This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-01-2066

 

In re:  Virginia E. Westland, petitioner,

Respondent,

 

vs.

 

Stanley K. Westland,

Appellant.

 

Filed June 11, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Freeborn County District Court

File No. F3981210

 

 

Jill I. Frieders, O’Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903 (for respondent)

 

Matthew L. Benda, Peterson, Savelkoul, Schlichting & Davies, Ltd., 211 South Newton, Albert Lea, MN 56007 (for appellant)

 

Considered and decided by Shumaker, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

After reversal and remand from a previous appeal, appellant challenges the district court’s designation of the spousal-maintenance award as permanent maintenance.  Because the district court did not abuse its discretion in characterizing the spousal maintenance award as permanent, we affirm.

FACTS

                                   

            Appellant Stanley Westland and respondent Virginia Westland were divorced in July 2000 after 26˝ years of marriage.  After working full time as a teacher when the parties were first married, respondent quit in 1976 after the birth of their first child and remained at home to raise three children.  Respondent worked part time as a substitute elementary-school teacher beginning in 1991. 

Appellant is a certified public accountant, with an earning capacity of $85,000.  He also owns and manages several different business entities.

In August 2000, the district court entered the first amended judgment and decree, awarding respondent monthly maintenance and ordering respondent to make a good-faith effort to find work.  The district court made numerous findings that support a maintenance award, but did not designate whether the maintenance was to be permanent or temporary.  The district court denied appellant’s subsequent motion for a new trial or amended findings, but still did not clarify the designation of the maintenance award.

Appellant requested reconsideration under Minn. R. Gen. Pract. 115.11, and respondent requested that the district court clarify the award designation as permanent.  The district court allowed a motion for reconsideration without oral arguments.  And in November 2000, the district court entered its second amended judgment and decree and awarded respondent “permanent spousal maintenance,” but retained jurisdiction for five years to allow for review of the award. 

In appellant’s first appeal, this court ordered that the only timely appeal was from the second amended judgment, and only on the issues of the district court’s characterization of the maintenance award as “permanent” and the court’s reservation of jurisdiction for five years to review the award.  Westland v. Westland, No. C6-00-2243 (Minn. App. Jan. 30, 2001) (order).  In an unpublished opinion, this court reversed and remanded for the district court to clarify whether it intended to award permanent or temporary maintenance and to “give its reasons.”  Westland v. Westland, No. C6-00-2243 (Minn. App. Aug. 14, 2001).

In September 2001, the district court entered the third amended judgment, awarding permanent maintenance to respondent and stating that the court was unable to determine whether respondent would find full-time work with sufficient income to become self-supporting.  The district court deleted the reference to retaining jurisdiction.  This appeal followed.

D E C I S I O N

The standard of review from a district court’s determination of spousal maintenance is whether the district court abused its discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  This court can review the district court’s exercise of discretion only when there are sufficient findings to show that the district court considered all of the relevant statutory factors.  Id.  This court will not find an abuse of discretion unless the district court has arrived at a clearly erroneous conclusion that is not supported by the facts in the record.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

            Appellant argues that the district court’s award of permanent spousal maintenance is illogical, unsupported by the evidence, and contradicts the district court’s own findings. 

Maintenance, 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), may be granted when the court finds that the spouse seeking maintenance:

(a) 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, or

 

(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. 

 

Minn. Stat. §  518.552, subd. 1 (2000).  After the district court has determined that it is appropriate to grant maintenance, the court must consider and make findings on numerous factors, including those outlined in Minn. Stat. § 518.552, subd. 2 (2000), to establish the amount and duration of the award.  Reinke v. Reinke, 464 N.W.2d 513, 514 (Minn. App. 1990).  The issue is, in essence, a balancing of the recipient’s need against the obligor’s ability to pay.  Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).

            In the first amended judgment and decree, the court made numerous findings relating to the statutory factors for spousal maintenance.  Because appellant did not timely appeal these findings, we accept them as supported by the evidence.  See Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370-71, 147 N.W.2d 100, 103 (1966) (stating that an appealable order is final after the time for appeal has expired). 

Specifically, the district court found that respondent was not awarded assets with sufficient value to eliminate her need for maintenance; the likelihood that she would ever achieve self-sufficiency was unclear; she had outmoded teaching skills at the age of 50; she had led a very comfortable middle-class lifestyle during the marriage; she was a traditional homemaker during the long-term marriage; she has lost her seniority, job opportunities, employment benefits, and retirement benefits because of her absence from the job market; and appellant can afford to pay maintenance and still support himself.  See Minn. Stat. § 518.552, subd. 2 (2000) (outlining required statutory factors to support a maintenance award).  These findings, as a whole, support the conclusion that respondent is entitled to permanent maintenance.  See, e.g., Carrick v. Carrick, 560 N.W.2d 407, 411 (Minn. App. 1997) (concluding that trial court erred in finding that wife was underemployed in “bad faith” and in awarding temporary maintenance where wife, 49 years old, was full-time homemaker for 10 years of 21-year marriage and worked only part time during the last 10 years of the marriage).

However, appellant further argues that, because the first amended judgment required respondent also “to make a good faith effort to maximize her employment income” and to seek full-time work, the findings do not support a permanent-maintenance award.  Appellant claims that uncertainty in respondent’s ability to find full-time work exists only because respondent refuses to look for full-time work.  To support his argument, appellant relies on Dobrin v. Dobrin, 569 N.W.2d 199 (Minn. 1997). 

We find appellant’s reliance on Dobrin to be misplaced.  In Dobrin, the supreme court denied an award of permanent maintenance where the marriage had been of short duration, the wife had been out of a professional work environment for less than two years, she began an active work search almost one year after filing for dissolution, and she then applied for only three job positions.  Id. at 201-02.  Those facts do not apply to the current situation, which involves a long-term, traditional marriage and a 50-year-old wife with outdated job skills.

Appellant further argues that the retention of jurisdiction over maintenance in the second amended judgment supports the conclusion that respondent is only entitled to temporary maintenance.  But on remand, the district court clearly specified its intent to award permanent maintenance in the second amended judgment.  The district court has consistently stated throughout this case that whether the award should be permanent or temporary was in a gray area.  Because the district court was unable to determine whether respondent would be able to find full-time work and the amount of income she would make, the court properly awarded permanent maintenance.  Doubts with respect to duration are to be resolved in favor of permanency:

Nothing in this section shall be construed to favor a temporary award of maintenance over a permanent award, where the factors under subdivision 2 justify a permanent award. 

 

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. 

 

Minn. Stat. § 518.552, subd. 3 (2000).

            The district court’s findings support an award of permanent maintenance and the court has clarified its intent to award permanent maintenance.  Consequently, we find no abuse of discretion in the permanent-maintenance award.

            Affirmed.