This opinion will be unpublished and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:

Nancy Reeves Sitek, petitioner,





Michael Joseph Sitek, III,




Filed March 5, 2002


Crippen, Judge


Hennepin County District Court

File No. DW225856



John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN  56273 (for appellant)


Gretchen S. Schellhas, Thomsen & Nybeck, P.A., Edinborough Corporate Center East, Suite 600, 3300 Edinborough Way, Edina, MN  55435-5962 (for respondent)


            Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N



            Appellant Nancy Sitek disputes the trial court’s downward modification of respondent Michael Sitek’s permanent spousal maintenance obligation, contending that she was not given adequate notice that final action in the proceedings might occur when the motion was set to be presented.  Because there is no merit to this contention, we affirm. 



            A second amended divorce judgment established respondent’s $4,000 per month permanent spousal maintenance obligation.  In 2001, respondent moved for relief from the obligation based on his loss of income.  In his amended motion, respondent asked the court to reserve his obligation until he obtained new employment “and at which time modifying * * * or reducing said amount to $2,500 per month.”  The notice of motion called for a hearing on June 18, 2001.  Evidently believing that only a short-term reservation of the obligation would be considered, counsel for appellant appeared without his client and did not serve responsive documents.  Through the date of the hearing, appellant had also failed to make timely responses to respondent’s discovery efforts.

            The trial court concluded that appellant was adequately notified that the modification proceedings would occur, and the court amended the parties’ judgment by reducing respondent’s maintenance obligation to $2,500 per month in conformity with the evidence before the court. 


            It is critical in defining the scope of this review to observe that appellant limits her appeal to the topic of process and asserts only that the trial court could not lawfully act on the motion before scheduling a second hearing at which both parties would present evidence on the modification question.  Appellant does not otherwise dispute the merits of the modification decision.  Moreover, appellant claims that she was deprived of a right under the law and does not maintain that the trial court abused its discretion in failing to continue the proceedings.

            Appellant argues that she was free to withhold evidence at the June 18 hearing and was entitled to present evidence at a later evidentiary hearing.  Appellant’s claim is based on the content of respondent’s amended motion and on appellant’s suggestion that the rule of law calls for a two-stage proceeding for maintenance modification—an initial hearing to determine whether the moving party’s claims would permit a permanent modification and then an evidentiary hearing that would permit the court’s final determination whether there was cause for a permanent modification.  


            Initially, we observe that the motion documents are adequate, as a matter of form, to present the proposition that the parties’ divorce judgment should be amended to modify respondent’s maintenance obligation to $2,500 per month.  As appellant acknowledges, the plain language of the amended motion calls for both an immediate cessation of maintenance payments (due to respondent’s unemployment) and a longer-term modification, either by reducing the obligation to $2,500 or by setting a figure in accordance with respondent’s decreased ability to pay. 

            The language used in the motion does not permit us to read into the document the proposal that one topic—an immediate cessation of maintenance payments—will be the topic of the scheduled hearing and the other topic—longer-term modification—would not be heard until later.  This is especially so because respondent previously disclosed in his affidavit to the court that he had obtained employment, thus presenting a question that went beyond the matter of a temporary suspension of payments. 

            Much of appellant’s argument on the construction of the motion documents involves respondent’s forward-looking request, adopted by the trial court in its final modification order, that appellant still answer respondent’s discovery requests.  But respondent’s request and the court’s prompt requirement for further disclosures in the aftermath of the modification do not inherently suggest that the modification would depend on later production of facts.  Rather, it is evident that respondent believes appellant has acquired property that reduces her need for maintenance, providing cause for another modification of his obligation.  The question whether appellant’s needs had decreased remained significant after the modification was granted because the trial court’s modification decision assumed appellant’s needs remained as they were when the $4,000 per month obligation was established.  In sum, there is no merit to appellant’s contention that the amended motion established no reason for either party to believe that a permanent modification would not be considered at the hearing. 


            In the alternative, appellant argues that under Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471 (Minn. 1981), if a moving party makes a prima facie case of substantial change in circumstances, then an evidentiary hearing must be held to make the modification permanent.[1]  The Nice-Peterson court held that a trial court may deny a moving party’s motion to modify a custody order and refuse to hold an evidentiary hearing if the affidavit does not allege a sufficient justification for a custody modification.  Id. at 472.  But Nice-Peterson dealt with child custody and not with spousal maintenance.  See Minn. Stat. § 518.64, subd. 2(f) (2000) (“The court need not hold an evidentiary hearing on a motion for modification of maintenance * * * .”).  See generally Christenson v. Christenson, 490 N.W.2d 447, 451 (Minn. App. 1992), review dismissed (Minn. Feb. 16, 1993).    

            More importantly, the right established in Nice-Peterson proscribes the denial of relief to the moving party, if the moving party presents a prima facie case, without permitting that party to present evidence at an evidentiary hearing.  310 N.W.2d at 472.  Nothing suggests a converse right for a nonmoving party.  And nothing in the case suggests that either party has a right to disregard motion proceedings until an evidentiary hearing occurs.

            Appellant was notified that modification could occur and was obligated as a matter of law to be prepared to present evidence at the hearing and to submit responsive documents within five days of the hearing.  See Minn. R. Gen. Pract. 303.01(b) (requiring that “[a]ll responsive pleadings be served and mailed to or filed with the court administrator no later than five days prior to the scheduled hearing.”).  


            Finally, appellant contends that the court erred by ordering repayment of $4,500 ($1,500 for each month from the time of the original modification motion).  The court’s order was not a judgment enforcement order, as appellant contends.  To the contrary, it was part of the modification decision and effected a retroactive modification to the date of the original motion.[2]  If the statutory conditions for retroactive maintenance modification are met, the trial court’s decision regarding the effective date of the modification will be reviewed for abuse of discretion.  Kemp v. Kemp, 608 N.W.2d 916, 920-21 (Minn. App. 2000).  We are not presented with the claim that the trial court abused its discretion by awarding respondent $4,500 in maintenance overpayments from the date of the original motion.


            Appellant relies in part on emphasizing the significance of a modification order, which now places on her the burden of showing a substantial change in circumstances to warrant a future increase in respondent’s maintenance obligation. 

            Indeed, the consequences of the modification order may be even more problematic here, where there may be complex questions about the base-line circumstances to which a future change-of-circumstances comparison is made.  All of this being true, it takes nothing away from our analysis of the case.  Because appellant was notified that a hearing would occur and had an obligation under the law to be prepared with her responsive case at the time of the hearing, we must affirm the trial court’s decision to act at that time.






* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant’s contention that she was entitled to a continuance at the hearing does not challenge the court’s discretion in denying a continuance.  See Minn. R. Gen. Pract. 302.02 (noting that a continuance “shall [not] be granted unless requested within 3 days of receiving notice [of the motion] * * * and unless good cause is shown”).  Rather, appellant asserts that she was entitled to a second hearing as part of Nice-Peterson’s two-stage hearing process.

[2] Minn. Stat. § 518.64, subd. 2(d) (2000) provides:

A modification of support or maintenance * * * may be made retroactive only with respect to any period during which the petitioning party has a pending motion for modification but only from the date of service of notice of the motion on the responding party * * * .