This opinion will be unpublished and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:

Constance Jean Shubert, petitioner,





James Joseph Shubert,




Filed August 19, 2003

Affirmed in part, reversed in part, and remanded

Halbrooks, Judge



Hubbard County District Court

File No. F495340


Mary G. Sorum, Thorwaldsen, Malmstrom, Sorum, Wilson, LaFlair & Majors, P.L.L.P., 1105 Highway 10 East, P.O. Box 1599, Detroit Lakes, MN 56502 (for respondent)


John E. Valen, Fifth & Michigan, P.O. Box 1105, Walker, MN 56484 (for appellant)




            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            In this family law matter, appellant challenges the district court’s (1) denial of his motion to modify the maintenance award, (2) award of attorney fees to respondent, and (3) grant of a cost-of-living adjustment.  Because we conclude that the record is insufficient to determine if modification is appropriate, we remand that issue to the district court.  Because the district court abused its discretion in awarding attorney fees without a determination as to the basis for the award and supporting findings, we reverse the award of fees.  We affirm the district court’s grant of a cost-of-living adjustment to respondent. 


            Appellant James Joseph Shubert and respondent Constance Jean Shubert divorced after 40 years of marriage.  During the parties’ marriage, appellant completed dental school and maintained a dental practice.  Respondent, while primarily a homemaker, did occasional work as a bookkeeper in appellant’s dental office and as a church organist.  The parties have three children, who are now adults.

            In 1996, the parties agreed on a stipulation that provided the basis for the dissolution decree.  Pursuant to the decree, various property was distributed between the parties and appellant was ordered to pay respondent $1,950 per month, “[a]s permanent maintenance[.]”

            On March 21, 2001, respondent’s father died.  His will bequeathed $150,000 to respondent in addition to real estate and personal property with an estimated value of $291,006.41 (a total inheritance of $441,006.41).  Respondent was appointed as personal representative of her father’s estate.  In May 2001, respondent turned 65 and began receiving monthly social security benefits in the amount of $603. 

            Based on respondent’s inheritance, appellant moved to modify the permanent maintenance award, arguing that respondent has a substantially decreased need for maintenance and that the change renders the existing maintenance award unreasonable and unfair under Minn. Stat. § 518.64, subd. 2(a)(2), (4) (2002).  Respondent moved for a cost-of-living adjustment (COLA) and for attorney fees.

            Following a hearing, the district court found that, because respondent has not yet received her inheritance, there has not been a substantial change in the resources or needs of either party that would justify a modification.  In addition, the district court noted that appellant was cognizant of respondent’s potential inheritance at the time of the stipulation and dissolution when he agreed to pay permanent maintenance to respondent.  Based on these findings, the district court concluded that appellant had not satisfied the requirements necessary for a modification of maintenance under Minn. Stat. § 518.64, subd. 2(a)(2), (4).  As a result, the court denied appellant’s motion to modify maintenance and granted respondent’s motions for a COLA and attorney fees.  This appeal follows.



The party moving to modify a maintenance award bears the burden of showing a substantial change of circumstances since the time of dissolution.  Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996); accord Minn. Stat. § 518.64, subd. 2 (2002).  The moving party must then demonstrate that these changed circumstances render the original award unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  A finding that one of the conditions for modification has not been met renders a finding on the other condition unnecessary.  Bormann v. Bormann, 644 N.W.2d 478, 481 (Minn. App. 2002).

We will not reverse a district court’s determination of a spousal maintenance award absent an abuse of discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  For this court to conclude that 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).

In this case, the district court focused on the parties’ stipulation to the provisions in the dissolution decree and noted that the court defers to that “voluntary acquiescence” of the parties.  The court also noted that a permanent maintenance award is “basically a compensatory award for the time and services rendered during the marriage.”  Nevertheless, the court ultimately stated that “[a]t the present time,” it did not find a substantial change in the resources or needs of either party that made the original award unreasonable or unfair.

The basis for appellant’s modification motion is what he perceives to be respondent’s changed circumstances following her inheritance.  Respondent’s response in opposition to the motion was that, despite the fact that her father died approximately two and one-half years ago, the estate has not yet been distributed due to some undefined tax issues.

Appellant argues that, whether or not distribution has occurred, respondent is in constructive possession of her inheritance because, as personal representative of her father’s estate, she has the authority to distribute the inheritance at any time.  “Upon death, a person’s real and personal property devolves to the persons to whom it is devised by last will[.]”  Minn. Stat. § 524.3-101 (2002) (devolution of estate at death). 

Except as otherwise provided by a decedent’s will, every personal representative has a right to, and shall take possession or control of, the decedent’s property, except that any real property or tangible personal property may be left with or surrendered to the person presumptively entitled thereto unless or until, in the judgment of the personal representative, possession of the property by the personal representative will be necessary for purposes of administration.


Minn. Stat. § 524.3-709 (2002) (duty of personal representative; possession of estate). 

Until termination of the appointment a personal representative has the same power over the title to property of the estate that an absolute owner would have, in trust however, for the benefit of the creditors and others interested in the estate.


Minn. Stat. § 524.3-711 (2002) (general powers of personal representative). 


The record here does not contain an explanation of why respondent’s inheritance has not yet been distributed.  Although respondent generally asserts that “taxes” are the reason, nothing else was provided to the court to justify the delay in the estate distribution for two and one-half years.  In addition, the district court noted in its memorandum that appellant knew at the time of the stipulation that respondent would receive an inheritance when her father died.  By its statement, the court seems to suggest that appellant is precluded from basing a motion to modify maintenance on this event because it was anticipated.  Appellant’s response is that the amount of respondent’s inheritance could not have been predicted, given how many variables existed, such as length of respondent’s father’s life, economic circumstances in the interim, and so forth.  This issue needs to be more fully developed on the record as well. 

We, therefore, reverse and remand this issue to the district court for findings as to what the parties expected regarding respondent’s inheritance when they agreed on the stipulation, why the estate has not been settled, and whether or not the delay is justified.  Whether to hold an additional hearing shall be discretionary with the district court.  In light of its findings, the district court shall address whether respondent’s inheritance constitutes a substantial change in circumstances rendering the decree unreasonable and unfair and what, if any, modification of maintenance is appropriate.


Appellant argues that the district court abused its discretion by granting respondent’s motion for attorney fees.  An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  Under Minn. Stat. § 518.14, subd. 1, the district court shall award attorney fees if it finds

(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.


Additionally, the court may assess fees “against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1.  Here, there was no finding that appellant unreasonably delayed or lengthened the proceedings nor was there a determination by the court that respondent does not have the means to pay attorney fees while appellant has the means to pay them.  Therefore, we reverse the district court’s award of attorney fees.


Appellant argues that the district court erred by granting respondent’s motion for a cost-of-living adjustment (COLA).  On appeal, an award of a COLA is reviewed under an abuse-of-discretion standard.  McClenahan v. Warner, 461 N.W.2d 509, 511 (Minn. App. 1990).  However, the district court’s discretion is limited to granting or denying a COLA.  Id

An order establishing, modifying, or enforcing maintenance or child support shall provide for a biennial adjustment in the amount to be paid based on a change in the cost of living.  An order that provides for a cost-of-living adjustment shall specify the cost-of-living index to be applied and the date on which the cost-of-living adjustment shall become effective.


Minn. Stat. § 518.641, subd. 1(a) (2002).  Although the district court did not specify in its order which cost-of-living index it applied, the consumer price index for all urban consumers in the Minneapolis-St. Paul area was submitted to the court.  The court applied the COLA amounts in this index and noted the date on which the COLA becomes effective.  Because the COLA is justified by statute and supported by the record, we affirm the district court’s award to respondent.

            Affirmed in part, reversed in part, and remanded.