This opinion will be unpublished and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

C6-01-2270

 

In re:

 

Thomas John Neilon, petitioner,

Appellant,

 

vs.

 

Marcia Marie Neilon,

Respondent.

 

Filed August 20, 2002

Affirmed as modified

Kalitowski, Judge

 

Freeborn County District Court

File No. FX001156

 

Brian T. Pierce, 310 First Street, P.O. Box 227, Jackson, MN 56143 (for appellant)

 

Craig M. Byram, Hoversten, Johnson, Beckmann & Hovey, LLP, 807 West Oakland Avenue, Austin, MN 55912 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Thomas Neilon contends the district court abused its discretion by:  (1) awarding almost all of the marital assets to respondent Marcia Neilon; (2) awarding respondent $1,000 per month in permanent maintenance; (3) ordering appellant to name respondent as his surviving spouse on his Public Employees Retirement Association (PERA) account and awarding respondent $1,826.50 per month from this account; and (4) ordering him to pay part of respondent’s attorney fees.  We affirm but modify the judgment to eliminate the provision whereby the court divested itself of jurisdiction to consider future motions to modify maintenance.

D E C I S I O N

 

I.

Appellant Thomas Neilon argues that the district court abused its discretion by awarding most of the parties’ marital assets to respondent Marcia Neilon.  We disagree.

The district court has broad discretion when determining the division of marital property.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  The reviewing court must affirm the district court decision “if it has an acceptable basis in fact and principle.  Bollenbach v. Bollenbach, 285 Minn. 418, 426-27, 175 N.W.2d 148, 154 (1970) (citations omitted). 

            The district court determined that respondent was unable to meet her reasonable needs because she had limited her earning capacity to help further appellant’s career.  Because the marital estate is small, the court awarded more marital personal property to respondent reasoning that it will help her meet her reasonable needs and lower appellant’s maintenance obligation to her.  The court also found that appellant can meet his needs now and in the future with his cash flow surplus of $7,775 annually.  Appellant has his salary, 50% of the marital retirement benefits, and 100% of the future nonmarital benefits from his PERA pension plan with which to meet his needs.  The district court’s findings are supported by the evidence, and the distribution is equitable.  We conclude the district court did not abuse its discretion.

II.

            Appellant contends the district court abused its discretion by awarding respondent $1,000 per month in permanent maintenance, claiming the district court’s findings are erroneous and do not support the award in light of the property distribution.  We disagree.

            Determination of spousal maintenance is a matter within the district court’s discretion that we will not disturb on appeal absent an abuse of that discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused its discretion.

 

Rutten, 347 N.W.2d at 50 (citation omitted).

            Generally, an award of rehabilitative maintenance contemplates that the recipient will retrain to become self-supporting.  Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986); see Minn. Stat. § 518.552, subd. 1(a) (2000).  Alternatively, an award of permanent maintenance may be imposed after considering all relevant factors, including:  the financial resources of the party seeking maintenance, the party’s ability to meet needs independently; the probability, given the party’s age and skills, of becoming self-supporting; the length of the marriage and, “in the case of a homemaker, the length of absence from employment and the extent to which any education skills, or experience have become outmoded and earning capacity has become permanently diminished”; the loss of employment opportunities by the spouse seeking maintenance; and the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance.  Minn. Stat. § 518.552.

            This was a long-term, traditional marriage in which respondent was absent from the full-time labor market because she was raising children and taking care of the home.  Appellant benefited from the arrangement not only because respondent was the primary care provider of their children, but also because respondent took care of the daily household duties allowing him to focus on his career.  Thus, the record indicates this is the type of case for which permanent maintenance was contemplated.  Moreover, the district court, mindful of balancing respondent’s needs with the amount of maintenance appellant would be paying, divided the property in respondent’s favor to reduce appellant’s maintenance obligation.  We further note that the maintenance ends when respondent receives her first pension payment.  We conclude the court did not abuse its discretion by awarding permanent maintenance. 

            Appellant also claims the court relied on incorrect figures in determining respondent’s monthly needs.  We disagree.  The court based its decision on Exhibit 21 and appropriately included reasonable estimates of respondent’s future needs.  Finally, appellant disputes the inclusion of disability and life insurance, arguing respondent did not have them when they were married.  But the record supports the court’s findings as to respondent’s need for insurance.  We conclude the award was within the court’s discretion.

III.

            Appellant argues the district court abused its discretion by ordering appellant to name respondent as his surviving spouse on his PERA account.  We disagree.  The court’s order only requires appellant to list respondent as the beneficiary of survivor benefits related to the marital benefits awarded to her under his PERA account.  This limits the benefits to the current value and does not include future monies accrued.

            Appellant also contends the court abused its discretion by awarding $1,826 per month to respondent from his PERA account.  But the record indicates this amount equals respondent’s one-half share of the amount the current, marital value will yield in monthly benefits when appellant turns 65.  We conclude the court did not abuse its discretion.

IV.

Appellant argues the district court abused its discretion in ordering appellant to pay part of respondent’s attorney fees, contending that because respondent received $125,000 in marital assets and appellant was ordered to pay most of the debt, respondent had the means to pay her own fees.  We disagree.  An order for attorney fees “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  And a reviewing court will rarely reverse a district court’s decision allocating attorney fees.  Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990).

The district court shall award attorney fees to enable a party to carry on or contest the proceeding if it finds

            (1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

 

Minn. Stat. § 518.14, subd. (1) (2000).

            Here, the court found the marital assets to be small and respondent unable to meet her reasonable monthly expenses.  The record supports that respondent does not have the means to pay the fees.

In addition, the court found the parties had no marital debt because the marital debt was paid with the proceeds of the sale of the house.  Thus, any debt appellant has accrued since their separation is his debt.  We conclude it was within the district court’s discretion to award respondent attorney fees.

V.

Finally, both parties agree that the district court erred in including a provision that divests the court of jurisdiction to consider future maintenance-modification motions.  We therefore modify the judgment by eliminating this provision.

Affirmed as modified.