This opinion will be unpublished and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:

Patricia Ann Johnson, petitioner,





Kevin Virgil Johnson,




Filed May 7, 2002

Foley, Judge


Mille Lacs County District Court

File No. FX991301



JoAnn W. Evenson, Pennington & Lies, P.A., 1111-1st Street North, P.O. Box 1756, St. Cloud, MN  56302 (for respondent)


Richard W. Curott, Curott & Associates, 116 Second Avenue SW, P.O. Box 206, Milaca, MN  56353 (for appellant)


            Considered and decided by Shumaker, Presiding Judge, Foley, Judge, and Huspeni, Judge*

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            On appeal in this dissolution matter, appellant alleges that the district court abused its discretion by (1) awarding maintenance even though respondent had sufficient property to provide for herself; (2) failing to make sufficient findings to support the award of spousal maintenance and conduct-based attorney fees; and (3) awarding conduct-based attorney fees even though respondent failed to file an accompanying affidavit, pursuant to Minn. Gen. R. Prac. 119.02.  Because we conclude that the district court did not abuse its discretion, we affirm.


Respondent Patricia Ann Johnson petitioned for marital dissolution in early December 1999.  Pursuant to a December 14, 2000 partial judgment, appellant Kevin Virgil Johnson received the marital homestead and respondent received $78,000 to compensate for her share of the equity in the homestead.  On April 11, 2001, the district court issued a judgment, which granted respondent, in relevant part, temporary spousal maintenance in the amount of $750 per month for 48 months and attorney fees in the amount of $1,500.  Appellant moved the district court to amend spousal maintenance and the award of attorney fees.  The district court denied appellant’s motion, and this appeal followed.




            This court will not reverse a district court’s determination of a spousal maintenance award absent an abuse of discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  The district court abuses its discretion by reaching a “clearly erroneous conclusion that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  An abuse of discretion is not found simply because the record could support a different result, or because this court might have reached a different result on the same record.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000). 

            Spousal maintenance is an award 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).  Maintenance may be granted if the spouse seeking maintenance demonstrates that he or she

lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education * * * .


Minn. Stat. § 518.552, subd. 1(a) (2000).


            When determining the amount and duration of maintenance, district courts must consider all relevant factors, including (1) the ability of the spouse seeking maintenance to provide for his or her needs independently; (2) the time necessary to acquire education to find appropriate employment; (3) the age and physical and emotional condition of the recipient spouse; (4) the standard of living established during the marriage; (5) the length of the marriage; (6) the contribution and economic sacrifices of a homemaker; and (7) the resources of the spouse from whom maintenance is sought.  Minn. Stat. § 518.552, subd. 2(a)-(h) (2000).

            A.         Lack of Sufficient Property

            Appellant argues that the district court abused its discretion in awarding respondent maintenance because she did, in fact, possess sufficient property, citing Minn. Stat. § 518.552, subd. 1(a) (providing that lack of sufficient property is basis for award of spousal maintenance).  Appellant argues that respondent has $78,000 in cash from the December 12, 2000, partial judgment and $67,132 in “investment accounts.”  During oral argument, appellant also asserted that respondent maintains investments that were not part of the district court record.  But this court is an error correcting court and “may not base its decision on matters outside the record on appeal.”  Plowman v. Copeland, Buhl, & Co., 261 N.W.2d 581, 583 (Minn. 1977); see Minn. R. Civ. App. P. 110.01 (defining record on appeal as papers filed with district court, offered exhibits, and transcript of the proceedings).    

            Here, the record contains evidence of the parties’ income and assets, and the district court found that respondent (1) has a high-school education; (2) worked three jobs and earned $33,376 in 1999; (3) desires to return to college; (4) currently earns $11 per hour; (5) currently has a total income of $22,880 per year; and (6) has $2,000 in reasonable monthly living expenses.  The court also found that appellant had a gross yearly income of $61,187 in 1999, and has reasonable monthly living expenses of $3,000.  Although respondent has $78,000 in cash and a $65,000 pension fund, she is not required to invade the principal of these property distributions to satisfy her monthly financial needs.  See Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (holding that “[c]ourts normally do not expect spouses to invade the principal of their investments to satisfy their monthly financial needs”) (citation omitted)).  On the basis of her current yearly income, it is not an abuse of discretion to hold that respondent lacks sufficient property to meet her reasonable monthly expenses and her educational needs.

            B.         Standard of Living


            Appellant also argues that the district court abused its discretion in awarding maintenance because the record does not support the finding that the parties maintained an above-average standard of living.  Appellant does not explain why the labeling of the parties’ standard of living as “above-average” would lead to an abuse of discretion and, in fact, concedes that “the parties’ standard of living was sufficient to allow [respondent] to accumulate cash and investment assets and for the parties to afford the luxury of vacation time shares.”  But appellant did not raise this specific issue at the district court level, and this court will generally not decide an issue that was not raised at the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). 



            An award of attorney fees rests within the sound discretion of the district court and will not be reversed absent an abuse of that discretion.  Bliss v. Bliss, 493 N.W.2d 583, 589 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).  Minn. Stat. § 518.14, subd. 1 (2000) provides that, in its discretion, the court may award “additional fees, costs and disbursements against a party who unreasonably contributes to the length or expense of the proceeding.”  Conduct-based fees may be awarded regardless of the recipient’s need for fees and regardless of the payor’s ability to contribute to the fee award.  Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).  Bad faith is not required for an award of conduct-based fees, but the conduct must have occurred during litigation.  Id.  

            A.         Findings Supporting Attorney Fees

            Appellant argues that the district court abused its discretion by awarding conduct-based attorney fees because the findings supporting the award were not justified by the record.  In the 2001 judgment, the district court stated that

[t]here is sufficient evidence here to find that [appellant] was not entirely cooperative with [respondent’s] efforts to bring this matter to a speedy resolution.  An award of attorney fees is warranted in this matter for the following reasons: (1) [appellant] did not answer with sufficient truthfulness interrogatories dealing with the fuel reimbursement allowance he receives through his employer; (2) [appellant] also did not include this allowance on his prehearing statement; (3) [appellant] concealed the fact that he opened a safety deposit box at or about the same time [respondent] alleges the money was taken from the trunk of her car; and (4) [appellant] indicated that he had retained an expert to place a value on [appellant’s] pension plan, but no such experts was ever produced.


Appellant argues that the record does not justify the district court’s award of attorney fees by asserting that (1) he did not unreasonably lengthen the proceedings by not calling an expert witness; (2) there is no support for the district court’s finding that appellant was untruthful; and (3) the district court’s finding that appellant was not forthcoming about his fuel allowance should not result in a sanction.  But we cannot conclude that the district court abused its discretion simply because the record could support a different result, or because this court might have reached a different result on the same record.  See Chamberlain, 615 N.W.2d at 412.  The appellate courts review only whether the district court abused its discretion by making a “clearly erroneous conclusion that is against logic and the facts on record.”  Rutten, 347 N.W.2d at 50 (citation omitted). 

            In this case, the record supports that appellant unreasonably contributed to the length of the proceeding.  Respondent testified that she believed appellant had contributed to the length and expense of the divorce by being uncooperative and inaccurate with his court submissions.  The record shows that appellant’s attorney requested that “experts could be called at a later date,” even though appellant never provided expert testimony.  There is also testimony that appellant (1) had to be deposed because he did not cooperate in submissions; (2) refused to pay for a farm appraisal during the proceedings; (3) may have sold off farm equipment during the proceedings; (4) closed joint-checking accounts; (5) made inaccurate representations about his gas allowance and how that allowance affected his income; (6) made inaccurate representations about the amount of his union dues and how those dues affected his income; (7) made inaccurate representation about his social and entertainment expenses; and (8) did not tell the court, until cross-examination, about a safe deposit box he opened during the course of the proceedings, even though the disappearance of money from a safety deposit box was at issue.  While the evidence may not be overwhelming, we are unwilling to say it is an abuse of discretion for the district court to hold that appellant’s lack of cooperation and inaccurate representations unreasonably frustrated and prolonged the proceedings.  Therefore, there is no abuse of discretion in awarding attorney fees.

            B.         Required Filings for Attorney Fees

            Appellant argues that the district court abused its discretion in awarding attorney fees because, under Minn. R. Gen. Pract. 119.02, respondent was required to accompany a motion for attorney fees with an affidavit and did not do so.  Again, we note that appellant did not raise this argument at the district court level, and, generally, this court will not decide an issue that was not raised in the district court.  See Thiele, 425 N.W.2d at 582.  But this panel will address the issue in the interests of justice.  See Minn. R. Civ. App. P. 104.03.

            Rule 119.02 provides that the motion for attorney fees “shall be accompanied by an affidavit of any attorney of record,” which establishes the basis for the attorney fees.  But, in Gully, the supreme court held that rule 119 “is not intended to limit the court’s discretion, but is intended to encourage streamlined handling of fee applications and to facilitate filing of appropriate support to permit consideration of this issue.”  Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999) (quotation omitted).  The Gully court held that it was not an abuse of discretion for the district court to waive the rule 119 requirement where the district court is familiar with the case and has access to the parties’ financial records.  Id.   Here, the record demonstrates that the district court listened to testimony and viewed documents about the parties’ financial history and respondent’s attorney fees.  Additionally, respondent’s attorney submitted a “history listing” of his fees for respondent’s case.  The district court, therefore, did not abuse its discretion in waiving the rule 119 requirement when determining attorney fees.


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