This opinion will be unpublished and

may not be cited except as provided by

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







Kelly Marie Van Riper, petitioner,





Richard Allen Van Riper,



Filed December 3, 2002

Affirmed in part and remanded

Wright, Judge


Hennepin County District Court

File No. DC252399



Becky Toevs Rooney, 510 Marquette Avenue, Suite 200, Minneapolis, MN  55402 (for respondent)


Suzanne M. Remington, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 560, Eden Prairie, MN  55344 (for appellant)


            Considered and decided by Minge, Presiding Judge, Wright, Judge, and Mulally, Judge.*

U N P U B L I S H E D   O P I N I O N


In this marital-dissolution dispute, appellant challenges the district court’s award of permanent spousal maintenance and attorney fees to respondent.  Appellant argues that the district court (1) should not have imputed income to appellant, (2) should have imputed income to respondent, (3) should not have made respondent’s maintenance award permanent, and (4) abused its discretion by awarding respondent conduct-based attorney fees.  We affirm the refusal to impute income to respondent.  Because the district court’s findings do not support its determination of appellant’s income, we remand the questions of (1) whether to average appellant’s income or impute income to appellant, (2) the amount of appellant’s maintenance obligation, and (3) the propriety of awarding respondent conduct-based attorney fees. 


            Appellant Richard Allen Van Riper, now age 45, and respondent Kelly Marie Van Riper, now age 40, married in December 1980.  They have no minor children.  Appellant is employed as a machinist.  Respondent has a GED and is employed as a school bus driver.

            Respondent petitioned to dissolve the parties’ marriage in October 1999.  In September 2001, appellant and respondent entered into a partial marital-termination agreement.  The parties submitted the contested issues of spousal maintenance and attorney fees to the district court.

            Appellant claimed a 2001 gross annual income of just over $35,000, producing monthly net earnings of about $2,000.  Appellant listed monthly expenses of $2,093, plus a $610 monthly payment to his father for a loan that appellant had received to pay respondent pursuant to the stipulated property settlement.  Historically, appellant has had a gross annual income that fluctuated from approximately $40,000 to $72,000, earning $63,533 in 1996, $65,239 in 1997, $72,488 in 1998, $44,005 in 1999, and $39,569 in 2000.  The record suggests that appellant’s earnings were higher before 1999 because he worked overtime. 

Respondent had a gross annual income from two jobs in 2000 in the amount of $9,442.  In 2001, she was employed and had a net monthly income of about $1,100.  Respondent also receives $650 per month in rental income.  Respondent described her work history during the marriage as limited to providing foster-care services for Hennepin County, working as an “in-home mother’s helper,” and working as a bartender.  Respondent listed monthly expenses of just over $2,000.

Appellant disputed respondent’s account of her work history.  He claimed that she had several secretarial jobs during the marriage, annual income of up to $30,000 from her foster-care work, and an hourly wage of up to $18 when she worked as a bartender.

The district court found that respondent had a net monthly income of about $1,700 and expenses of $2,900.  As a result, the court found that respondent was “not fully capable of providing for her own financial support,” and thus “in need of spousal maintenance.”  The district court found no reason for the sharp decline in appellant’s income in the two years preceding the dissolution and calculated an average gross annual income for appellant of $65,161, with a monthly net income of $3,640.  Based on these findings, the district court ordered appellant to pay $700 per month in permanent spousal maintenance.  The district court further found that the combination of appellant’s average annual gross income, as calculated by the court, of more than $65,000, respondent’s primary role of parent and homemaker during the 20-year marriage, and respondent’s limited education and training, made this “clearly a case in which an award of permanent spousal maintenance is appropriate.”  Accordingly, the district court ordered appellant to pay respondent $3,000 in attorney fees upon concluding that appellant “unreasonably contributed to the length and expense” of the dissolution proceeding by advocating against an award of permanent spousal maintenance.

Appellant moved for amended findings of fact or, in the alternative, for a new evidentiary hearing.  The district court denied appellant’s motions and further ordered him to pay respondent’s attorney fees for defending the motion.  This appeal followed.



            A district court’s findings of fact in support of a spousal-maintenance obligation will not be set aside unless clearly erroneous.  Bourassa v. Bourassa, 481 N.W.2d 113, 115 (Minn. App. 1992)A finding is clearly “erroneous if the reviewing court is left with the definite and firm conviction that a mistake has been made.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted).  The reviewing court views evidence in the light most favorable to the district court’s findings and may not substitute its judgment if the record would support more than one conclusion.  See Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  A district court abuses its discretion when it resolves a matter in a manner that is “against logic and the facts on the record.”  Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001) (quotation omitted).

            Appellant argues that the district court abused its discretion by imputing income to him without making the necessary findings of voluntary underemployment or other bad faith.  Bourassa, 481 N.W.2d at 116.  The district court considered the historical range of appellant’s income, as well as his current earnings.  It is unclear from the record, however, whether this method of income determination was permissible averaging or an imputation of income without the requisite findings of voluntary underemployment or bad faith.

In the December 2001 dissolution judgment, the district court’s findings state that (1) between 1996 and 1998, appellant’s gross annual income was “between $61,000 and $72,000,” (2) appellant’s gross annual income “has declined since just prior to the commencement of these dissolution proceedings,” (3) appellant’s 1999 and 2000 gross annual incomes were $44,005 and $39,569, respectively, (4) appellant claimed a gross annual income of “approximately $35,000” at the time of the order, and (5) appellant provided “[n]o explanation” for the “substantial decline” in his income since respondent initiated the dissolution proceeding.  Based on these findings, the district court ruled that appellant’s gross annual income should be calculated as the average of his annual incomes for 1996 through 2000. 

Income averaging can be used to address fluctuations in a party’s income.  See Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987) (stating that “[a]n average takes into account fluctuations and more accurately measures income”).  The record, however, shows that while appellant’s gross annual income increased each year before respondent petitioned for dissolution, it decreased each year after respondent filed the petition.  Without additional findings as to causation, the record does not reflect the income fluctuations that are required for an obligor’s income to be averaged.  Compare Sefkow v. Sefkow, 372 N.W.2d 37, 48 (Minn. App. 1985) (reversing use of income averaging where support obligor’s income increased annually), remanded on other grounds, 374 N.W.2d 733 (Minn. 1985), with Veit, 413 N.W.2d at 606 (affirming use of income averaging for variable income due to allocation for personal expenses, multiple jobs, or bonuses).

            If a district court finds that a maintenance obligor’s income has decreased in bad faith, or as a result of voluntary underemployment, the district court may impute income and set the maintenance obligation based on the imputation.  See, e.g., Walker v. Walker, 553 N.W.2d 90, 95 n.1 (Minn. App. 1996); Bourassa v. Bourassa, 481 N.W.2d 113, 116 (Minn. App. 1992).  In this case, however, the district court did not make explicit findings regarding the reason for appellant’s decreased income. 

Under Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989), if a district court functionally imputes income to an obligor, an appellate court can infer a finding of bad faith on a record that clearly shows that the district court believed that the income was decreased in bad faith.  Here, the record is not sufficient to support an implied finding of bad faith.  The district court’s finding that appellant’s income has, without explanation, significantly decreased since shortly before respondent petitioned to dissolve the marriage is ambiguous as to the cause.  It could suggest that the district court believed that appellant decreased his income in bad faith.  It is undisputed, however, that the district court calculated appellant’s income based on a 40-hour work week.  Thus, this record does not clearly show that appellant’s decreased income is a result of appellant’s bad-faith choice to be underemployed.  For this reason, we remand the issue for the district court to specifically address the extent, if any, to which the decrease in appellant’s income is a result of appellant’s bad faith and the propriety of including in appellant’s income, by income averaging or otherwise, amounts appellant could earn by working overtime. 


Appellant next argues that the district court abused its discretion by failing to impute income to respondent.  Appellant contends that the district court should have imputed income to respondent because the record shows that (1) respondent worked only part-time as a bus driver despite past annual income of as much as $30,000 for providing foster care, (2) respondent is qualified as a bartender and was employed in that capacity prior to dissolution, and (3) respondent is only 39 years old and is no longer responsible for any minor children.  We disagree.

Imputing income to a spousal maintenance obligee also requires a finding of bad faith underemployment.  Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997).  A court may not find bad faith underemployment, however, where

a homemaker has continued to work the same part-time hours at the time of dissolution as she did during the marriage, has been employed in the same type of position as she was during the marriage, and where there is no evidence of any intent to reduce income for the purposes of obtaining maintenance.



Appellant’s affidavit addressing respondent’s past earnings and present qualifications was the only evidence submitted in support of imputing income to respondent.  Respondent’s affidavit contradicted appellant’s claims about her past income and present qualifications.  The district court was required to weigh the evidence and resolve the competing claims.  It was, therefore, within the district court’s discretion to find that respondent was not underemployed in bad faith.  Such finding of fact will not be disturbed on review unless it is clearly erroneous.  Bourassa, 481 N.W.2d at 115; cf.Straus v. Straus, 254 Minn. 234, 235, 94 N.W.2d 679, 680 (1959) (stating that appellate courts defer to district court resolution of factual issues presented by conflicting affidavits).

Appellant relies on Hecker v. Hecker, 543 N.W.2d 678, 681 (Minn. App. 1996), aff’d, 568 N.W.2d 705 (Minn. 1997), to support his claim that respondent’s voluntary underemployment or bad faith is established by respondent reducing her income in order to secure spousal maintenance.  The facts in Hecker, however, are distinguishable from those of the instant case.  In Hecker, this court affirmed the district court’s imputation of income to a maintenance recipient where the district court found that she willfully disregarded her stipulated obligation to rehabilitate.  See id.  Here, however, the district court found that respondent was incapable of adequately supporting herself, and nothing in the record leads us to conclude that respondent willfully disregarded any obligation or agreement to rehabilitate. 

Because the record regarding respondent’s income amply supports the district court’s decision not to impute income to her, the district court did not abuse its discretion by refusing to do so. 


Appellant also argues that the district court abused its discretion by awarding $700 of permanent monthly maintenance to respondent.  The district court is given broad discretion in determining a maintenance award, and its determination will not be set aside absent an abuse of discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  A district court abuses its discretion when it resolves a matter in a manner that is “against logic and the facts on the record.”  Prahl, 627 N.W.2d at 702. 

Whether to grant maintenance is governed by Minn. Stat. § 518.552, subd. 1 (2002), which provides that the district court may make an award if it finds 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.  If the district court determines under one of these provisions that a maintenance award is proper, it will next consider the factors listed in Minn. Stat. § 518.552, subd. 2 (2002), to determine the amount and duration of the award.  Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997).  No single factor is dispositive.  The district court must balance the recipient’s need against the obligor’s financial condition.  See Erlandson, 318 N.W.2d at 39-40.  Among the factors to be considered are (1) the financial resources of the party seeking maintenance, (2) the duration of the marriage, (3) the length of a homemaker’s absence from employment, and (4) the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance.  Minn. Stat. § 518.552, subd. 2.  Where there is uncertainty as to a maintenance recipient’s ability to be self-sufficient, the district court “shall order a permanent award” and leave its order open for future modification.  Id. at subd. 3 (2002); see also Minn. Stat. § 645.44, subd. 16 (2002) (stating that “‘[s]hall’ is mandatory”). 

            Part of appellant’s challenge to the amount of his maintenance obligation is based on his claim that he lacks the ability to pay maintenance.  Because we are remanding the question of appellant’s income to the district court, we must also remand the determination of the amount of appellant’s obligation for reevaluation in light of the district court’s determination regarding appellant’s income.  A second part of appellant’s challenge to the amount of his maintenance obligation is based on his contention that respondent should not be awarded $700 in monthly maintenance, because the district court erred by not imputing income to her.  As discussed above, however, the district court’s decision not to impute income to respondent was well within its sound discretion.  Because the record supports the district court’s determination that respondent lacks the financial resources and ability to provide for her needs, we affirm the district court’s maintenance award.

Appellant also argues that if the award of spousal maintenance is found to be appropriate, respondent should be awarded only temporary rehabilitative maintenance.  Appellant’s reliance on Maher v. Maher, 393 N.W.2d 190 (Minn. App. 1986), in which this court affirmed a district court’s award of temporary maintenance during a period of rehabilitation and adjustment, however, is misplaced.  In Maher, this court held only that the district court’s award of temporary spousal maintenance was not an abuse of its broad discretion to make spousal maintenance awards.  Id. at 194-95.  Well within the exercise of its broad discretion, the district court in the instant case made findings amply supported by the evidence that respondent needs permanent maintenance because she is not fully capable of providing her own financial support and is not likely to attain self sufficiency in the foreseeable future.  We conclude, therefore, that the district court did not abuse its discretion when it ruled that any maintenance awarded to respondent would be permanent. 


            Based on its determination that this “is clearly a case in which an award of permanent spousal maintenance is appropriate,” the district court awarded respondent attorney fees because appellant “unreasonably contributed to the length and expense of this proceeding” by arguing that respondent is not entitled to permanent spousal maintenance.  Appellant challenges this award. 

            A district court may, “in its discretion,” award conduct-based attorney fees against a party who “unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2002).  Because conduct-based fee awards are made at the district court’s “discretion,” we will not alter a district court’s fee award unless the district court abused its discretion in making that award.  See Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001) (discussing conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1). 

            The district court’s basis for the fee award was appellant’s opposition to an award of permanent maintenance.  Because the issue of appellant’s income is being remanded and that, in turn, requires a remand of the maintenance issue, we must also remand the conduct-based attorney fee award for reevaluation in light of the district court’s resolution of the income and maintenance questions.  Respondent seeks additional attorney fees on appeal.  Therefore, the district court on remand shall also address what amount, if any, of attorney fees to award for this appeal.  See id. at 819-20 (remanding issue of appellate attorney fees for determination in light of rulings made on remand).

            Whether to reopen the record on remand shall be discretionary with the district court. 

            Affirmed in part and remanded. 


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