This opinion will be unpublished and

may not be cited except as provided by

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







In re:  Donald C. Czech, petitioner,


Laverne R. Czech,



Filed May 28, 2002


Huspeni, Judge*



Hennepin County District Court

File No. DW173482



Susan A. Daudelin, Katz & Manka, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for appellant)


Jonathan D. Miller, 12201 Champlin Drive, Champlin, MN 55316 (for respondent)




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

U  N P U B L I S H E D  O P I N I O N




            Appellant Donald Czech challenges the district court’s denial of his motion to modify spousal maintenance, arguing that his retirement and poor health warrant a reduction in his spousal maintenance obligation.  Because the record supports the district court’s determination that appellant did not show a substantial change of circumstances rendering the current obligation unreasonable and unfair, we affirm.



            In August 1992, appellant Donald Czech and respondent Laverne Czech dissolved their marriage pursuant to a stipulated judgment.  Both parties were represented by attorneys and agreed that appellant would pay permanent spousal maintenance of $1,000 per month terminating upon respondent’s death or remarriage.  The decree also provided some guidance for maintenance modification, stating

[t]hat if [appellant] obtains income from part time consulting in the future, any supplemental income generated from this additional part time consulting shall not be a basis upon which the respondent may seek an increase in maintenance awarded to her by this Court so long as [appellant] is current with his payments on the $11,000 obligation [appellant] owes to the respondent, * * * and as long as [appellant] continues to provide health insurance for respondent as provided herein.  Subsequent to that obligation being paid off, then any income earned by [appellant] from part-time consulting may give rise to a motion for modification of maintenance by the respondent as provided by Minnesota Statutes.


At the time of the dissolution, appellant was 61 years old and respondent was 60 years old.  Appellant owned Check Refrigeration Company, Inc., and was earning a $50,000 gross annual salary plus business expenses for his car.  His reasonable monthly expenses were stipulated to be $7,875.  Respondent was unemployed with stipulated reasonable monthly expenses of $2,818.32. 

In June 1998, appellant moved to reduce or terminate spousal maintenance based on respondent’s receipt of $650 per month in social security benefits and appellant’s decreased income.  He provided the referee with his budget of $2,511 per month, which included $433 for recreation and entertainment, $216 for gas, and $108 for laundry and dry cleaning.  Appellant claimed that he earned $1,040 per month, but did not provide any verification of his income.  At the hearing, the court discovered that appellant also received social security benefits of $1,208 per month.  Appellant also conceded at the 1998 hearing that he continued to own his company and structured his salary to ensure that it would not exceed the social security cap.  Finding that appellant was willfully underemployed and that he failed to show that his earnings had substantially decreased, the referee recommended denial of his motion.  Appellant did not seek review of the referee’s recommendation.

In November 2000, appellant again moved to terminate spousal maintenance, claiming that his income had decreased.  He appeared pro se at the hearing and brought (1) his 2000 income tax returns showing $876 in total income; (2) a letter from his former employer confirming that he no longer received any salary; and (3) documents showing that he had settled substantial state tax obligations.  The referee did not accept any of these documents.  Appellant claimed that he had retired and that he no longer owned his business, but that he still volunteered as a consultant for his son’s new business.  Respondent argued that appellant had closed his business and his son opened a new business with a similar name and the same clients.  Appellant alleged that his only source of income was monthly social security benefits of $1,438 and that his monthly budget was $1,346.  The referee declared the budget amounts to be “unrealistically low” compared to appellant’s 1998 budget.  Appellant also provided a letter from his doctor stating that appellant had aortic and mitral valve replacements, which restricted him from doing any physical or stressful work, but the letter did not indicate whether his health precluded him from working in his current capacity as a consultant.  Finding that appellant failed to prove that a “substantial change of circumstances has occurred that makes the current order for spousal maintenance unreasonable,” the referee denied appellant’s motion. 

Appellant sought review of the referee’s recommendation in district court and moved to submit the additional materials that the referee did not accept.  The motion was granted, and the district court considered the additional materials as part of its de novo review.  While the district court denied appellant’s motion to make a personal appearance at the de novo review, both parties had the assistance of legal counsel at that point.  Appellant submitted substantial documentation, and each party submitted a written memorandum.  

As part of the record before the district court, appellant claimed that he was not receiving income for his consulting work, but acknowledged that the business provided him with a late-model Lincoln Town Car.  He also alleged that friends and family absorbed the costs associated with his travel and golf activities.  Respondent argued that appellant received unreported compensation for the sale or transfer of his business, and for his consulting work.

Upon completion of its de novo review, the district court found that it was unclear “whether [appellant] is claiming that he has voluntarily retired or he is incapable of working because of medical reasons.”  The district court, apparently rejecting the claim that friends and family absorbed costs, also concluded that appellant’s retirement has not affected his lifestyle or activities because he continues to travel to Texas, Florida, and Arizona four months in the winter and plays golf regularly.  Finally, the district court determined that it was unclear from the record if appellant had “really retired,” and suggested that appellant “has adjusted his business life so there is no reported taxable income but has maintained his current lifestyle.”  This appeal from the district court de novo review followed.





            Appellant argues that the district court abused its discretion by denying his motion to reduce or terminate permanent spousal maintenance.  We review a district 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 district court abused its broad discretion with respect to an award of spousal maintenance, the district court’s fact findings must be “against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). 

            A court may modify spousal maintenance upon a showing of substantially increased or decreased earnings of a party that make the original judgment and decree unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (Supp. 2001).  A party seeking modification of spousal maintenance has the burden of showing not only that a substantial change in circumstances occurred but also that the change makes the previous spousal maintenance decree unreasonable and unfair.  Hecker v. Hecker, 543 N.W.2d 678, 709 (Minn. App. 1996), aff’d, 568 N.W.2d 705 (Minn. 1997).  The terms “unreasonable and unfair” are “strong terms which place upon the claimant a burden of proof more than cursory.”  Giencke v. Haglund, 364 N.W.2d 433, 436 (Minn. App. 1985).

            Absent language in the judgment divesting the district court of jurisdiction, the court retains the authority to determine whether changed circumstances warrant modification.  Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn. App. 2000).  When a stipulation fixing the parties’ respective rights and obligations is central to the original judgment, however, the district court, when considering a motion to modify spousal maintenance, should view the original judgment as an important element because it represents the parties’ voluntary acquiescence in an equitable settlement.  Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981).  Although the district court is vested with the broad discretion to determine whether modification is appropriate, the Minnesota Supreme Court has urged courts to exercise this discretion carefully and only reluctantly alter the terms of a stipulation governing maintenance.  Id. 

Appellant argues that the district court erred by determining that the decree precluded modification based on appellant’s voluntary retirement.  Appellant misinterprets the court’s finding on this issue.  The district court found that it was unclear whether appellant actually retired, and that he failed to show that his alleged retirement created a change substantial enough to render the current maintenance obligation unreasonable and unfair.  The court did note that the parties’ stipulation failed to provide that voluntary retirement would be a basis for reduction or termination of maintenance.  While we agree with the court’s observation that voluntary retirement was not one of the stated bases on which maintenance would terminate, we do not interpret the court’s language as consigning appellant to the virtual indentured servitude of perpetual employment. 

Certainly, appellant may retire.  And he continues to have the benefit of the provisions of Minn. Stat. § 518.64 to invoke the jurisdiction of the court and move for modification of spousal maintenance.  He must, however, carry his burden under that statute to show by a preponderance of the evidence that his financial circumstances have so substantially changed as to make the current spousal maintenance award unreasonable and unfair.  See Hecker, 568 N.W.2d at 709 (section 518.64, subdivision 2, places a dual burden on the party seeking modification of maintenance, first, to demonstrate that a substantial change has occurred and, second, to show how this change renders the original stipulation unfair and unreasonable).  Here, appellant failed to convince the district court that he had voluntarily retired.  Even if he had been found to be credible on that issue, however, he would still have had the burden of showing how retirement (a possibility surely foreseeable by these parties who were nearing retirement age, but one not provided for in the stipulation) caused a substantial change in circumstances rendering the current maintenance order unreasonable and unfair.  See Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997) (concluding that party’s dramatic increase in income and the 278% cost-of-living increase since dissolution did not make original decree unfair and unreasonable because these increases were foreseeable and it is neither unfair nor unreasonable to hold parties to their original stipulation, which “undoubtedly balanced their compromised interests” at the time it was made). 

Appellant further argues that the court, in effect, found him to be acting in bad faith in claiming that he had retired.  We cannot agree.  There is nothing in the district court’s order that can be construed as indicating any bad faith.  What the court, in fact, did conclude was that it was unclear whether appellant “really retired” and that it appeared appellant adjusted his business life so as to have no reported taxable income.  The court found it unclear whether appellant claimed decreased earnings as a result of voluntary retirement or as a result of a medical condition.  And if he claimed the latter, appellant had failed to establish that his health impairs him from earning income.  It strains credulity to infer from these statements of the district court that appellant was found to have acted in bad faith.

Essentially, the district court’s findings and conclusions reveal that appellant was not found to be a credible witness.  The district court is in the best position to make credibility determinations.  See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (credibility determinations are the role of the fact-finder).  We see no abuse of the district court’s broad discretion in deciding as it did.


Appellant next contends that the district court failed to make adequate findings to support its denial of the motion to terminate spousal maintenance.  Specifically, he argues that the court erred by making findings that compare his current circumstances with his circumstances during his 1998 motion to reduce spousal maintenance, rather than with those existing at the time of the dissolution.

We recognize that when a party seeks modification after a prior motion to do so has been denied, the court first questions whether incremental changes occurring after the denied motion are significant enough to require the court to examine all cumulative changes occurring after the time maintenance was initially established.  Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn. App. 1991).  A change of circumstances since denial of a prior motion for modification, even if not a “substantial change” by itself, may be significant enough in its incremental effect to require a trial court to re-examine the cumulative changes since the time of the initial order.  Id.  If the changes are not significant, however, the district court need not look back to the original award because “the order of denial should be given conclusive effect.”  Id. 

We conclude here that the court appropriately compared appellant’s current circumstances with those existing at the time of the 1998 motion.  The district court found that appellant manipulated his current budget and that, despite his medical condition, he functioned the same as he did in 1998 by working and traveling one-third of the year.  Although appellant claimed that his income had decreased by $1,073 since the 1998 motion, the court rejected this testimony and believed, instead, that appellant received undisclosed income.  This conclusion was based in large measure, we infer, on the undisputed fact that appellant’s lifestyle had not changed since 1998.  It was within the district court’s broad discretion to consider this unchanged lifestyle in weighing the credibility of appellant’s claims of financial adversity.  Appellant did not adequately demonstrate that his circumstances had substantially changed since the 1998 denial of his modification motion.  Thus, it was unnecessary for the court to look back to the time of the original maintenance award.

Appellant also argues that the district court did not consider all relevant factors under Minn. Stat. § 518.64, subd. 2 (Supp. 2001), to determine whether a substantial change in circumstances had occurred.  In modification of maintenance obligations, particularized findings are necessary to show that the district court has considered the relevant statutory factors.  Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).  If the findings are insufficient to determine whether the district court addressed the relevant factors, then the matter should be remanded for further findings; but if the findings indicate that the relevant factors have been considered, a remand is not appropriate.  Id. 

Here, the detailed findings indicate that the district court considered the relevant factors in determining that appellant had failed to show that his poor health or retirement caused a substantial change in circumstances.  Although appellant argues that the uncontested documents that he submitted should have compelled a finding that his income had decreased, the court was not required to accept this evidence as credible.  See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (stating that fact-finder need not accept even uncontroverted evidence if surrounding facts and circumstances give reasonable grounds to doubt credibility).  It is apparent from the court’s determination that appellant “has adjusted his business life so there is no reported taxable income” that the court found a lack of credibility in this evidence.  As noted earlier, this court defers to the district court’s credibility determinations.  Sefkow, 427 N.W.2d at 210.  Because the court considered the relevant factor of substantial change in circumstances and found that appellant failed to show any change, it was unnecessary for the court to make any additional findings.

Further, the district court is not required to accept even uncontradicted testimony if surrounding circumstances afford reasonable grounds for doubting appellant’s testimony and documents.  Varner,400 N.W.2d at 121.  The court’s rejection of appellant’s allegations regarding decreased earnings may stem from (1) the court’s disbelief that appellant works as a consultant for his son without getting paid, (2) appellant’s failure to report on his tax return the Lincoln Town Car that his business had given to him, (3) his unchanged lifestyle and activities since his retirement, and (4) his failure to account financially for both his travel and the maintenance of his residence while out of town. 

Finally, appellant challenges the district court’s finding regarding his lifestyle as insufficient to support a determination that his income has not decreased.  We see no insufficiency.  A finding that an individual’s lifestyle has not changed despite claims of financial adversity is sufficient to indicate that the initial maintenance award continues to be fair and reasonable.  Tuthill, 399 N.W.2d at 232; see Savoren v. Savoren, 386 N.W.2d 288, 292(Minn. App. 1986) (concluding that, because appellant maintained his lifestyle despite his career change and decreased earnings, the initial award was still fair).  The district court’s finding regarding lifestyle was sufficient to lend support to the ultimate conclusion that appellant has failed to show a substantial change in circumstances rendering the current maintenance award unreasonable and unfair. 

A final comment is in order regarding the sufficiency of the record before us for review.  We are aware of the fact that appellant’s motion was heard before the referee pursuant to a “fill-in-the-blank affidavit” and without oral testimony or a formal record.  We conclude, however, that affidavits such as appellant’s provide a sufficient basis to enable meaningful review in this court.  See Minn. Gen. R. Pract. 311 (stating that the fill-in-the-blank forms contained in the Appendix of Forms are sufficient under the rules).  In addition, line 17 of appellant’s affidavit provides space for additional comments for court consideration.  While appellant was thus given the opportunity to present more information than the “blanks” might have provided, appellant chose to decline the opportunity, and line 17 contains no information.

With regard to the lack of oral testimony or a formal record, the rules anticipate exactly these circumstances.  Minn. Gen. R. Pract. 303.03(d) provides, in relevant part:

Motions, except for contempt proceedings, shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments of counsel unless otherwise ordered by the court for good cause shown.


Although a party may request oral testimony under rule 303.03, the record here contains no such request.  Further, the district court’s de novo review reflects not only careful consideration of the referee’s recommendations, but also receipt and consideration of additional evidence not accepted by the referee.  The district court’s findings are detailed and reflect adherence to the mandate of the rules that the review be a de novo one.  See Minn. Gen. R. Pract. 312.01 (providing that the “review shall be based on the record before the referee and additional evidence will not be considered, except for compelling circumstances constituting good cause”).  Moreover, when the facts are uncomplicated and the evidence is sufficiently presented by affidavits and documentary evidence, the district court has the discretion to determine whether to conduct an evidentiary hearing to modify maintenance.  Minn. Stat. § 518.64, subd. 2(f) (Supp. 2001).

The record before us is adequate, and we have been able to conduct a meaningful review.  That review convinces us that the district court acted within its broad discretion in discounting or rejecting appellant’s affidavit and documentary evidence and in denying the motion to terminate or reduce spousal maintenance. 





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