This opinion will be unpublished and

may not be cited except as provided by

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






In re the marriage of:

Lee Mary Templin, petitioner,





Allen Herbert Templin,



Filed January 7, 2003


Randall, Judge


McLeod County District Court

File No:  F8-93-574



Scott R. Timm, Timm Law Office, 41 West Second Street, Waconia, MN 55387 (for appellant)


Diane L. Gordon, Jensen & Gordon, 22 North Main Street, Hutchinson, MN 55350 (for respondent)



Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Willis, Judge.



U N P U B L I S H E D   O P I N I O N




            In this maintenance dispute, appellant argues that the district court (a) understated respondent’s income by failing to consider his overtime income; and (b) should have found that her medical problems precluded her from supporting herself.  We find no abuse of discretion.  We affirm.


            The marriage of appellant wife and respondent husband was formally dissolved on September 24, 1993.  Neither party was represented by counsel during their dissolution proceeding; instead, the parties used a paralegal service to draft the required documents.  As part of the dissolution, the homestead was transferred to the parties as tenants in common.  Respondent was responsible for the mortgage payments and all real estate taxes, repairs, maintenance, and other expenses of the homestead.  In addition, respondent was required to pay the majority of the marital debt under the dissolution decree, approximately $40,000.  The parties' 1993 dissolution judgment specifically reserved the issue of maintenance.     

In 2001, appellant brought the present action for maintenance.  The district court found that appellant had medical problems, including a mitral valve prolapse, chronic fatigue syndrome, past back surgeries, and depression.   However, both the district court and appellant's medical expert noted that appellant was employed, part-time, as an emergency medical technician (EMT) and earned additional money babysitting her grandchild approximately 40 hours per week.  Appellant also received one-half of the gross rental income from the homestead.  The court found the fair market value of the homestead to be $145,000, less an outstanding mortgage of $13,615.  The district court ordered respondent to buy out appellant's interest in the homestead, thus providing appellant additional assets.  




We will not reverse a district court's determination of a spousal maintenance award absent an abuse of discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  To rule the district court abused its discretion, the court must have resolved the question in a manner "that is against logic and the facts on record * * * ."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).

            The statutory scheme for determining spousal maintenance is contained in Minn. Stat. § 518.552 (2002).  Subdivision 1 provides:

In a proceeding for dissolution of marriage * * * the court may grant a maintenance order for either spouse if it 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 * * * . 


Id., subd. 1 (2002) (emphasis added).  Subdivision 2 states that the maintenance order "shall be in amounts and for periods of time * * * as the court deems just * * * after considering all relevant factors * * *."  Id., subd. 2 (2002).  Thus, subdivision 1 is meant to determine whether support should be granted at all, and subdivision 2 is meant to determine the amount and duration, should the court determine support is appropriate. 

            In this case, it is implicit the court believed ordering respondent to buy appellant's interest in the homestead would allow appellant to invest this money and, combined with her other income, meet her needs.  Thus, subdivision 1(a) is not met.  The court also concluded that wife "has the means to be self-supportive."  Id.  Thus, subdivision 1(b) is not met.  Given that neither subsection (a) nor (b) is met, the district court was well within its discretion to deny the request for maintenance.  Significant evidence supports the district court's conclusion that appellant is capable of supporting herself.  First, appellant testified that her current job is "suited to her disability" because:

I'm able to stay at home.  I don't have to be at the job steady.  I can eat, sleep, go out, sit up, sit down, watch television, play games; whatever I want to do until I get a call.


Appellant testified that during an average month, she worked between two and four nights as an EMT.  In addition, appellant testified that she worked as a baby-sitter for her daughter approximately 40-hours per week and was paid "about a dollar an hour."  By her own admission, appellant is capable of working almost full-time as a child-care provider, and doing additional part-time work as an EMT.

            In his deposition, Dr. Douglas L. Wagoner stated that appellant would have a hard time holding down any kind of stressful job because it would be hard for her to concentrate at a full-time job.  Dr. Wagoner stated that appellant should not engage in jobs that were physically demanding or highly stressful.  He did not state that appellant could not do any work and specifically took note of the different jobs that she had.  Beyond this, Dr. Wagoner did not discuss what careers would or would not be open to appellant.

            Appellant is a trained EMT.  She received this education and training while suffering from her current medical problems.  She has expressed no plans for further education or training, instead choosing to work between two and four nights a month and donate time as a child-care provider for her daughter.  Appellant has not provided any evidence that she has tried and failed to find work.  Without evidence that she is incapable of supporting herself, we cannot say the district court's denial of maintenance was an abuse of its discretion. 

            Because appellant has not met the prerequisites of spousal maintenance under Minn. Stat. § 518.552, subd. 1 (2002), we do not address respondent's argument that he is unable to pay.  We note, however, that were we to address this argument, appellant failed to cite any authority for the proposition that respondent's income for maintenance purposes can be deemed to include income from working overtime that is not required by his employer and where there is no evidence that respondent has intentionally reduced his income in an attempt to bypass his maintenance obligations.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that, to prevail on appeal, party must show both error and prejudice).