This opinion will be unpublished and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

A03-716

 

 

In re Jerry Michael Perpich,

petitioner,

Respondent,

 

vs.

 

Linda Lou Perpich,

Appellant.

 

 

Filed December 30, 2003

Affirmed

Anderson, Judge

 

St. Louis County District Court

File No. FX-98-300690

 

 

Patrick G. Valentini, Cianni Law Office, P.O. Box 586, Chisholm, MN  55719 (for respondent)

 

Richard E. Prebich, Esq., 1932 Second Avenue East, Suite 2, Hibbing, MN  55746 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.


U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

            Following the district court’s denial of her motion to modify her spousal maintenance award, appellant challenges the district court’s application of Minn. Stat. § 518.64 (2002) as the standard for modification and the district court’s refusal to modify respondent’s maintenance obligations.  We affirm.

FACTS

            The parties’ marriage was dissolved in 1998.  During the 27-year marriage, respondent was employed full-time with a net monthly income of $3,200; appellant had two part-time jobs with a monthly gross income of $1,285.  The parties have adult children.  Appellant is approximately 52 years of age.

            The parties entered a stipulation that provided the basis for the marital dissolution judgment.  The stipulated judgment divided the marital property between the parties and ordered respondent to pay appellant “permanent spousal maintenance” of $600 per month that was “to continue at this level until May 1, 2003 [sic] or and [sic] thereafter payments shall cease but the Court shall retain jurisdiction over the issue.”  The decree also stated that spousal maintenance would cease if appellant remarried.  There was neither a Karon waiver nor any explicit restriction on cohabitation.

            After the dissolution, appellant studied to become a radiological technician but did not complete her schooling.  Appellant claimed she quit school because of stress.  Appellant’s attorney stated that her doctor advised her to quit school but offered no evidence to support this assertion.  The only pieces of evidence she introduced were two letters.  One letter, from a practicing technician, said:

Although I feel Linda was very presentable and very capable she often seemed nervous or anxious.  Many times she was on the verge of tears.  There were a couple of times she actually burst into tears.  I think Linda came to realize that the situation was just not working for her, that the radiology field was not the path she should take.

 

The other letter was from the director of the radiologic technology program that said:

Linda talked with me many times during fall semester about how stressful the course was for her.  She was struggling in the clinical setting and with the lab component.  It affected her to the point that she was in tears most class days.  She made a decision on March 1, 2002 [sic] to withdraw from the program.  She left the program in good standing.

 

The district court held this did not establish a medical reason why appellant did not complete the course because there was no medical expert testimony.

The school appellant attended stated that 100% of its graduates who graduated between July 2000 and June 2001, and were available for training-related jobs, were employed in training-related jobs.  Appellant has sought work in other fields in her geographic region but has been unable to obtain a job that will make her fully self-supporting.[1]  The district court found that, with good-faith efforts, appellant could be self-supporting.

On March 19, 2003, appellant moved the district court to modify the dissolution decree to permanently award appellant at least $800 per month.  The district court denied this motion because it found that appellant had not made a reasonable effort to be self-supporting as there were no “constraints upon her time and energy” that would prevent her from obtaining a full-time job.  This appeal followed.

D E C I S I O N

            Appellant first contends that the district court applied the wrong statute.  Appellant contends the district court should have reviewed the issue of permanent spousal maintenance de novo pursuant to Minn. Stat. § 518.552 (2002) and not applied the deferential modification factors as required by Minn. Stat. § 518.64 (2002).

            A reviewing court need not defer to the district court’s application of the law when the material facts are not in dispute.  Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).  Minn. Stat. § 518.552 is a de novo standard that applies when the district court initially determines if and how much maintenance should be awarded.  Minn. Stat. § 518.64 is a deferential standard used to determine whether to modify maintenance ordered under § 518.552 if there has a been a substantial change that makes the terms “unreasonable and unfair.”  If the standard for modification under Minn. Stat. § 518.64 has been satisfied, a new maintenance award is set under Minn. Stat. § 518.552.  Minn. Stat. § 518.552, subd. 2(c) (2002).

            Appellant’s argument is without merit.  Appellant’s motion to the district court stated that appellant requested an order “[m]odifying the terms and provisions of paragraph 2 of the Conclusions of Law of the Judgment and Decree filed June 30, 1998 as to the issue of spousal maintenance, in effect converting said spousal maintenance award to a permanent award in an appropriate amount of not less than $800.00.”  In the memorandum of law filed in support of the motion, appellant argued that she was entitled to a modification because of “‘substantially increased need’ under M.S.A. §518.64 [sic].”  Section 518.552 was never discussed.  Moreover, at the hearing, the district court asked appellant why she should not be forced to live with the deal that she made, the type of analysis made under Minn. Stat. § 518.64 rather than under § 518.552, without objection or argument from counsel that the de novo review of § 518.552 was the proper standard to apply.  Thus, appellant’s argument that § 518.552 should be applied is a new argument made for the first time on appeal and we decline to hear it.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Appellant’s second argument challenges the district court’s finding that appellant has not had a change in earning capacity that was anticipated at the time of the judgment.  Appellant appears to be arguing that the district court is wrong in this finding because:  1) appellant attempted to go to school, 2) there was no proof appellant could have been employed if she had completed her schooling, 3) appellant has a decreased earning capacity because of her age, and 4) appellant made good faith efforts to gain employment.  Appellant also argues that the district court erred in considering appellant’s cohabitation and the property settlement.

            We review a district court’s maintenance modification decision under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  A district court abuses its discretion by making findings of fact that are “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

            “A movant for maintenance modification must not only demonstrate the existence of a substantial change of circumstances, but [sic] is also required to show that the change has the effect of rendering the original maintenance award both unreasonable and unfair.”  Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).  Moreover, “when a stipulation fixing the respective rights and obligations of the parties is central to the award, the trial court reviewing the original order or decree should view it as an important element because it represents the parties’ voluntary acquiescence in an equitable settlement.”  Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981).  Thus, although a district court normally has broad discretion, district courts should exercise that discretion “carefully and only reluctantly alter the terms of a stipulation governing maintenance.”  Id.  But a stipulation “does not operate as a bar to later consideration of whether a change in circumstances warrants a modification.”  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

Here, the district court did not abuse its discretion in essentially concluding that, even if the circumstances had changed, because appellant had not successfully completed an educational program and secured better employment as a result, such a change did not render the existing maintenance obligation unreasonable or unfair.  See Id. at 709-10 (noting maintenance recipient’s intentional failure to economically rehabilitate to extent assumed by stipulated judgment was a substantial change in circumstances but that, on that record, the maintenance recipient was not entitled to additional maintenance to compensate her for the portion of her need created by her intentional failure to rehabilitate).

The district court found that appellant could have become self-supporting with reasonable efforts.  While appellant points to facts supporting a contrary conclusion--that she went to school, was not guaranteed employment if she graduated, applied for a number of jobs, and is age 52--there were facts supporting the district court’s finding:  1) appellant failed to provide evidence of a medical diagnosis of stress, 2) the only evidence she offered regarding stress were the statements by radiologists that she cried or almost cried, 3) appellant has few major constraints on her time (e.g. she has no minor children), and 4) 100% of graduates from her school that were able to enter the field were employed.

Like the referee in Hecker, the district court properly disregarded appellant’s claims that the stress was too much for her because those claims were essentially unsupported.  See 568 N.W.2d at 708.  While appellant offered hearsay testimony that her doctor advised her to quit, she produced no evidence, documentary or otherwise, of this medical advice.  We cannot say on this record that the district court abused its discretion in rejecting appellant’s argument.

 Appellant also claims the district court improperly considered appellant’s cohabiting status.  Appellant’s argument fails because, while the district court found appellant was cohabiting, it specifically disclaimed any reliance on this fact in its order.

Finally, appellant challenges the district court’s finding that appellant received more than half of the property in the dissolution decree.  As with the cohabitation argument, the district court did not rely on the property division in reaching the result at issue here.

Because the district court had support for its conclusion that appellant had not taken reasonable steps to become self-sufficient, did not rely on improper evidence, and applied the correct statute, the district court did not abuse its discretion.  This conclusion is bolstered by the deference district courts are to give stipulated agreements.  Claybaugh, 312 N.W.2d at 449.  Because this was a stipulated agreement, the district court properly deferred to the earlier judgment based on the stipulation, and appellant failed to make the strong showing necessary to modify it.

            Affirmed.



[1] Appellant states she applied for jobs with Blue Cross Blue Shield, the Guardian Ad Litem program, Mesaba Airlines (twice), Fort & Company, Walmart, Job Service, and Hibbing Youth Crisis Center and for a job as a pharmacy technician.