This opinion will be unpublished and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

A03-407

 

 

In re Mary Joy Giblin Lenont, petitioner,

Appellant,

 

vs.

 

Brian John Maki,

Respondent.

 

 

Filed February 17, 2004

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. DW257184

 

James L. Berg, 1059 Stoughton Avenue, Post Office Box 85, Chaska, MN 55318 (for appellant)

 

Judith L. Oakes, Judith M. Rush, J. Oakes & Associates, 2589C Hamline Avenue North, Roseville, MN 55113 (for respondent)

 

Considered and decided by Schumacher, Presiding Judge; Willis, Judge; andWright, Judge.

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

On appeal in this dissolution matter, appellant-wife Mary Joy Giblin Lenont challenges the district court's refusal to award spousal maintenance. We affirm.

FACTS

Lenont and respondent-husband Brian John Maki married in 1986 and dissolved their marriage in November 2002. There are no minor or dependent children from the marriage.

In 1987, wife was diagnosed with multiple sclerosis. She also suffers from dysthymia. Wife was employed outside the home from 1986 until 1993. She applied for social security disability benefits on December 3, 1993, and the social security administration determined she was totally disabled. Wife testified that she has not been employed since 1993, although she also testified that she produced the income listed in the parties' 1998 income tax return attributable to Write North, a free lance writing business for which husband is the named proprietor. Furthermore, wife testified that she hopes to return to self employment as a free lance writer but was not working at the time of trial because she was busy working on her records for the dissolution proceeding and because her "fatigue is really bad."

Wife testified that over the course of the marriage her parents gifted to her approximately $150,000. In part, this sum included annual gifts from her father of $2,000. Her father also gifted stock certificates, which she is currently holding. Her mother provided significant cash gifts including two $10,000 gifts in 1998. Wife did not receive any gifts from her mother after March 2000, at which time she told her mother to stop making gifts because the gifts could reduce spousal maintenance in the dissolution proceedings.

The district court found wife receives monthly income of $1,030 from social security and $612 from dividend and interest income. The court also determined wife should be credited for receiving $42 per month in other nontaxable interest, $1,175 per month in gifts, and $400 per month in self-employment income. Wife's monthly expenses total $2,459. Thus, her resources exceed expenses by $800.

The district court found that husband had been employed by LTV Mining until approximately April 2001. LTV Mining has since filed bankruptcy. The federal Pension Benefit Guarantee Corporation took over husband's pension from LTV but at the time of trial was unable to provide any information regarding the value of his benefits. Since April 2001, husband has been employed as an operations supervisor with UNIMIN Corporation. The district court found husband's net monthly income was $2,700, which does not reflect an allowed 15% contribution from earnings to a 401(k) plan. Husband's monthly expenses total $2,920. Thus, he has a monthly deficit of at least $220.

The district court concluded wife had sufficient resources from which to provide adequate self support and that husband was "unable to meet his own needs while contributing to the needs of [wife]" and denied wife's request for permanent spousal maintenance. Both parties moved for amended findings and conclusions of law but did not move for a new trial. The district court amended some findings and conclusions of law but did not alter the denial of permanent spousal maintenance. Wife did not request a reservation of spousal maintenance at trial nor did she include this request with her posttrial motions.

D E C I S I O N

The parties agree the only issue before this court is whether the district court erred in denying spousal maintenance to wife. Absent an abuse of its "wide discretion" in awarding maintenance, the district court's determination is final. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous." Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992); see Minn. R. Civ. P. 52.01.

District courts may grant maintenance to a spouse if the court finds the spouse seeking maintenance

(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

 

(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

 

Minn. Stat.  518.552, subd. 1 (2002). While Minn. Stat.  518.522, subd. 2 (2002), lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40.

The district court considered five sources when determining wife's monthly income: social security, dividend and interest income, other nontaxable interest, gifts, and self-employment income. On appeal, wife argues the district court erred by considering past monetary gifts made to wife by her parents. Wife contends the gifts should not be considered where the continuation of such gifts is speculative and dependent on family members' ability and desire to contribute to her needs.

The district court was required to consider wife's total financial resources and her ability to meet her needs independently. Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn. App. 1988). Wife testified to receiving approximately $150,000 in gifts from her parents throughout her marriage. Her testimony shows at least some of those gifts occurred annually. She does not dispute the court's finding that she received an average of $1,175 per month in gifts between 1995 and 2000. Gifts ended when wife told her mother to stop because such gifts could result in the loss of spousal maintenance.

This court has previously held the district court may consider regular, systematic gifts received from a dependable source to determine a spouse's child support obligation. See Barnier v. Wells, 476 N.W.2d 795, 797 (Minn. App. 1991). Earning capacity measurement rules from child support cases may be extended to spousal maintenance cases. Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989).

Because the facts here support the conclusions that wife received regular gifts from a dependable source and it was at her request those gifts were terminated, we find the district court did not err in considering the gifts when determining wife's ability to meet her financial need in the context of her request for maintenance. We note this decision is consistent with case law regarding annual bonuses from a dependable source. See Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987), review denied (Minn. Oct. 30, 1987) (stating bonuses that provide dependable source of income may properly be included in calculation of future income).

Wife also argues the district court erred by improperly imputing self-employment income to her. Wife contends "permanent maintenance is mandatory where there is substantial uncertainty concerning wife's likelihood of success in the business world." Wife further argues the court made impermissible contradictory findings regarding her ability to work and erred in imputing income to her without first making a finding that she was underemployed in bad faith.

Without the imputed self-employment income of $400 per month, wife maintains four sources of income: social security, income interest from trust, other nontaxable interest income, and gifts from family. The sum of these sources exceeds her monthly expenses by $400. It is not an abuse of discretion to deny a request for maintenance where the requesting spouse fails to show that her expenses exceed her spendable income. Sefkow v. Sefkow, 427 N.W.2d 203 (Minn. 1998). Thus, to the extent the district court may have erred with regard to imputing to wife $400 per month in self-employment income, the error is harmless. See Minn. R. Civ. P. 61 (requiring harmless error to be ignored); Bloom v. Hydrotherm, Inc., 499 N.W.2d 842, 845 (Minn. App. 1993) (appellant bears burden of demonstrating that error is prejudicial), review denied (Minn. June 28, 1993).

Furthermore, we note that Gessner, as cited by wife, does not stand for the proposition that permanent maintenance is mandatory where there is substantial uncertainty concerning wife's likelihood of success in the business world. Gessner states that in such a circumstance, and where the requesting spouse needs additional income and the paying spouse is able to provide additional maintenance, an award of permanent maintenance is justified. 487 N.W.2d at 924. Here, neither party disputes that husband has a net deficit and cannot contribute to wife's expenses. We also recognize the district court's findings are not inconsistent to the extent that the reference to wife's inability to sustain "competitive employment" is different from the reference to wife's ability to produce some income as a self employed, free lance writer.

Wife cites Fastner v. Fastner, 427 N.W.2d 691 (Minn. App. 1998), for the proposition that the district court erred by not at a minimum reserving the issue of maintenance. But wife did not raise the issue of reserving maintenance at trial or during posttrial motions. Generally, this court will not consider matters not argued in the court below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). As wife contends, the husband in Fastner had multiple sclerosis, and this court directed the district court on remand that his health problems compelled "at least the reservation of maintenance." 427 N.W.2d at 693, 700. But the husband in Fastner had raised the issue of reserving maintenance below, and the district court had denied his request. 427 N.W.2d at 696. Because this issue was not raised below, we decline to reach the issue on its merits.

Affirmed.