This opinion will be unpublished and

may not be cited except as provided by

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






In re:

Kristin Elizabeth Fischer, petitioner,





Scott Bruce Cottington,



Filed July 16, 2002


Hanson, Judge


Hennepin County District Court

File No. DC 242 699


Marc G. Kurzman, Kurzman, Grant & Ojala, Suite 403, 219 Southeast Main Street, Minneapolis, MN 55414 (for appellant)


Geraldine Carlen Steen, Tera L. Lungstrom, Beckman & Steen, Suite 206, 14550 Excelsior Boulevard, Minnetonka, MN 55345 (for respondent)


            Considered and decided by Randall, Presiding Judge, Hanson, Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N


On appeal from a marital dissolution judgment, appellant-wife argues that the district court misconstrued the parties’ settlement agreement to include a waiver of jurisdiction to modify the award of spousal maintenance.  Because appellant did not expressly waive the right to have the district court retain jurisdiction to modify spousal maintenance, we reverse.


Appellant-wife Kristin Elizabeth Fischer petitioned for marital dissolution from respondent-husband Scott Bruce Cottington, and the parties reached an agreement on the terms of dissolution.  The parties affirmed, before the district court, that they had considered the agreement and that it was their desire to proceed to settle the case. 

Before judgment was entered, wife filed a motion to set aside the agreement, asserting that she did not appreciate the consequences of her statements.  Husband counter-moved for a determination that the agreement was valid and binding.  The district court denied wife’s motion and granted husband’s motion, entering a judgment incorporating the agreement into its conclusions of law. 

The judgment establishes spousal maintenance in accordance with the agreement but also divests the court of jurisdiction to modify maintenance, stating:

Respondent is ordered to pay to Petitioner as spousal maintenance the sum of $3,000.00 per month payable one-half on the 1st and one-half on the 15th day of each and every month.  Payment of said maintenance shall begin upon entry of this Order and shall be paid through December 31, 2000, at which time maintenance shall be reduced to $2,500.00 per month through December 31, 2001, at which time maintenance shall be reduced to $2,000.00 per month through December 31, 2002.

            The court is divested of jurisdiction to modify the award of spousal maintenance.


(Emphasis added.)      

Wife immediately filed a notice of appeal, but this court dismissed the appeal because the district court’s decision was a non-final partial judgment.  After a series of motions to amend by both parties, a final judgment was entered and wife filed notice of this appeal.


The appellate courts 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, there must be “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).


Husband argues that the appeal of the district court’s spousal-maintenance conclusion, which divests the district court of jurisdiction to modify, should be dismissed because it is not ripe until one of the parties actually requests modification of spousal maintenance.  Whether an issue is ripe for judicial review depends on “the fitness of the issues for judicial decision” and “the hardship to the parties of withholding court consideration.”  In re Qualification of Envtl. Costs, 578 N.W.2d 794, 798 (Minn. App. 1998) (quotation omitted), review denied (Minn. Aug. 18, 1998).

            While neither party has requested modification of maintenance, the divestiture of jurisdiction to modify maintenance would operate as a bar to any such motion.  Thus, husband’s argument would effectively preclude appellate review of the issue.  We conclude that the judgment is appealable, including the conclusion concerning spousal maintenance, because the parties dispute whether the judgment accurately reflects the settlement agreement.


Wife argues that the district court abused its discretion by divesting itself of jurisdiction to modify spousal maintenance because wife did not expressly waive the right to have the district court modify maintenance.  See Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997) (holding that waiver of statutory right to modify maintenance under Minn. Stat. § 518.64 is valid only if contractually and expressly made).

In Karon v. Karon, 435 N.W.2d 501, 503-04 (Minn. 1989), the supreme court concluded that a party may waive the right to have the district court modify maintenance, stating that

intelligent adult women, especially when represented by counsel, must be expected to honor their contracts the same as anyone else.  Any other holding would result in chaos in the family law field and declining respect for binding agreements as well.


Id. at 504; see also Angier v. Angier, 415 N.W.2d 53, 56 (Minn. App. 1987) (upholding stipulation where appellant was represented by counsel and parties agreed to the stipulation in open court).  But to have binding effect, a Karon waiver must contain both the contractual waiver of the statutory right to seek modification and express language divesting the trial court of its continuing jurisdiction to entertain such motion.  Loo v. Loo, 520 N.W.2d 740, 745 (Minn. 1994).[1]  This court may not “infer waiver in the absence of a clear intent to waive a statutorily conferred right.”  Keating v. Keating, 444 N.W.2d 605, 607-08 (Minn. App. 1989), review denied (Minn. Oct. 25, 1989). 

Husband argues that waiver may be implied from an agreement that sets maintenance for a specific term.  But an implied waiver is not sufficient to satisfy the requirements expressed in Loo.  The district court, therefore, abused its discretion by divesting itself of jurisdiction to modify future maintenance when wife did not make an express waiver.  We reverse with directions to strike that portion of the conclusion that divests the district court of jurisdiction to modify maintenance.



[1] Minn. Stat. § 518.552, subd. 5 (2000) provides additional protections against waiver by requiring the court to “make specific findings that the stipulation is fair and equitable, is supported by consideration described in the findings, and that full disclosure of each party’s financial circumstances has occurred.”