This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In re:


Kathleen Ann Benshoof,

f/k/a Kathleen Ann Kratz, petitioner,





James Allen Benshoof,



Filed ­­­November 26, 2002

Affirmed as modified in part, and reversed in part

Harten, Judge


Hennepin County District Court

File No. DC252160


M. Sue Wilson, James J. Vedder, Eva Cheney Hatcher, Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for appellant)


Robert M. Smith, 701 Fourth Avenue South, Suite 500, Minneapolis, MN 55415 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N



            The marriage of appellant Kathleen Benshoof and respondent James Benshoof was dissolved following a trial during which the district court refused to let respondent testify as to the nonmarital status of one of the parties’ assets.  The judgment awarded appellant $2,800 monthly in spousal maintenance until either her remarriage or the death of one of the parties.  Appellant brought posttrial motions (1) for a new trial, or, in the alternative, to amend the judgment as to spousal maintenance, (2) to compel discovery from respondent, and (3) for both need-based and conduct-based attorney fees.  Respondent also moved for conduct-based attorney fees.  The district court granted appellant’s motion for $2,714 in conduct-based attorney fees but denied all other motions.  We see no abuse of discretion in the spousal maintenance award but, because we hold that it is an error of law to label as “temporary” a maintenance award terminating only with the remarriage of the obligee or the death of one of the parties, we modify the award to designate it as permanent and affirm it as modified.  Because the district court did not abuse its discretion in denying appellant’s motion to compel discovery, in excluding respondent’s evidence, or in denying respondent’s motion for attorney fees, we affirm those decisions.  But because the district court abused its discretion in awarding conduct-based attorney fees to appellant, we reverse that award.  Thus, we affirm as modified in part and reverse in part.



            Appellant challenges the denial of her motions to amend the spousal maintenance award and to compel posttrial discovery; by notice of review, respondent challenges an evidentiary ruling, the award of attorney fees to appellant, and the denial of his motion for attorney fees.

1.         Spousal Maintenance

            This court reviews a district court’s maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).

            The district court found that appellant’s net monthly income was $2,087[1] and her reasonable monthly expenses were $5,577; it found that respondent’s net monthly income was $8,205, his net monthly expenses were $5,282, and his ability to pay maintenance was $8,205 less $5,282, or $2,923.

Appellant challenges the finding regarding respondent’s ability to pay maintenance on the ground that the district court failed to consider the income tax consequences of paying spousal maintenance.  Minnesota law does not require a district court to consider the possible tax consequences of a spousal maintenance award.  Appellant relies on Maurer v. Maurer, 623 N.W.2d 604, 607-08 (Minn. 2001) (district court has discretion to consider tax consequences of a marital property award).  But her reliance is misplaced because her reasoning is fallacious: she argues that, because considering tax consequences is within a district court’s discretion, not considering tax consequences is not within its discretion. There was no abuse of discretion in not considering the tax consequences of spousal maintenance. 

Appellant also challenges the amount of the award, $2,800 monthly, arguing that respondent could afford to pay $2,923.  But spousal maintenance is determined not by what the obligor can afford to pay but by what the obligee needs to meet reasonable monthly expenses. See Minn. Stat. § 518.552 (2000) (district court may award maintenance if obligee lacks sufficient property to provide for reasonable needs or is unable to provide adequate self-support).  Appellant offers no support for her implication that a spousal maintenance award should equalize the parties’ financial positions.  The district court did not abuse its discretion in setting spousal maintenance at $2,800 monthly.

We affirm the maintenance award, but modify the district court’s designation of the award as temporary and designate it as permanent.  The judgment provided for a monthly payment “until either party’s death or [appellant’s] remarriage, whichever first occurs” but denominated this “temporary spousal maintenance.”  Minn. Stat. § 518.64, subd. 3 (2000), provides that, in the absence of the parties’ written agreement or an express provision in the judgment to the contrary, “the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.”  Because the award as it stands may be terminated only by one of the two events specified in the statute, we modify the judgment accordingly.  See Minn. Stat. § 518.552, subd. 3 (“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.”).  The district court here retained jurisdiction to modify the award.  The award is properly designated in law as a permanent award.

2.         Motion to Compel Discovery

A district court has wide discretion to issue discovery orders and its orders will not be reversed absent a clear abuse of that discretion.  Shetka v. Kueppers, VonFeldt, and Salmen, 454 N.W.2d 916, 921 (Minn. 1990).

In the judgment, the district court found that:

[Respondent’s] 2000 tax return was not prepared at the time of trial.  Without receiving permission of the court [appellant] submitted post-trial argument requesting consideration of Respondent’s 2000 tax return.  Respondent opposed [appellant’s] request. [Appellant’s] post-trial submission is not appropriate and has not been considered.


Appellant cites no persuasive authority to support her view that a district court abuses its discretion by not compelling post-trial discovery and incorporating the results of post-trial discovery in its decision. 

Appellant argues that respondent waived his right to object to post-trial discovery by not objecting within 30 days of her second request for the 2000 tax returns.[2]  However, respondent’s attorney had already objected to appellant’s first request for the tax returns in letter arguments he submitted at the direction of district court.  Respondent did not waive his right to object to discovery, and the district court did not abuse its discretion by not compelling post-trial discovery.  

3.         Evidence of Profit-Sharing Account

            A decision on the sufficiency of the foundation for evidence is within the discretion of the district court.  McKay’s Family Dodge v. Hardrives, Inc., 480 N.W.2d 141, 147 (Minn. App. 1992), review denied (Minn. 26 Mar. 1992). 

            Respondent worked for BRW from 1971 to 1980.  The parties were married in 1976.  While working for BRW, respondent participated in a profit-sharing plan.  The funds in his BRW profit-sharing account, a total of $24,637, were withdrawn when he left BRW in 1981; they are now in a First Trust IRA worth $93,854.  Respondent contends that the percentage of the amount earned prior to his marriage is nonmarital property and wanted to testify to this.  But he produced no evidence as to when he entered the plan; the affidavit he provided as an offer of proof stated only that “I believe that I entered the plan in my second year of employment.” 

The district court found that:

Documents Respondent offered regarding Respondent’s non-marital claim to his First Trust IRA to prove his claim did not establish that he had a non-marital interest in his BRW profit sharing plan, what portion of the BRW profit sharing plan was marital as compared to non-marital, or what portion of the BRW profit sharing plan had been rolled into his First Trust IRA.


The record supports this finding.  “When nonmarital and marital property are commingled, the nonmarital asset may lose that status unless the party [claiming it] can trace it to a nonmarital source.  Swick v. Swick, 467 N.W.2d 328, 330 (Minn. App. 1991 (citation omitted), review denied (Minn. 16 May 1991).  Respondent failed to trace any amount or percentage of the IRA to a nonmarital source.  Thus, even assuming that it was error for the district court not to admit respondent’s testimony, the error did not prejudice respondent.  “Entitlement to a new trial on the grounds of improper evidentiary rulings rests upon the complaining party’s ability to demonstrate prejudicial error.”  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (quotation omitted).  Respondent provided no detailed evidence as to when he entered the plan or what his share was worth at the time he married; absent any such evidence, the district court could only have speculated that any given amount or percentage of the account was respondent’s nonmarital property. 

4.         Attorney Fees

            Both parties sought attorney fees under Minn. Stat. § 518.14, subd. 1 (2000), providing that the district court may award fees “against a party who unreasonably contributes to the length or expense of the proceeding.”  An award of attorney fees under Minn. Stat. § 518.14, subd. 1, is within the district court’s discretion and will not be disturbed absent a clear abuse of discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. 18 Feb. 1999). 

            a.         Denial of Respondent’s Motion

The district court denied respondent’s motion for conduct-based attorney fees on the ground that “[r]espondent provided only one example of what, in his view, constitutes excess, unnecessary, repetitive or irrelevant materials or motions in this proceeding.”  Respondent claims that he provided several examples.  However, while his affidavit describes the conduct of appellant and her attorney in perjorative language, only his complaint that her demands for his 2000 tax returns were duplicative could be construed as contributing unreasonably to the length and expense of the proceeding.  There was no abuse of discretion in the district court’s finding that this was not a sufficient basis for an award of attorney fees.

b.         Grant of Appellant’s Motion

The district court granted appellant’s motion for $2,713.75 in conduct-based attorney fees after finding three instances when respondent “unreasonably contributed to the length and expense of this proceeding.”  The record supports only one of these findings: respondent’s objection to the untimeliness of appellant’s motion to amend lacked merit because it ignored the additional days allowed for service by mail.

But the district court’s second finding, that respondent brought an untimely motion to amend, is not supported by the record.  Respondent did not file a motion to amend, timely or untimely.  The district court construed as a motion to amend a single paragraph at the end of respondent’s eight-page affidavit opposing appellant’s motion to amend. [3]

            I believe that the Finding XIII(7) should be amended in part.  The Court found that “Respondent testified that he intends to retire at age sixty-five (65).  This was not rebutted.”  In fact, I believe that my testimony was that I intended to retire at age sixty-two (62). 


The transcript shows that respondent was correct; he did testify that he intends to retire at age 62.

Respondent sought no other change to the 38-page judgment.  Bringing a formal, (if timely), motion to amend for a simple clerical error would have done more to “unreasonably contribute to the length and expense of the proceeding” than adding a paragraph to an affidavit.  Using this paragraph as a basis for conduct-based attorney fees was an abuse of discretion. 

The district court’s third basis for awarding conduct-based attorney fees was the finding that respondent made

the unreasonable argument that [appellant] should not receive COBRA benefits when [appellant] stated in her motion that she would be solely responsible for paying all costs associated with obtaining the benefits.


But appellant did not state this in her motion.  The motion reads:

 [Appellant] wishes to obtain COBRA coverage through Respondent’s business * * *.  * * * [R]espondent shall provide medical insurance for the benefit of [appellant] through [his business] at no additional cost to respondent.


Appellant does not say that she will be responsible for the cost; she implies that respondent’s business should pay it.  Respondent’s attorney stated that

            [i]f [appellant] wants to have COBRA coverage under the law and pay for her own health insurance, we certainly have no problem with that, and never did.  We were objecting to her trying to shift the burden of her health insurance costs from her to him.


In light of appellant’s failure to make clear that she would pay the cost of insurance provided through respondent’s company, respondent’s argument was not unreasonable and not a basis for imposing attorney fees.

Because two of the three findings the district court used as the basis for conduct-based attorney fees are not supported by the record and are clearly erroneous, that award was an abuse of discretion.

In summary, we modify the district court’s designation of appellant’s maintenance award as temporary and otherwise affirm the denial of appellant’s motion for a new trial or amended findings on spousal maintenance.  We affirm the denial of appellant’s motion to compel discovery, the exclusion of respondent’s evidence on nonmarital ownership of the IRA, and the denial of respondent’s motion for conduct-based attorney fees.  Finally, we reverse the award of conduct-based attorney fees to appellant. 

            Affirmed as modified in part, and reversed in part.

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

[1] This finding is based exclusively on appellant’s salary; the district court also found that appellant has annual investment income of approximately $2,000, which would add about $166 to her net monthly income.  Accordingly, her net monthly income is $2,253.

[2] Respondent’s counsel did file an objection 31 days after the request.

[3] Respondent’s paragraph would have been more accurately construed as a motion under Minn. R. Civ. P. 60.01, providing that “[c]lerical mistakes in judgments * * * may be corrected by the court at any time * * * on the motion of any party * * * .”