This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-03-158

 

In re the Marriage of: Dennis James Ashlin, petitioner,
Appellant,

vs.

Peggy Ann Moritko, f/k/a Peggy Ann Ashlin,
Respondent.

 

Filed August 12, 2003

Affirmed; motion denied

Minge, Judge

 

Hennepin County District Court

File No. DC183229

 

Richard S. Eskola, 3989 Central Avenue N.E., Suite 600, Columbia Heights, MN 55421 (for appellant)

 

Mary Sherman Hill, 888 W. County Road D, Suite 300, New Brighton, MN 55112 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge, Harten, Judge, and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

 

MINGE, Judge

 

Appellant challenges the district court order denying his motion to reduce spousal maintenance.  He argues that the district court abused its discretion in not finding a substantial change in the parties’ circumstances due to respondent’s vocational rehabilitation and subsequently greater earning potential.  Because the district court correctly determined that the original award was for permanent, not temporary, maintenance and because the changes in the parties’ circumstances since the original award do not render it unfair or unreasonable, we affirm.  We deny respondent’s motion for attorney fees because she has not established that she is entitled to them under Minn. Stat. § 518.14, subd. 1 (2002).

FACTS

 

Appellant Dennis Ashlin and respondent Peggy Moritko were married on   October 13, 1973.  The marriage was dissolved on October 22, 1993.  The district court awarded spousal maintenance in the amount of $450 per month, continuing until Moritko’s remarriage, death, or further order of the court. 

            In 1995, Ashlin brought a motion to modify spousal maintenance.  The district court found that the original award was for permanent, not temporary, maintenance and denied the motion based on lack of substantial change in circumstances.  This court affirmed.  Ashlin v. Ashlin, No. C1-95-2621, 1996 WL 330830 (Minn. App. June 18, 1996). 

            In 1999, Moritko was working at Safco, Inc. and earning a yearly gross income of $28,875.  In 2000, Moritko left Safco; her earnings for that year ($33,285) reflect 200 hours of unused vacation pay.  Moritko made reasonable efforts to find a position at the same wage level but was unable to do so.  She took a job at The Blake School, where she made $25,909 in 2001 and remains at or near that level.  Ashlin had gross earnings of $49,830 in 2001; his income appears to be stable. 

            On April 4, 2002, Ashlin moved for a modification of spousal maintenance, stating that Moritko had vocationally rehabilitated herself since the original decree, voluntarily left a position where she earned $33,285, and demonstrated an earning potential that represented a significant change in circumstances and rendered the original order unfair.  The motion was heard before a family court referee on May 20, 2002.  The referee found that Ashlin could pay spousal maintenance and still provide for his own needs and denied the motion for modification.  On December 9, 2002, the district court issued an order adopting the referee’s findings of fact and conclusions of law and denying Ashlin’s motion in all respects.  Ashlin appeals from that order.  

D E C I S I O N

 

            Ashlin contends that his earnings have plateaued while Moritko has “achieved sufficient vocational rehabilitation.”  He argues that this constitutes a substantial change in circumstances that renders the original judgment of spousal maintenance unfair and unreasonable. 

            Determination of spousal maintenance is within the district court’s broad discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  Absent an abuse of this discretion, this court will not disturb the district court’s decision on spousal maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  For this court to conclude that the district court abused its discretion, the district court’s findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). 

            To determine whether a modification of maintenance is warranted, the district court must look to whether there has been a significant change since the original order and whether that change renders the original order unfair or unreasonable.  Minn. Stat.    § 518.64, subd. 2 (2002); Nardini v. Nardini, 414 N.W.2d 184, 198-99 (Minn. 1987).  The moving party bears the burden of showing that a substantial change has occurred. Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). 

            Substantial change is indicated by a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased needs of a party; (3) receipt of public assistance; (4) a change in the cost of living for either party which makes the terms unreasonable and unfair.  Minn. Stat.          § 518.64, subd. 2(a).  To determine whether the award is unfair and unreasonable, the court balances obligor’s and obligee’s needs by applying “the factors for an award of maintenance under section 518.552.”  Minn. Stat. § 518.64, subd. 2(c).

            Ashlin argues that because Moritko is vocationally rehabilitated, he no longer needs to pay spousal maintenance.  The district court found that the original decree awarded permanent maintenance and that, therefore, spousal maintenance was not predicated on whether Moritko could rehabilitate herself.

A spousal maintenance obligation is considered a permanent obligation when it has no termination date and, absent a significant change in circumstances, continues until the recipient’s death, remarriage, or further court order.  Gales v. Gales, 553 N.W.2d 416, 422 (Minn. 1996) (leaving award of maintenance open in duration effectively makes award permanent in nature).  By contrast, rehabilitative maintenance anticipates self-sufficiency of the recipient spouse after a period of retraining, at which time the maintenance award ends or is modified.  Schroeder v. Schroeder, 405 N.W.2d 267, 269 (Minn. App. 1987).  But modification or termination are not part of the plan when permanent maintenance is awarded.  Id. 

Here, the original dissolution decree states that Ashlin is to pay Moritko $450 a month until her remarriage, death, or further order of the court.  Not only does the record from the original dissolution proceeding support the district court’s finding that the spousal maintenance award at issue here is a permanent award, but also in the 1995 petition for modification, the district court determined that the maintenance award here is permanent.  Since the original decree provided for permanent maintenance, the fact that Moritko has vocationally rehabilitated herself does not, in and of itself, constitute a basis for modification of the award. 

            Ashlin argues that, based on Moritko’s monthly salary prior to leaving her position at Safco, there has been a significant change in circumstances.  He argues that Moritko voluntarily left Safco for a lesser-paying position at The Blake School; and that due to this voluntary underemployment, Moritko’s income should be imputed at her top earning capacity. 

            Courts impute income for maintenance purposes when an individual unjustifiably self-limits his or her income in bad faith, or is voluntarily unemployed or underemployed.  See Walker v. Walker, 553 N.W.2d 90, 95 n.1 (Minn. App. 1996); see also Carrick v. Carrick, 560 N.W.2d 407, 410-11 (Minn. App. 1997) (addressing imputation of income to maintenance recipient).  Compare Minn. Stat. § 518.551, subd. 5b(d) (2002) (requiring imputed amount to be based on prior earnings history, education, job skills, and availability of jobs within the community but not requiring bad faith underemployment for imputed income for child support).

            The district court did not find bad-faith underemployment.  Moritko stated that she was demoted from supervisor to an entry-level position at Safco due to health problems.  It appears that Safco was required to maintain Moritko at the same wage.  Moritko stated in her affidavit, however, that the working environment was more stressful at the entry-level position because her boss kept telling her that she was overpaid and “strongly encouraged” her to look for another job.  The record shows that Moritko made sufficient and reasonable efforts to find employment at the same wage level, but was unable to do so because she does not have a college degree.  Thus, the record supports the district court’s finding that Moritko was not underemployed in bad faith and the district court was not required to impute her income at her highest earning capacity.  The district court correctly compared Moritko’s income at the time of the dissolution decree to her income at her current position at The Blake School. 

            At the time of the dissolution, Ashlin was employed as a printer for Ambassador Press, earning $2,371 net per month.  Moritko was a one-half owner of a flower business.  The district court found that Moritko was not earning money at the flower shop, but imputed income of  $1,045 per month to her based on a projection of her future earnings. 

            The referee found that Ashlin’s current net monthly income is $2,343.[1]  The referee found that Moritko’s current net monthly income is $1,610, and $2,060 after receiving spousal maintenance.  The district court adopted these findings and there is evidence in the record to support them.

Both parties have experienced a substantial change in income since 1995.  However, when a recipient’s increased income is anticipated or necessary to allow the recipient to make ends meet, it alone does not justify a reduction in maintenance.  Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987); James v. James, 397 N.W.2d 587, 590 (Minn. App. 1986).  Thus, while there is a change here, it does not require a modification of spousal maintenance.  The district court did not abuse its discretion in finding that there was not a substantial change here.

            The referee also balanced the parties’ abilities to meet their financial needs under the factors listed in section 518.64, subdivision 2(c).  SeeBourassa v. Bourassa, 481 N.W.2d 113, 115 (Minn. App. 1992) (stating that although there are seven statutory factors, the issue is basically balancing the financial needs of obligee against the financial condition of obligor).  The district court found that while Moritko would have difficulty meeting her needs without receiving spousal maintenance, Ashlin is able to pay spousal maintenance while meeting his own needs.  The record supports this conclusion. 

            Because the original maintenance order was permanent, not temporary, and because no significant changes have occurred that render the original order unfair and unreasonable, we conclude the district court did not abuse its discretion in denying Ashlin’s motion to modify the maintenance order. 

            Moritko moves for attorney fees incurred in defense of this appeal.  The motion cites Minn. Stat. § 549.21, which was repealed in 1997.  Moritko did not comply with the statutory successor to that statute.  See Minn. Stat. § 549.211, subd. 4(a) (2002) (stating motion must be served at least 21 days in advance of filing with the court, to provide an opportunity to withdraw or correct the challenged pleadings or claim).  In addition, the motion is not supported by documentation concerning the number of hours claimed or the hourly rate charged.  See Minn. R. Civ. App. P. 139.06, subd. 1.  Thus, we also conclude that Moritko has not established that she is entitled to an award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), and we deny the motion.

            Affirmed; motion denied.



[1]  In his reply brief, Ashlin states that his net income is $2,343 before making the maintenance payment and $1,900 after making the payment.  His W-2, however, shows that his employer is deducting an amount of $5,628 yearly or $469 monthly from his paycheck.  This amount is labeled as child support, but the record not only provides no basis for Ashlin paying child support at this time, it also suggests that neither party currently pays support because both children are over the age of 18.  In addition, Ashlin’s previous tax forms have included an amount similar to this on line 31a of his tax form indicating alimony paid ($5,400 in 1998, $5,552 in 1999, $5,628 in 2000).  Thus, it appears that Ashlin’s net income is approximately $2,343 after making the maintenance payment.