respondent was not primarily a homemaker who lacked skills and education for a career outside the home, it is not appropriate here.  For support of his contention, appellant cites cases discussing the “exceptional-case” standard for permanent maintenance, including Gales v. Gales, 553 N.W.2d 416, 419 (Minn. 1996).  Before 1985, the maintenance statute was read as disfavoring permanent maintenance, and the appellate decisions made the existence of an “exceptional case” a prerequisite for an award of permanent maintenance.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 410 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000); see, e.g., McClelland v. McClelland, 359 N.W.2d 7, 10 (Minn. 1984) (holding that permanent maintenance awards are only appropriate in “exceptional cases” involving a dependent spouse with little likelihood of becoming self sufficient); see also Abuzzahab v. Abuzzahab, 359 N.W.2d 12, 16 (Minn. 1984) (reversing the trial court’s permanent-maintenance award finding that appellant is capable of self sufficiency, and therefore she did not fit the “special situation” of a dependent spouse who has a “traditional marriage”). 

Appellant’s reliance on Gales is misplaced because the supreme court since has explicitly warned that its holding did not resurrect McClelland’s “exceptional-case” standard.  Chamberlain, 615 N.W.2d at 411 (citing Dobrin, 569 N.W.2d at 201).  “In response to this court’s interpretation of the maintenance statute in McClelland and Abuzzahab,” the legislature in 1985 again amended the maintenance statute to clarify that temporary awards should not be favored over permanent awards.  Gales, 553 N.W.2d at 419 (citing Minn. Stat. § 518.552, subd. 3 (1985)).  Furthermore, “Dobrin also makes clear that permanent maintenance awards are considered in light of the factors set forth in Minn. Stat. § 518.552, subd. 2.”  Id.

Appellant relies on Dobrin to argue that any uncertainty regarding respondent’s self-sufficiency was created by her minimal efforts to find an adequate job.  See Dobrin, 569 N.W.2d at 203 (holding that if there was any uncertainty of self-sufficiency for the spouse seeking maintenance, it was created by her minimal efforts to obtain reemployment).  But in Dobrin the parties were only married for two and one-half years, and the spouse seeking maintenance was trained and experienced in the labor market and had only been absent from it for three years.  Id. at 202-03. 

Although appellant contends that respondent is trained for a teaching position, the record suggests that her teaching experience is minimal, she is not interested in such a position, and she would need further training to obtain a teaching position.  Moreover, there is no compelling case to measure the appropriateness of employment solely in terms of the capability for employment; the trial court’s determination of appropriate employment fairly focuses on what can be reasonably expected of the spouse, not what is the spouse’s optimum employment.  See Nardini v. Nardini, 414 N.W.2d 184, 197 (Minn. 1987) (concluding that being capable of employment and being appropriately employed are not synonymous, and recognizing that homemakers who have been absent from the labor market for a long period may not be regarded as having marketable skills); see also Coffel v. Coffel, 400 N.W.2d 371, 375 (Minn. App. 1987) (spouse seeking maintenance is not required to change vocations for a more lucrative position); Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985) (spouse seeking maintenance does not incur an obligation to increase her earning power through occupational retraining), review denied (Minn. Jan. 31, 1986).

The trial court found that it is uncertain whether respondent will become self-supporting because of her age, her long absence from the labor market, and her part-time employment history.  The record suggests that she is continually seeking advancement in her current job, but it is uncertain whether such positions will be available to her.  The court found that she is happy with her current employment and does not wish to relocate.  Although appellant is confident respondent can become self-supporting, he has not demonstrated that the court clearly erred in doubting whether respondent will be able to support herself. 

Underlying appellant’s argument is the contention that the court’s findings are not justified in light of his expert’s testimony, which suggested that respondent’s education has prepared her for high-professional jobs and teaching positions at universities, with an earning potential of $35,000 to $50,000, and that her current position at the Science Museum erodes her future capacity for employment.  Notwithstanding this testimony, there was adequate evidence for the trial court to make sufficient findings that demonstrate respondent’s more limited ability.  The court specifically found that, “[a]t the ‘advanced’ working age of 54, and with her interests, degree, and experience, she will never reach full Ph.D. earning potential” and that during the marriage, respondent’s “maximized earnings were never the objective of her employment.”  The evidence supporting this finding was sufficient to defeat a claim of clear error.

Appellant also disputes the trial court’s finding that respondent was a homemaker, arguing that she received a Ph.D., published numerous articles, and worked as an independent researcher for the Minnesota Zoo.  But her accomplishments during this time did not preclude her ability to be a homemaker as well.  This finding is not clearly erroneous.

In addition, appellant suggests that the court’s finding that respondent’s job search occurred in 1999 was clearly erroneous, because she also performed a nationwide search in 1996.  The record shows that the court did not ignore her nationwide search in 1996 but found the 1999 search relevant because it occurred after appellant informed respondent that he wanted a divorce, compelling respondent to seek permanent and self-supporting employment.  The court’s finding is not clearly erroneous.

Appellant also argues that the court erred by not addressing the determinative factors on permanent maintenance.  The record shows to the contrary.  The court’s findings, read in their entirety, show that the court considered all relevant factors for a permanent maintenance award.  At its root, appellant is merely suggesting again that the court overlooked respondent’s educational background in granting permanent maintenance, a contention that is not sustained by the record.

Finally, appellant questions the court’s determination as to the amount of permanent maintenance.  But again, appellant’s primary concern here is the court’s finding that respondent is not unjustifiably self-limiting her income.  The record does not demonstrate a clear error in the court’s determination of respondent’s needs.

Appellant also claims that the court overstated respondent’s needs by setting monthly maintenance at $1,705, because the award provides her with a $350 surplus.  But the court found that the surplus in her award will be substantially diminished or eliminated because of her tax consequences for receiving spousal maintenance.  This finding is not erroneous.