This opinion will be unpublished and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

A03-1093

 

 

In re Paula Veltkamp,

petitioner,

Respondent,

 

vs.

 

Lawrence Dean Veltkamp,

Appellant.

 

 

Filed March 16, 2004

Reversed and remanded
Klaphake, Judge

 

Carver County District Court

File No. F8-01-806

 

 

Linda S.S. de Beer, Cortney E. Whitehouse, De Beer & Associates, P.A., 300 Southdale Place, 3400 West 66th Street, Edina, MN  55435 (for respondent)

 

Daniel J. Goldberg, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, 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

KLAPHAKE, Judge

            Lawrence Dean Veltkamp appeals from the district court’s denial of his motions to (1) modify his award of temporary maintenance to permanent maintenance; (2) increase maintenance from $1,300 to $2,500 per month; and (3) require respondent Paula Veltkamp to pay his health insurance premiums, uninsured medication expenses, and attorney fees.  While the district court determined that there had been no change in circumstances from those existing at the time of the original judgment, it nevertheless decided to continue temporary maintenance at an increased amount ($1,600) for an additional seven months, until November 30, 2003, because appellant has a “continued need for temporary spousal maintenance” and has a “need for therapy and psychotherapeutic medications.”[1]

            Given the undisputed evidence regarding appellant’s chronic mental health problems and his inability to function on a daily basis, and given the uncertainty surrounding his ability to improve or to achieve some level of self-sufficiency, we reverse the district court’s order and remand with directions to reinstate temporary maintenance in the amount of $1,600 per month.  On remand, the district court must consider additional evidence regarding the current status of appellant’s mental health and ability to work.  Should appellant’s condition fail to improve or should he be unable to achieve some level of self-sufficiency through appropriate employment, despite reasonable efforts on his part, the district court must consider whether an award of permanent maintenance is warranted.

D E C I S I O N

            On appeal, we review a district court’s determination of issues involving modification of spousal maintenance, awards of attorney fees, and payment of other miscellaneous expenses under an abuse of discretion standard.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984);  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  A district court abuses its discretion if its findings of fact are unsupported by the record or if it improperly applies the law.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn. 1997).

            A district court may modify a spousal maintenance award only where the moving party shows that there has been a substantial change in circumstances that makes the current award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2002).  A recipient’s failure to achieve self-sufficiency after reasonable efforts may constitute a substantial change in circumstances warranting modification.  See Katter v. Katter, 457 N.W.2d 750, 753 (Minn. App. 1990).  The recipient generally must show that he or she has made some attempt to achieve self-sufficiency or to otherwise meet the expectations on which the temporary award was based.  See, e.g, Rydell v. Rydell, 310 N.W.2d 112, 114-15 (Minn. 1981) (reversing denial of modification where totally disabled wife with limited life expectancy established need due to increase in medical bills); Gessner v. Gessner, 487 N.W.2d 921, 924 (Minn. App. 1992) (affirming modification where wife had maximized income but was still unable to meet reasonable expenses); Katter, 457 N.W.2d at 753-54 (affirming modification where wife was appropriately employed but did not earn enough money to meet reasonable living expenses).  Modification may be denied, however, when a recipient fails to achieve self-sufficiency due to his or her refusal to make reasonable efforts toward that goal.  Youker v. Youker, 661 N.W.2d 266, 269-70 (Minn. App. 2003) (reversing district court’s decision to modify maintenance award to permanent, where recipient failed to achieve self-sufficiency due to her failure to make reasonable efforts), review denied (Minn. Aug. 5, 2003).

            Here, appellant insists that modification was warranted because the assumptions made by the court when it awarded him temporary maintenance have failed to materialize.  We agree.  Following a trial on the issue of spousal maintenance, the district court awarded appellant temporary spousal maintenance for a one-year period or until April 2003:

[I]t is appropriate that [appellant] complete the homestead [that he received] over the next year, not because he is unable to find or hold a job, but because this will be the highest and best use of his talents during that year.  This will also give [appellant] a flexible schedule that will allow him to complete after care [treatment for his depression].  [Appellant] will be under reduced stress so he can address his issues of separation from [respondent] and other depression issues.

 

Just prior to the end of this one-year period, in March 2003, appellant brought this motion to modify.

            In support of his motion, appellant submitted an affidavit to update the court on his “circumstances since the trial in February 2002.”  Appellant states that his health insurance through Minnesota Care was terminated when the state determined that he had too many assets.  His attempts to obtain private health insurance have been rejected due to his preexisting condition of depression, but he admits that he is still eligible for coverage through the state at a cost of about $3,600 per year, not including deductibles.

            Appellant stopped taking his medications and attending therapy in October 2002, when he lost his insurance through Minnesota Care.  He claims that he suffers from depression daily and continues to have suicidal ideations.  He further states that he has been unable to complete his work on the house, that he is having “increasing problems with the City of Chanhassen that may prevent [him] from receiving any rental income,” that he has “had a lot of trouble with tenants for nonpayment of rent,” and that the “Chanhassen Police are furious with [him] because [he has] called them 43 times over the past year due to conflicts with [his] tenants.”  One of appellant’s tenants submitted an affidavit in which she stated that appellant’s depression “continues all day and every night,” that he is unable to take care of his finances and daily business, and that in her opinion he is unable to work due to his lack of concentration and tendency to nap after working on the house for only a few hours.

            In its order denying appellant’s modification motion, the district court found that appellant has not obtained employment and has accomplished “little, or no work, on the homestead as anticipated in the Judgment and Decree.”  The court cited a November 2002 letter from a licensed psychologist who treated appellant during the summer of 2002 and who indicated that appellant suffers from severe depression with suicidal ideation, but that he “appear[ed] to be making some progress in his ability to sustain structured employment.”  The court further found that since October 2002, when appellant quit going to therapy and taking his medication, he has had numerous contacts with law enforcement and increasing depression and suicidal ideation.  Despite these findings, the court reasoned that because appellant could have “continue[d] medical coverage on his own while he continued to improve his mental health,” he had failed to establish that there had been a substantial change in circumstances “except as brought about by [his] own actions by discontinuing therapy and medication.”

            In order to reach its decision, the district court had to find that, by discontinuing his treatment and medications, appellant failed to make reasonable efforts to improve his mental health, complete his work on the house, and become employed and self-sufficient.  The district court also had to find that because appellant had the ability to pay his medical premiums out-of-pocket once his insurance was cancelled by the state, his decision to not do so was voluntary and willful.

            We do not believe that the record supports these findings or the assumptions on which they are based.  The evidence regarding appellant’s mental health problems is undisputed:  at this point, his failure to continue with therapy and his inability to meet the expectations of the district court cannot be characterized as voluntary or willful, or as lacking in reasonable effort.  Nor do we believe that the district court’s expectations for appellant—that he has the ability to become self-sufficient in a one-year or seven-month period of time—are realistic or based on any evidence in the record.  To the contrary, the undisputed evidence shows that appellant suffers from severe and chronic depression with suicidal ideations, he has not worked steadily or on a fulltime basis outside the home for almost 20 years, he is unable to handle his finances, and his depression adversely affects his ability to function on a daily basis.

            We therefore reverse and remand with directions to reinstate temporary maintenance in the amount of $1,600 per month.  On remand, the district court must consider evidence regarding appellant’s current mental status and ability to work.  Any decision regarding the duration and amount of maintenance must be based on consideration of the appropriate statutory factors set out in Minn. Stat. § 518.552 (2002).  Even if appellant’s mental health improves and he has the ability to work at some point in the future, his need for maintenance may continue if it is uncertain whether he will ever achieve self-sufficiency and be able to meet his own needs.

            Finally, appellant also moved to increase the amount of maintenance, to require respondent to pay his medical insurance premiums and other unreimbursed costs, and for attorney fees.  Because of our decision to reverse and remand, we need not address these issues at this time.  On remand, the district court should reconsider appellant’s requests in light of any additional evidence it may obtain.  Given appellant’s unstable finances and to insure that he continues his treatment, the court could consider requiring respondent to pay for appellant’s medical insurance premiums and to adjust the amount of maintenance accordingly.

            The district court’s decision denying appellant’s motion to modify maintenance is reversed and remanded for further proceedings consistent with this opinion.

            Reversed and remanded.



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

[1] At oral arguments before this court, appellant’s attorney indicated that he brought another modification motion at the end of this seven-month period, which has been stayed in district court pending disposition of this appeal.  On remand, the district court should consider consolidating these two motions.