This opinion will be unpublished and

may not be cited except as provided by

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






In re:

Robert Psyck, petitioner,




Marian J. Psyck,




Filed March 25, 2003


Randall, Judge


Morrison County District Court

File No. F8-96-769



Greg A. Engel, Thomas E. Kramer, Engel Law Office, 925 South First Street, P.O. Box 638, St. Cloud, MN 56302-0638 (for appellant);


Thomas W. Lies, Joann Evenson, Pennington & Lies, P.A., 1111 North First Street, P.O. Box 1756, St. Cloud, MN 56302-1756 (for respondent).


            Considered and decided by, Shumaker, Presiding Judge, Randall, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from an award of permanent spousal maintenance, appellant contends that (1) the district court erroneously denied his request for an evidentiary hearing, and (2) the district court should have granted his motion to amend the findings because the evidence does not support an award of permanent maintenance.  We conclude that the district court acted within its discretion.  We affirm. 


            During the parties' 1997 marriage dissolution, the district court found that respondent could become self-supporting given sufficient time and resources for retraining or further education, but that she required maintenance.  On this basis, the district court ordered $700 per month in temporary maintenance for 60 months. 

            The present proceeding began when respondent filed a motion to increase the amount of maintenance and change its status from temporary to permanent based on her assertion of changed circumstances.  Respondent supported her motion with her affidavit.  Her motion sought these modifications because of her serious medical conditions, including osteoarthritis in her ankles and hands as well as Ehlers-Danlos Syndrome.  The district court found that she was "unable to work at the current time."  The court based this finding on her medical conditions and the fact that there was "no evidence before the Court to indicate her ability or likelihood to obtain additional training or education that would make her employable."  Because of this, the district court found that respondent showed an increased need for spousal maintenance, which rendered the original maintenance award unreasonable and unfair.  The court noted that there was "simply no evidence before the Court" regarding what training or education respondent could participate in or what job she could attain.  The court then refused to impute income to respondent absent

a finding of bad faith or * * * evidence to support findings that she could have rehabilitated herself had she made reasonable efforts and evidence as to what her earning potential would have been under those circumstances.


The district court then applied the factors listed in Minn. Stat. § 518.552 (2002), finding that there was "simply no evidence before the Court to determine that [respondent] has opportunities or ability to * * * become self-supporting."  In addition, there was "no evidence * * * to indicate a durational extension of the maintenance period for any given amount of time would serve any particular purpose."  Thus, because the likelihood that respondent would become self-supporting was "minimal," the district court concluded Minn. Stat. § 518.552, subd. 3, required an award of permanent maintenance.



            "It is within the court's discretion to restrict presentation of evidence to nonoral testimony."  Christenson v. Christenson, 490 N.W.2d 447, 451 (Minn. App. 1992) (citing Sieber v. Sieber, 258 N.W.2d 754, 756 (Minn. 1977)), review granted (Minn. Jan. 15, 1993), and appeal dismissed (Minn. Feb. 16, 1993)).  The statute states that "[t]he court need not hold an evidentiary hearing on a motion for modification of maintenance or support."  Minn. Stat. § 518.64, subd. 2(f) (2002).  In addition, Minn. R. Gen. P. 303.03(d) provides in relevant part:

Motions, except for contempt proceedings, shall be submitted on affidavits, exhibits, documents subpoenaed to the hearing, memoranda, and arguments of counsel unless otherwise ordered by the court for good cause shown.


            The parties may request oral testimony under rule 303.03, however neither party timely did so in this case.  Appellant requested oral testimony only after the district court issued its order granted respondent's petition.  The district court made note of this fact in its denial of appellant's motion for amended findings.  Additionally, appellant did not make an offer of proof with his motion for an evidentiary hearing.  Had his request been timely, an offer of proof would have aided the district court when deciding whether an evidentiary hearing was necessary.  It is clear that the district court did not abuse its discretion by denying appellant's untimely request for an evidentiary hearing. 


            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 burden rests with the party seeking modification to (1) demonstrate that a substantial change in circumstances has occurred; and (2) show that the substantial change renders the original award unreasonable and unfair. Williams v. Williams, 635 N.W.2d 99, 104 (Minn. App. 2001). 

            Here, the district court found that respondent had met this burden due to her significant health problems, which were not known at the time of the dissolution.  The district court addressed the factors set forth in Minn. Stat. § 518.552 (2002).  Most
significantly, the district court found that respondent's health prevented her from obtaining employment, and this rendered the original maintenance terms unreasonable and unfair.  The record supports this finding.  The district court found respondent was receiving social security disability payments due to her medical condition.  These benefits are predicated on the recipient’s inability to work.  Additionally, respondent presented her own affidavit describing her medical conditions and letters from her doctors describing her conditions and their deteriorative effects.  Appellant had the opportunity to introduce documentary evidence of experts to support his assertion that respondent is capable of working, but instead he chose to rely solely on his belief that she could work.  Based on the evidence before the district court, we cannot say that its finding that respondent is unable to support herself is clearly erroneous.  Therefore, the district court’s award of permanent maintenance was proper; appellant failed to show an abuse of discretion.