This opinion will be unpublished and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

A03-397

 

In re John M. Brookman, petitioner,

                                              Appellant,

 

vs.

 

Blyth J. Brookman,

Respondent.

 

 

Filed February 24, 2004

Affirmed

Randall, Judge

 

Hennepin County District Court

File No. DC-227029

 

Ronald B. Sieloff, Sieloff and Associates, P.A., Yankee Square Office III, 3460 Washington Drive, Suite 214, Eagan, MN 55122 (for appellant)

 

Denis E. Grande, Joanne H. Turner, Mackall, Crounse & Moore, PLC, 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN 55402 (for respondent)

 

††††††††††† Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Schumacher, Judge.

U N P U B L I S H E D†† O P I N I O N

RANDALL, Judge

††††††††††† Appellant John Brookman appeals multiple post-decree rulings in this dissolution matter.† Appellant challenges the district courtís refusal to reopen the marital-property division in the face of respondentís misrepresentation of her income and assets; the district courtís findings of his income; and the award of continuing spousal maintenance to respondent.† We affirm.

FACTS

 

Appellant John Brookman and respondent Blyth Brookman were married in 1974.† During the marriage, they had two children.† They separated in 1995 and in 1998, appellant petitioned to dissolve the marriage.†

††††††††††† † At the time of dissolution, the district court found appellantís gross annual income to be $171,000.† Respondentís average gross income was $60,000.† Shortly before and during the dissolution proceedings, respondent had also received some ďgiveawayĒ commissions from a coworker who had become ill.††† At trial, she said that she was under no obligation to return the money, but because it became an issue in the dissolution, she would take no more commissions and would return the money to her coworker.† In fact, she stated that she had already returned a portion of the commissions to her coworker.††

††††††††††† After a review of the partiesí finances, the district court ordered that appellant pay respondent $4,500 per month in spousal maintenance, to continue until his mandatory retirement from his job at age 60, at which point it would terminate entirely.† The decree also provided that if it happened that respondent had not returned the ďgiveawayĒ commissions to her coworker, then appellant could bring a motion to reopen the maintenance issue and maintenance could be retroactively adjusted downward.† The decree was filed July 23, 1999.†

††††††††††† On August 11, 1999, appellant moved for a new trial and amended findings, challenging a number of property valuations and arguing that the evidence at trial did not support any award of spousal maintenance.† The district court denied this motion from the bench on October 7, 1999.† This court affirmed in an unpublished opinion.† Brookman v. Brookman, No. C4-99-2086 (Minn. App. Aug. 1, 2000).†

††††††††††† On March 31, 2000, appellant moved for a hearing to reconsider the issue of spousal maintenance pursuant to the provisions of the decree.† This time, he specifically challenged whether respondent had in fact returned the giveaway commissions to her coworker.† Appellant filed an amended motion, asking that his maintenance obligation to respondent be retroactively terminated or reduced, based on a change of circumstances under Minn. Stat. ß 518.64.† Appellant also asked for a new trial based on respondentís fraud and misrepresentation as to the return of the giveaway commissions, and for attorney fees incurred in bringing the motion.† In response, respondent moved to compel appellant to pay $19,680 in maintenance arrearages.† A hearing on the matter was held February 25, 2002.†

††††††††††† The district court found that appellant owed respondent $19,000 for child support during the period before the dissolution trial.† The district court found that respondent had assets that should have been included in the marital estate, namely the giveaway commissions.† The district court amended the property settlement to award appellant $6,000 more, to reflect half of the giveaway commission amount of $18,000, after taxes.† Further, the court adjusted respondentís income upward, from $60,000 per year to $65,000 for the years 1998, 1999, and 2000, reducing appellantís maintenance obligation by $5,000 for each of those years.† Appellant was awarded $15,000 in maintenance overpayment for that period, for a total of $21,000, including the increased property award.† Offset by the $19,000 in arrears he owed respondent, appellant was to receive a check for $2,000.†† The court chided respondent for not revealing more about the giveaway commissions and investment fund.† But, based on the size of the estate, the court did not find this misrepresentation, which affected between two and five percent of the total marital estate, to be substantial enough to reopen the entire dissolution.†

††††††††††† After further written submissions, the court issued its order July 15, 2002.† The order found that respondentís income was $65,000 per year prospectively and that maintenance would be permanently reduced to $4,000 per month, retroactive to January 1, 2002.† Respondent was ordered to pay for $8,000 of appellantís attorney fees for pursuing and discovering the misrepresentations, but not for any fees incurred in the pursuit of eliminating or reducing maintenance.†

††††††††††† On July 25, 2002, appellant again moved for a reduction or termination of his maintenance obligation, this time citing a substantial change in his financial circumstances.† And on August 8, 2002, he moved for a new trial or amended findings, challenging most of the findings in the July 15 order.† A hearing was held September 9, 2002.† The district court set a reduced temporary maintenance obligation of $2,500 per month until the resolution of the issues.† Another hearing was held November 22, 2002.† Appellantís counsel argued that appellant had a dramatically decreased income due to the financial failings of his employer and that he could not afford to pay any spousal maintenance at all.†

††††††††††† The district court issued its order January 31, 2003.† The court found that there had been a significant change in circumstances since the July 15, 2002 order, and that the parties stipulated that appellantís income had decreased from $192,000 per year to $136,323.† Financial analysis showed that if appellant was to pay $2,000 per month in maintenance, he would fall $1,336 short of his monthly budget, and respondent would fall $1,618 short of hers.† The court found this to be a fair distribution of the shortfall and ordered that appellant now pay permanent spousal maintenance in the amount of $2,000 a month, retroactive to July 1, 2002.† The district court denied all other motions.† This appeal follows.

D E C I S I O N

I.††††††††† Fraud on the court

††††††††††† Appellant argues that the district court should have granted him a new trial or reopened the property settlement between the parties due to respondentís misrepresentations at trial regarding her income and assets.† Appellant argues that these misrepresentations amount to a material fraud on the court that requires a new trial.†

††††††††††† A district courtís refusal to reopen a dissolution judgment will not be reversed on appeal absent an abuse of discretion.† Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).† In the marital-dissolution context, fraud on the court consists of (1) an intentional course of material misrepresentation or nondisclosure; (2) having the result of misleading the court and opposing counsel; and (3) making the property settlement unfair.† Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).†

††††††††††† Respondent failed to disclose three sums: the giveaway commissions from her coworker, amounting to $18,705.03; and two forgivable loans from her employer, one for $15,552 and the other for $22,152.† At the hearing held February 25, 2002, the district court acknowledged that respondent had misled the court by stating that she had already returned some of the commission money to her coworker, which proved untrue.† But, given that the marital estate had been valued at more than one million dollars, the district court declined to reopen the entire settlement to redistribute an amount around $55,000.† The district court then sought to divide the money in an equitable fashion by calling the giveaway commissions marital property and awarding half to appellant and by adjusting respondentís income both retroactively and prospectively to take into account income she received from the forgivable loans.† Appellant was awarded $21,000 and had his maintenance obligation reduced from $4,500 per month to $4,000.†

††††††††††† Although appellant is dissatisfied with the district courtís resolution of this issue, we see no abuse of discretion.† Even if respondentís misstatements were a deliberate attempt to mislead the court and appellant, the amount at issue did not render the entire property settlement unfair to appellant.† And the district court did award appellant both additional property and a reduction in maintenance to ensure that respondent did not receive a windfall from her misstatements.† This is a fair and equitable result; there was no abuse of discretion in the district courtís refusal to reopen the entire property settlement.† The district court was forthright and fair.† Cf. Wibbeus v. Wibbeus, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimus error).

II.††††††† Amended findings

††††††††††† Appellant next argues that the district court abused its discretion in denying his motion to amend its July 15, 2002 findings.† A motion for amended findings allows the district court to review its own exercise of discretion.† Johnson v. Johnson, 563 N.W.2d 77, 78 (Minn. App. 1997), review denied (Minn. June 30, 1997).† Unless the district courtís findings of fact are clearly erroneous, this court must uphold them.† Minn. R. Civ. P. 52.01.

††††††††††† Having carefully reviewed each of the findings appellant claims is in error, we determine that all are supported by the record and are not clearly erroneous.† Because the courtís findings are not clearly erroneous, it is unnecessary for us to further address appellant's discussion of evidence.† See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating function of appellate court ďdoes not require us to discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial courtís findings,Ē and our ďduty is performed when we consider all the evidence, as we have done here, and determine that it reasonably supports the findingsĒ).††

††††††††††† We will, however, address the district courtís award of $19,000 in ďchild-support arrearsĒ to respondent in the July 15, 2002 order.† Appellant argues that this award effectively amended the dissolution judgment to make child support retroactive to February 1999, an abuse of the district courtís discretion.† We disagree.† In her pleadings, respondent requested an award of $19,680 in maintenance arrears for the period between February 1999 and July 1999.† The district court awarded $19,000 in back child support for the period between September 1998 and July 1999.† Because respondent showed that appellant was $19,000 behind in maintenance payments, the district court did not err in awarding that amount to her, even if the courtís stated reason for the award was incorrect.† See Schoeb v. Cowles, 279 Minn. 331, 336, 156 N.W.2d 895, 898 (1968) (stating that this court will not reverse a correct decision on appeal simply because it is based on incorrect reasons); cf. Minn. R. Civ. P. 61 (requiring harmless error to be ignored).†

III.†††††† Attorney fees

Appellant argues that the district court abused his discretion by awarding him only $8,000 in attorney fees, when he requested $31,650.31 for fees incurred in investigating respondentís undisclosed assets.† An award of attorney fees ďrests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.Ē† Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).†

The district court found that not all of appellantís requested attorney fees were incurred to investigate respondentís undisclosed assets.† The district court found that much of the fees were spent pursuing his motion to reduce or terminate maintenance and determined that respondent should not be responsible for those fees.† So, the district court awarded appellant $10,000 in attorney fees, minus $2,000 for money that respondent was forced to spend defending herself against an IRS audit that appellant caused her to suffer.† We do not see this to be a clear abuse of the district courtís discretion.† The district court gave appellant compensation for respondentís wrongdoing.† That it was not as much compensation as appellant desired does not make the award an abuse of discretion.

IV.†††††† Temporary maintenance orders

††††††††††† Appellant challenges the district courtís issuance of two interim maintenance orders in October 2002.† Minn. Stat. ß 518.131, subd. 1(b) (2002), allows the district court to issue a temporary maintenance order during post-dissolution proceedings.† Such temporary orders are not appealable.† See Rigwald v. Rigwald, 423 N.W.2d 701, 705 (Minn. App. 1988).† But even if we review the temporary orders, they do not constitute an abuse of the district courtís discretion.† Appellant was ordered to pay a reduced amount of maintenance ($2,500 per month) during the modification proceedings, and the district court explicitly stated that the orders would have no effect outside the specified months.† Further, in the January 31, 2003 order, the district court again favored appellant by reducing his maintenance obligation to $2,000 per month retroactive to July 1, 2002.† Any overpayments appellant made from that date were to be deducted from future maintenance payments, including the $500 overpayments he made under the temporary orders.† Because the record shows that appellant was given credit for the overpayment, the orders had no net effect on appellant.†

In sum, appellant started with a spousal maintenance obligation of $4,500 a month.† After a series of contested hearings, that obligation was reduced to $2,000 a month, or, put another way, a savings of $30,000 per year.† It is true appellant would like even more of a cut, from his point of view, down to zero; but, on this record, we cannot say the district court abused its discretion in its treatment of appellantís obligation for spousal maintenance.

V.††††††† Continuing maintenance obligation

††††††††††† Finally, appellant argues that the district court abused its discretion by reducing his maintenance obligation to $4,000 per month in the July 15 order and to $2,000 per month in the January 31 order, rather than eliminating maintenance entirely, retroactive to the original dissolution decree.† Generally, whether to modify maintenance is discretionary with the district court.† Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).†

††††††††††† Appellant seems to argue that the district court should have eliminated maintenance completely, retroactive to the original dissolution judgment, because respondent was never entitled to any maintenance award.† This court has already reviewed the original maintenance award and found no abuse of discretion.† Brookman v. Brookman, No. C4-99-2086 (Minn. App. Aug. 1, 2000).† We thus limit our review here to whether the district courtís July 15, 2002 and January 31, 2003 maintenance determinations (resulting in significant reductions) were correct.†

Appellant argues that at the February 25, 2002 hearing, the district court was ďreconsideringĒ the maintenance issue, because it had been left open by the dissolution judgment for new evidence regarding the giveaway commissions and respondentís tax information.† Appellant claims that the district court should have reopened the entire maintenance issue and given full consideration to the partiesí financial circumstances as of February 2002, instead of basing the reduction in maintenance only on respondentís previously undisclosed income from the two forgivable loans.†

But the motions appellant brought in support of reducing his child support at that time referred to the change in respondentís circumstances, not his own.† Arguments at the February 25 hearing did refer to appellantís income, and the July 15 order does reflect that the court considered both partiesí incomes and expenses in deciding the motion.† Ultimately, the order is clear that the basis for reducing maintenance is the change in respondentís income due to the undisclosed assets and that the court found appellant still able to pay the reduced maintenance obligation and meet his expenses.† The order cites directly to appellantís 2001 W-2, and the courtís findings are not clearly erroneous.†

Appellant also argues that the district court abused its discretion by failing to reduce his maintenance obligation to less than $2,000 in the January 31 order.† The parties stipulated that appellantís income had decreased to $136,323 per year.† Although respondent submitted documents to show that her income had also decreased, the district court declined to consider them and maintained that her income was $65,000 per year, as it had previously been.

The courtís written findings show that it considered the partiesí monthly budgets in reaching its conclusion that $2,000 per month was an appropriate amount of maintenance.† Further, the record of the September 9 and November 22, 2002 hearings reflects extensive debate over the exact amounts of the partiesí respective incomes and expenses.† Appellantís argument that the court did not consider the necessary factors is unconvincing.† The district court did consider respondentís expenses and everyoneís income.† The district court ultimately based the reduction in maintenance primarily on the decrease in appellantís income.† Appellant has not demonstrated that this was an abuse of the district courtís discretion.

Affirmed.