This opinion will be unpublished and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

A03-740

 

In re the Marriage of:

Doris J. Doom, petitioner,

Respondent,

 

vs.

 

Roger E. Doom,

Appellant.

 

 

Filed March 30, 2004

Affirmed

Randall, Judge

 

Dakota County District Court

File No. F1-99-12857

 

 

Anne M. Honsa, Lisa M. Meier, Honsa & Michales, P.A., 5500 Wayzata Boulevard, Suite 1075, Minneapolis, MN 55416 (for respondent)

 

A. Larry Katz, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for appellant)

 

 

            Considered and decided by Klaphake, Presiding Judge; Randall, Judge; and Crippen, Judge.*

 

U N P U B L I S H E D  O P I N I O N

 

RANDALL, Judge

            Appellant Roger Doom challenges the district court’s refusal to eliminate his maintenance obligation, arguing that the evidence showed a substantial change in circumstances that made his obligation unreasonable and unfair.  Respondent challenges the district court’s failure to grant her requests for relief.  We affirm on all issues. 

FACTS

            Appellant Roger Doom and respondent Doris Doom were married in 1967 and have two adult children.  In March 1999, respondent petitioned for dissolution of the marriage.  Appellant was a stockbroker working for A.G. Edwards, and at the time of dissolution, made around $317,487 per year.  Appellant agreed to pay respondent $6,500 per month in maintenance for ten (10) years, and to maintain health insurance for her.  Respondent was also to receive a property settlement of $835,209 in investment and retirement accounts, and a one-time cash payment of $122,017.80.

            After a hearing at which both parties acknowledged the agreement, respondent discharged her attorney and, through her new attorney, brought a motion to stop the agreement from being entered as a judgment.  Respondent argued that she was uncomfortable with the agreement, claiming her former attorney pressured her into accepting.  The district court denied that motion, and this court affirmed the decision.  Doom v. Doom, No. C1-01-54 (Minn. App. Jun. 12, 2001).

            Respondent has had a hard time collecting both maintenance and her share of the property settlement from appellant, and has not managed to claim all that she was awarded.  Numerous judgments have been entered against appellant, and he was once taken into custody for contempt.  He does not dispute that he has not paid respondent considerable amounts of maintenance or that he did not transfer all of the investment properties to her that he should have under the decree.  Appellant does not appear to dispute that over $100,000 in judgments against him remain unsatisfied.

            On November 21, 2002, appellant moved for termination of his spousal maintenance obligation and his obligation to provide respondent’s health care.  Appellant argued that his income had substantially decreased, making the agreement that he would pay $6,500 per month to respondent unfair.  After extensive discovery, the parties presented conflicting affidavits from accounting experts regarding appellant’s finances. 

            Respondent also moved the district court to enter judgment against appellant for maintenance arrears; for monies she had not received under the property settlement; and for bad-faith attorney fees that the district court had previously awarded respondent.  Respondent also requested a new award of costs and attorney fees, and for an order allowing her to execute all money judgments against appellant.

            After an evidentiary hearing, the district court issued an order dated April 8.  The court found that appellant had not shown that his circumstances had changed significantly and denied his motion to terminate maintenance.  The court did not specifically address respondent’s motions, but stated that all previous orders were to remain in effect, and that any motions not addressed were denied. 

            On May 19, 2003, appellant moved the district court to amend its findings and order, arguing that the April 8 order showed insufficient consideration of the factors found in Minn. Stat. § 518.552 (2002) and that the ruling was unsupported by the evidence.  Respondent opposed the motion, arguing that the district court’s consideration of the statutory factors was implicit in its order.

            Another hearing was held, and on July 1, the district court issued an amended order and memorandum of law detailing its considerations and expanding its findings.  The district court did not change its ruling that appellant had failed to show that his circumstances had changed significantly, and did not otherwise alter its April 8 ruling.  This appeal follows. 

D E C I S I O N

I.

            The district court generally has broad discretion to modify spousal maintenance obligations, and will not be reversed absent an abuse of that discretion.  Rubenstein v. Rubenstein, 295 Minn. 29, 32, 202 N.W.2d 662, 663-4 (1972).  The district court’s findings regarding maintenance shall not be set aside unless they are clearly erroneous.  Minn. R. Civ. P. 52.01, McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).  Appellant argues that the district court abused its discretion by ignoring evidence that his income has decreased by more than half since the time of dissolution and by refusing to terminate maintenance and his other financial obligations to respondent.

A party moving for modification of a maintenance obligation bears the burden of showing not only a substantial change in circumstances, but also that the change makes the current obligation unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  This change must be shown by “clear proof of facts.”  Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980).  The district court should consider the factors found in Minn. Stat. § 518.552 when determining whether to modify maintenance.  Minn. Stat. § 518.64, subd. 2(c) (2002). 

            Appellant argues that the evidence he presented to the district court compels the finding that his income has decreased by over half since the time of dissolution and that the $6,500 per month maintenance award has become unreasonable and unfair.            

            In its amended order, the district court agreed with appellant that it should more fully explain its decision to deny his motion to terminate maintenance.  The court specifically found that appellant failed to meet his burden of showing that his income from commissions had decreased.  The court cited appellant’s 2002 W-2 form, appellant’s affidavit, and appellant’s graphs and tables.  The court found that appellant failed to produce copies of his personal or partnership tax returns, his monthly expenses, or evidence of his total income for 2002.  The court also found that appellant had failed to comply with the terms of the decree by not paying maintenance and not transferring assets to respondent, as well as by failing to pay the property division equalizer he was ordered to pay.              The court’s findings are not clearly erroneous.  Presented with conflicting documentation from the parties, the district court found respondent’s expert more credible and found that appellant had not proved that his income and financial circumstances had substantially changed.  This court gives due regard to the district court’s ability to judge credibility.  Minn. R. Civ. P. 52.01.  Appellate courts do not generally reverse a district court’s judgment merely because we might have viewed the evidence differently.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).         

            Further, the burden was on appellant to show not only a change in circumstances, but also that the change made his existing maintenance obligation unfair.  Hecker, 568 N.W.2d at 709.  The district court specifically noted that appellant had failed to show that any change in circumstances made the terms of the stipulation unfair and unreasonable.  The findings of fact and the record support that conclusion.  Appellant is, for the most part, respondent’s sole source of income.  Because of her limited training and work history, respondent will not likely be able to provide for her monthly expenses. 

Appellant failed to meet many of his stipulated financial obligations to respondent starting right after the dissolution and continuing to the time of the modification hearing.  He failed to transfer assets to her, and amassed considerable maintenance arrears.  Appellant, despite his claims of significantly diminished earnings, lives a very comfortable lifestyle and claims that his expenses have not decreased since the dissolution. 

Based on these facts, the district court did not clearly err in finding that appellant had failed to meet his burden of proof that the original maintenance obligation had become unreasonable and unfair, and did not abuse its discretion by denying his motion to terminate his maintenance obligation.

II.

Respondent asked the district court for affirmative relief in the form of orders requiring appellant to: pay $24,700 for maintenance arrears from October 2002 through January 2003; pay $3,384.43 for an unpaid attorney fees award; turn any present and future tax refunds over to respondent to satisfy $145,452.42 of unsatisfied judgments; effectuate transfer of an investment account to respondent as previously ordered; pay moneys he wrongfully failed to transfer from other funds; and pay $32,488.88 for respondent’s attorney fees in connection with the motion.  Although the district court did not specifically address respondent’s requests, it both ordered that all motions not addressed were denied, and stated:  “[a]ll other terms of the Court’s previous Orders shall remain in full force and effect.” 

            Under this ruling, all previous judgments against appellant remain collectible under the normal procedures for collecting judgments.    Because the district court specified that all prior orders were still in effect, the previously ordered maintenance arrears and unsatisfied judgments have not “disappeared.”  Additionally, Minn. Stat. § 548.091 (2002) may provide respondent with additional remedies.  Because the ruling kept alive all prior relief granted respondent, and does not preclude her from obtaining any otherwise appropriate relief in the future, the district court did not err in denying respondent’s request to, in effect, repeat previous orders granting relief to respondent. 

             Respondent argues that the district court abused its discretion in refusing to grant her an award of $32,488.88 as conduct-based attorney fees against appellant for his bad-faith conduct in refusing to satisfy the terms of the dissolution judgment and the other judgments against him.

            Under Minn. Stat. § 518.14, subd. 1 (2002), a district court may award attorney fees against a party who “unreasonably contributes to the length or expense of the proceeding.”  This power lies almost entirely within the district court’s discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). 

We do understand respondent’s position, and she presents arguments for how appellant contributed to the length and expense of the proceedings by refusing to comply with all terms of the dissolution judgment and the other judgments.  However, the district court took note of all its previous orders and the large amount of assets in the hands of both parties, and did not award respondent further attorney fees.  We cannot say the district court abused its discretion by denying respondent’s motion for more attorney fees.

            Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.