This opinion will be unpublished and

may not be cited except as provided by

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







In re:  Roman J. Kabes, Jr., petitioner,





Pamela A. Kabes,




Filed June 18, 2002

Reversed and remanded

Huspeni, Judge*



Dakota County District Court

File No. F0-95-12694


Kevin John McGrath, Jensen, McGrath & Mullen, P.L.L.P., 1350 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)


Todd Richard Counters, 4660 Slater Road, Suite 250, Eagan, MN 55122 (for respondent)



Considered and decided by Toussaint, Chief Judge, Willis, Judge, and Huspeni, Judge.



U N P U B L I S H E D   O P I N I O N




Appellant challenges the district court’s refusal to terminate his spousal maintenance obligation, and argues that the district court erred in applying the law and made insufficient findings.  Because we agree that the law was misapplied and the findings were insufficient, we reverse and remand.




            Appellant Roman Kabes and respondent Pamela Kabes were married from 1984 to 1996; they are the parents of four children, now aged 12, 11, 9, and 8.  When the marriage was dissolved, appellant was working about 60 hours per week to earn a net monthly income of $3,333; his monthly expenses were $973.  Respondent stayed home with the parties’ children, then aged 6, 5, 3 and 2; the monthly expenses for herself and the children were $2,146.  The parties stipulated that appellant would pay respondent $1,300 in child support and $800 in permanent spousal maintenance.

            Five years after the dissolution, appellant sought to terminate maintenance, arguing that he could no longer work 60 hours per week and have time with his children and that respondent could work because the children were all in school.  The district court, concluding that a stipulated agreement for permanent spousal maintenance should not be altered, denied both appellant’s motion to terminate permanent maintenance and his motion to amend the order denying relief.


            A reviewing court is not bound by and need not give deference to a district court’s decision on purely legal issues.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).  Here the district court found that permanent spousal maintenance was warranted because:

First, [appellant] did not show terms within the stipulation itself calling for future judicial review.  Second, both parties were represented by legal counsel when they stipulated to the agreement on * * * permanent spousal maintenance.  Third, the parties were married for more than ten years and had four children together.


            None of the district court’s three reasons provides a legal basis for denying review of a permanent spousal maintenance award.  First, parties do not need to include a provision in their stipulation to entitle them to judicial review of maintenance; their right to review is provided by statute.  See Minn. Stat. § 518.64, subd. 1 (2000) (“[T]he court may from time to time, on motion of either of the parties, * * * modify the order respecting the amount of maintenance * * * .”).[1]  Second, there is no legal support for the view that being represented by counsel at the time of a stipulation waives the statutory right to seek modification.  Finally, the duration of the marriage and the number of children are not dispositive in determining whether a party is entitled to permanent maintenance.  See Minn. Stat. § 518.552, subd. 3 (2000) (indicating permanent maintenance is appropriate if it is unclear whether recipient will be able to support herself); Poehls v. Poehls, 502 N.W.2d 217, 218 (Minn. App. 1993) (“‘[P]ermanent maintenance’ is a term of art which places the burden on the spouse obligor to demonstrate that a maintenance award should be lessened or terminated due to changed circumstances.”).

            We conclude that the district court erred in basing its denial of appellant’s motion to terminate maintenance on the three grounds it gave for the denial.

            Moreover, the district court failed to make the findings mandated by Minn. Stat. § 518.64, subd. 2(a) (2000), which provides that:

[t]he terms of an order respecting maintenance * * * may be modified upon a showing of one or more of the following:  (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party * * * .

Minn. Stat. § 518.64, subd. 2(c) (2000), provides that:


 On a motion for modification of maintenance, * * * the court shall apply, in addition to all other relevant factors, the factors for an award of maintenance under section 518.552 that exist at the time of the motion.


The Minn. Stat. § 518.552, subd. 2 (2000), factors include:

(a) the financial resources of the party seeking maintenance * * * and the party’s ability to meet needs independently * * *;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, * * * of completing education or training and becoming fully or partially self-supporting;

(c) the standard of living established during the marriage;

(d) the duration of the marriage * * *;

* * * *

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance * * * .


            We recognize that when a motion for modification is denied, arguably findings will not be as detailed and numerous as when a motion for modification is granted.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (holding that where district court finds no substantial change in circumstances exists, findings on factors listed in Minn. Stat. § 518.552 are not required).  Here, however, except for finding that the marriage had lasted ten years, the district court made no findings whatsoever pursuant to the requirements of either Minn. Stat. § 518.64 (2000) or Minn. Stat. § 518.552.[2]  Therefore, this court has no way of knowing whether the district court considered the appropriate factors.

            Failure to make appropriate findings is grounds for reversal and remand.  See, e.g., Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (reversing award of permanent maintenance where district court made no findings on parties’ expenses and obligor’s ability to pay); Wallin v. Wallin, 290 Minn. 261, 267, 187 N.W.2d 627, 631 (1971) (broad discretion granted court in domestic relations cases makes it especially important for court to set forth the basis for its decision with particularity); Stevens v. Stevens, 501 N.W.2d 634, 637 (Minn. App. 1993) (finding abuse of discretion and remanding where trial court failed to make findings in awarding maintenance); Rapacke v. Rapacke, 442 N.W.2d 340, 343-44 (Minn. App. 1989) (reversing and remanding because lack of findings on a party’s needs and income precluded review of decision to deny motion for permanent maintenance).

            We reverse the denial of appellant’s motion and remand for a decision based on the applicable law and supported by appropriate findings.  On remand, the district court may, in its discretion, reopen the record and receive any additional evidence deemed appropriate.

            Reversed and remanded.


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

[1]  It is rather parties who want to preclude modification of maintenance who must stipulate to both a contractual waiver and a provision divesting the court of jurisdiction.  See Loo v. Loo, 520 N.W.2d 740, 744-45 (Minn. 1994).

[2]  Respondent argues that findings were not needed because appellant moved to terminate, not to modify, maintenance.  However, nothing indicates that the legislature intended the provisions on modification not to apply to termination:  no separate statutes govern motions to terminate.  It would be absurd to argue that termination is not a type of modification, and the legislature is presumed not to have intended an absurd result.  Minn. Stat. § 645.17(1) (2000); see also Poehls, 502 N.W.2d at 218 (permanent maintenance imposes on obligor the burden of demonstrating that maintenance “should be lessened or terminated due to changed circumstances.”) (emphasis added).