This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Steven Allen Erlemeier, petitioner,
Susan Eileen Erlemeier,
Filed January 6, 2004
St. Louis County District Court
File No. F8-97-600184
Sally L. Tarnowski, 520 U.S. Bank Place, 130 West Superior Street, Duluth, MN† 55802; and Jessica L. Durbin, Johnson, Killen & Seiler, P.A., 800 Wells Fargo Center, 230 West Superior Street, Duluth, MN† 55802 (for appellant)
Larry M. Nord, Orman Nord & Spott Law Office, 1301 Miller Trunk Highway, Suite 400, Duluth, MN† 55811 (for respondent)
††††††††††† 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
††††††††††† Appellant father contends that the district court abused its discretion (1) by increasing respondent motherís spousal maintenance rather than reducing or terminating the award to her; (2) by awarding mother the right to initiate contact with the partiesí children; (3) by not establishing a child-support obligation for mother; and (4) by awarding mother need-based attorney fees.† Because we conclude that mother failed to show that the previously established maintenance obligation is unfair or unreasonable, we reverse the district courtís award of increased maintenance.† And because we conclude that the district court did not abuse its discretion on the other issues, we affirm in part.†
In October 1998, appellant Steven Erlemeier and respondent Susan Erlemeier, f/k/a Susan Baum, dissolved their 11-year marriage.† The district court awarded father physical custody of the partiesí three children, subject to motherís right of reasonable visitation.† The district court also ordered father to pay permanent spousal maintenance to mother, reasoning that uncertainty regarding motherís bipolar disorder required a permanent award subject to modification.† At the time of dissolution, father, who is a physician, had a gross monthly income of approximately $15,850 and living expenses of approximately $4,997.† And mother, who had been a dentist, was unemployed and attending nursing school.† Because mother had nearly two years of nursing school left to complete, the district court ordered father to pay mother $4,353 per month in spousal maintenance for 20 months and then $1,500 per month.†
Motherís bipolar disorder worsened, however, and she was unable to continue with nursing school.† In April 2000, in response to a motion by father, the district court reduced motherís maintenance to $2,825 per month.† The district court also modified motherís visitation, giving her unsupervised parenting time in a public place ďtwo times a week for two hours per visitĒ and telephone visitation twice a week.† In May 2001, the district court again modified its order, giving mother unsupervised parenting time every other weekend.
In August 2002, mother moved to Louisiana for personal reasons, and, as a result, lost her health-insurance coverage and prescription-drug benefits.† She currently works part-time as a salesperson in a pharmacy, where she earns $6 per hour and has gross monthly earnings of $624.† Mother stated in an affidavit that she planned to attend nursing school in Louisiana beginning in the autumn of 2003.
In January 2003, father moved the court to terminate motherís spousal maintenance, to modify motherís parenting time, and to require mother to pay child support.† Mother brought a counter-motion, asking the court to increase her spousal maintenance to $3,500 per month and to award her $2,500 in attorney fees.† In addition, mother requested that she be allowed to call the children by telephone and that they be allowed to visit her in Louisiana if they wished to do so.† In March 2003, the district court issued an order denying fatherís motion.† The court increased motherís spousal maintenance to $3,000 per month and awarded her the parenting time arrangements that she had asked for and attorney fees.† This appeal follows.
A party seeking to modify maintenance must show both a substantial change in circumstances and that the change renders the existing maintenance award unreasonable and unfair.† Minn. Stat. ß 518.64, subd. 2(a) (2002); Hecker v. Hecker,568 N.W.2d 705, 709 (Minn. 1997).† An appellate court reviews the district courtís decision on a modification motion for an abuse of discretion.† Dobrin v. Dobrin,569 N.W.2d 199, 202 (Minn. 1997). †An abuse of discretion occurs when the district court resolves the matter in a manner that is ďagainst logic and the facts on [the] record.Ē† Rutten v. Rutten,347 N.W.2d 47, 50 (Minn. 1984).
Here, the district court increased motherís monthly maintenance from $2,825 to $3,000, reasoning that the deterioration in motherís circumstances justified the modification and stating that fatherís spousal-maintenance obligation may be reviewed upon completion of motherís schooling.†
Father argues that the district court clearly erred in finding that mother had demonstrated a significant change in circumstances rendering the prior maintenance order unreasonable or unfair.† The record shows that motherís monthly budget had increased from $3,318 to $3,935, including approximately $750 in additional medical expenses, since her spousal maintenance was last modified in April 2000.† The record shows that the increase in motherís expenses is attributable to a loss of her medical benefits resulting from her voluntary move to Louisiana.† Mother states in an affidavit that, although she knew that she would lose her health-insurance coverage and prescription-drug benefits by moving, she did so to ďmove forward with [her] life.Ē†
Because mother voluntarily moved to Louisiana knowing of the financial consequences,† we determine that mother has failed to meet her burden of proving that the existing order is unreasonable and unfair to her.† Thus, we conclude that the district court abused its discretion by increasing motherís spousal maintenance, and we reverse the increase in spousal maintenance and direct that motherís spousal maintenance be reestablished at $2,825 monthly.
Father also argues that he demonstrated a significant change in motherís circumstances that would justify a reduction in or termination of her spousal maintenance.† Father asserts that, in contrast to motherís condition when her spousal maintenance was last modified, her doctor has indicated that she is currently capable of working as a dental hygienist.† But despite that ability, father argues that mother refuses to become self-supporting and instead chooses to work parttime at a low-paying job.†
Father further contends that mother has a duty to rehabilitate and become self-supporting, citing Youker v. Youker,661 N.W.2d 266 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).† But fatherís reliance on Youker is misplaced.† Youker specifically applies to rehabilitative maintenance, and, here, mother receives permanent maintenance.† Generally, obligees of permanent maintenance do not have a duty to become self-supporting.† Cisek v. Cisek,409 N.W.2d 233, 237 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).† While the district courtís original order is not a typical permanent-maintenance award, neither is the award simply rehabilitative maintenance.† The court awarded mother maintenance of $1,500 per month and an increased amount during the period that she was in nursing school.† Thus, we conclude that mother was awarded permanent maintenance of $1,500 per month and that only the amount of the award exceeding $1,500 is rehabilitative maintenance.†
Here, the record shows that motherís monthly expenses of $3,935 exceed her gross monthly earnings of $624 and that she is not able currently to support herself.† We conclude that the district court did not abuse its discretion in declining to reduce or terminate motherís spousal maintenance.
In addition, I have fought Dr. Erlemeierís repeated Motions, demands, and requests without significant help for my attorneysí fees.† I have cashed in all of the available retirement savings in order to meet my expenses and to continue to live.† I would respectfully request an award of attorneysí fees in the amount of $2,500.00.