This opinion will be unpublished and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:


James Marvin Barthel, petitioner,





Jennifer Marie Barthel,



Filed March 18, 2003

Affirmed in part, reversed in part, and remanded

Harten, Judge


Ramsey County District Court

File No. FX-98-1753


Jane Binder, Christine N. Howard, Bender Law Offices, P.A., Suite 200, 510 Marquette Avenue South, Minneapolis, MN 55402-1121 (for appellant)


Martin L. Swaden, Swaden Law Offices, 7301 Ohms Lane, Suite 550, Edina, MN 55439 (for respondent)


            Considered and decided by Harten, Presiding Judge, Peterson, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N




            On appeal from a dissolution judgment, appellant wife challenges the adequacy of her spousal maintenance award.  By notice of review, respondent husband challenges the duration of the maintenance award.  We affirm in part, reverse in part, and remand.


            Appellant Jennifer Barthel and respondent James Barthel, both 47, were married for 22 years.  They have three children; appellant has sole physical custody of the two minor children.  Respondent is president of a machine company and has an annual income of $197,954.  Appellant earned an M.B.A. in 1985 but has not worked outside the home since 1986, when she quit her job in the banking industry to raise the parties’ children.

Both parties submitted reports of vocational evaluators.  Respondent’s expert stated that appellant could immediately join the workforce and earn $40,000 per year initially and $60,000 to $70,000 within a few years.  Appellant’s expert stated that appellant could either earn $28,000 to $35,000 by returning to school for training in her field of interest or earn $25,000 to $35,000 by becoming proficient with computers and returning to work in the banking industry.

The district court’s findings on appellant’s employability were unclear.  The district court found that respondent’s expert’s projections were “speculative, exaggerated and lacking in credibility” and that it was “more likely that [appellant] would only earn $25,000 to $35,000 if she were to reenter the workforce today.”  But the district court also found:

It is uncertain * * * whether [appellant] will be able to find appropriate employment which would provide her with an income sufficient to meet her needs based on the marital standard of living.  Thus, the testimony and reports of both [evaluators] to the extent they demonstrated that [appellant] might be able to find employment are misplaced.  Whether [appellant] can now earn $25,000 or $40,000 or $60,000 is not known, and it is not known if she has the ability to meet her needs.


Finally, the district court found that appellant’s health problems, including irritable bowel syndrome and varicose veins, would make full-time employment difficult.

            The district court initially awarded appellant $4,000 per month in temporary spousal maintenance for 24 months.  Appellant successfully moved for a new trial on the issues of maintenance and attorney fees.  The district court then awarded appellant $4,000 per month in permanent maintenance and $10,000 in attorney fees.  Appellant challenges the amount of the maintenance, and respondent challenges its duration.


Because there was no motion for a new trial after the second trial, we review only “whether the evidence sustains the findings of fact and whether the findings sustain the conclusions of law and the judgment.”  Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989) (citation omitted).  We review a district court’s maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).

1.         Amount of Maintenance

A district court may award maintenance if it finds that, in view of the standard of living during the marriage, a spouse lacks sufficient property to provide for reasonable needs or is unable to provide adequate self-support through appropriate employment.  Minn. Stat. § 518.552, subd. 1 (2002).  In determining the amount and duration of maintenance, the district court considers the factors in Minn. Stat. § 518.552, subd. 2 (2002). “The issue is, in essence, a balancing of the recipient’s need against the obligor’s ability to pay.”  Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001) (citation omitted).

Despite finding that appellant had reasonable monthly expenses of $7,433 and no significant income and that respondent would have a monthly surplus of almost $4,000 after paying maintenance, the district court awarded appellant only $4,000 per month in spousal maintenance.  Combined with $1,780 per month in child support, the maintenance award leaves appellant with a monthly deficit of $1,653.  The district court did not explain how appellant would make up this deficit.  Although respondent asserts that the district court assumed appellant would return to work, its findings on her employability and earning potential were unclear.

            We reverse and remand for findings clarifying how appellant will meet her reasonable monthly expenses and for an appropriate maintenance award based on those findings.

2.         Duration of Maintenance

Respondent argues that we should also remand on the duration of spousal maintenance.  The district court concluded:

            It is uncertain what kind of income [appellant] will earn if/when she does return to the work force.  Even if she does find full time employment, it is uncertain if she will earn enough to allow her to be self-supporting, given the standard of living the parties enjoyed during the marriage.  Under these circumstances, Minn. Stat. § 518.552, Subd. 3 mandates that [appellant] be awarded permanent spousal maintenance.  If in the future [appellant] does find employment that allows her to be self-supporting, given the standard of living the parties enjoyed during their marriage, [respondent] can seek to have his spousal maintenance obligation reduced and/or eliminated.


See Minn. Stat. § 518.552, subd. 3 (2002) (when need for permanent maintenance is uncertain, court shall order permanent maintenance leaving order open for later modification).  The district court’s finding that appellant’s ongoing income is uncertain was not clearly erroneous, and the district court did not abuse its discretion in awarding permanent maintenance.  Accordingly, we affirm the award of permanent spousal maintenance.

            Affirmed in part, reversed in part, and remanded.