This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







In re the Marriage of:

Joseph James Flaherty, petitioner,





Barbara Jean Flaherty,




Filed March 16, 2004

Reversed and remanded
Klaphake, Judge


Ramsey County District Court

File No. F3-98-847


Steven B. Schmidt, Kimberly A. Ross, Rider Bennett, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402 (for appellant)


Susan M. Lach, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN  55402-4218 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Forsberg, Judge.*


U N P U B L I S H E D   O P I N I O N


            Appellant Joseph James Flaherty challenges the district court’s decision to convert his temporary maintenance obligation into a permanent obligation and to increase the amount from $3,500 to $5,600 per month.  He argues that the evidence fails to show that respondent Barbara Jean Flaherty used her best efforts to become healthy and employed and that all of the mental health professionals who have evaluated her, including her own counselor, have concluded that she is not disabled or prevented from working.

            Because the evidence shows that, with the exception of continuing to see her long-time counselor, respondent has failed to make any other attempts to become healthy, rehabilitate herself, or become employed, we reverse the award of permanent maintenance and remand to reinstate the prior award of temporary maintenance.


            At the time of the two-day evidentiary hearing in July 2002, respondent was 44 years old and had not worked on a full-time basis since March 1996, when she took a leave of absence at the urging of her counselor, Todd Mulliken, who indicated that she was “experiencing severe marital discord [and was] having a difficult time coping with life due to this family crisis.”  Prior to that time, respondent had no history of depression or other mental health problems.  She had worked full time for most of the parties’ 18-year marriage and was earning approximately $45,000 when she took her leave.

            In December 1996, upon learning that appellant wanted to end the marriage, respondent took an overdose of pills and was hospitalized for approximately three days.  In January 1997, respondent participated in a hospital outpatient program for depression.  Respondent has not been hospitalized or participated in any inpatient or outpatient treatment programs since.

            After a one-year leave of absence, respondent returned to work on a part-time basis in March 1997.  Within one month of her return, she was diagnosed with breast cancer and required another leave of absence.  Following her recovery from a double mastectomy, Mulliken released her to return to work in August 1997.  By that time, however, respondent’s position was no longer open.  Respondent has not actively pursued employment since that time and remains unemployed.

            In 1999, the parties entered into a marital termination agreement that was incorporated into the May 1999 judgment and decree.  In particular, the parties agreed that respondent “suffers from severe and debilitating depression which is being treated but at the present time precludes her from being employed.”  The parties further agreed to temporary maintenance of $3,500 per month for a three-year period “during which time [r]espondent shall use her best efforts to become healthy and rehabilitate herself and become employed.”

            Prior to the expiration of the three-year period, respondent moved to convert the temporary maintenance obligation to permanent.  At the evidentiary hearing in July 2002, respondent claimed that she thinks about killing herself every day, that she does not read her mail, and has not balanced her checkbook in four years.  She testified that she would like to go back to work and be able to support herself, but that she doesn’t think she can do so at this point because “[i]f I am upset [or stressed] I just stay home.”  Respondent acknowledged, however, that she can leave the house to shop, eat out with friends, go to bars, attend concerts and plays, have her nails and hair done, work out with her personal trainer, and take trips to New York, Hawaii, Las Vegas, and California.  She has dated a number of different men.  Since the parties’ separation, besides the reconstructive breast surgery following her mastectomy, she has undergone a number of elective cosmetic procedures.

            Mulliken testified that he has a master’s degree in counseling and a bachelor’s degree in psychology.  Mulliken claims that respondent continues to suffer from debilitating depression and believes that she has used her best efforts to become employed but has failed.  He testified that her depression “manifests itself with severe hopelessness, chronic feeling of emptiness, depressed mood” and that “[m]ore often than not each day it is causing fatigue, low energy, as well as excessive guilt.”

            Mulliken admitted, however, that respondent is able to leave the house to go out to have dinner with friends, shop, work out at her health club, travel, and date men.  He acknowledged that he has attempted to help her set goals, including vocational goals, and that she is currently doing some volunteer work.  Mulliken further tended to agree that respondent has resisted many of his suggestions and recommendations regarding goal setting and taking antidepressants, and that her resistance is a possible obstacle to her treatment.

            Two experts called by appellant disagreed with Mulliken’s opinion that respondent suffers from severe depression and is unable to work.  Dr. Phillip Haber, a licensed psychologist and certified rehabilitation counselor, evaluated respondent in November 1998 and again in April 2002; each time, Haber concluded that respondent was able to work.  At the evidentiary hearing, Haber suggested that respondent’s lifestyle and activities do not fit with a diagnosis of depression and testified that respondent is “absolutely” capable of working fulltime and earning between $32,000 to $35,000 per year.

            Dr. Thomas Gratzer, a psychiatrist, testified that he examined appellant in June 2002.  His primary diagnosis was histrionic personality disorder with borderline and dependent features; his secondary diagnosis included dysthymia with generalized anxiety disorder.  While Gratzer admitted that respondent’s history is consistent with low-grade depression, he rejected a diagnosis of depression, given respondent’s test results and physical appearance.  Gratzer testified that respondent is not disabled or prevented from working from a psychiatric standpoint.  He stated that while she may be afraid to work, she is not incapable of doing so.  Gratzer believes that working would be beneficial to respondent and that she may be obtaining some secondary gain from her receipt of maintenance.

            In support of its decision to convert temporary maintenance to permanent, the district court found that respondent met her obligation to use her best efforts to become healthy, rehabilitate herself and become employed by pursuing therapy consistently “with the goal of reducing depression and becoming employed.”  The court further found that respondent “continues to suffer from severe and debilitating depression and anxiety disorder” and that “[i]n light of [her] chronic and serious mental health history and condition, . . . her failure to become self-supporting [will not be construed] as malingering, posturing for litigation, or an unjustifiable self-limitation of income.”  The court determined that because “the prospects of [r]espondent returning to the workplace are problematic and uncertain,” an award of permanent maintenance was appropriate.


            An appellate court reviews a district court’s maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989); 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, 569 N.W.2d at 202.  “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.  Findings are clearly erroneous if the record, when viewed in a light most favorable to those findings, requires us to reach “the definite and firm conviction that a mistake was made.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).

            The primary issue here is whether respondent used reasonable efforts to rehabilitate and become employed during the three-year period in which she received temporary maintenance, as she expressly agreed to under the terms of the parties’ stipulation.  The parties also stipulated that any review of the temporary maintenance obligation would be de novo and governed by Minn. Stat. § 518.552.  To the extent that the parties stipulated that respondent would use her best efforts to become healthy, rehabilitate herself, and become employed, they have incorporated the requirement, found in many modification cases, that a recipient has an obligation to use reasonable efforts to become self-sufficient.  See Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997); Youker v. Youker, 661 N.W.2d 266, 269 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  

            An award of permanent maintenance following a period of temporary maintenance is improper where the recipient fails to achieve some level of self-sufficiency due to his or her refusal to make reasonable efforts toward that goal.  Youker, 661 N.W.2d at 269-70 (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).

            Here, viewing the record in a light most favorable to the district court’s findings, we conclude that those findings are clearly erroneous because they are unsupported by the record.  Contrary to the district court’s findings, respondent does not have a chronic or long history of mental health problems; rather, she had no history of problems prior to March 1996, when the marriage began to deteriorate.  See Gales v. Gales, 553 N.W.2d 416, 421-22 (Minn. 1996) (stating that spouse’s emotional distress caused by dissolution should not by itself provide foundation for permanent maintenance award).  In addition, while maintaining an active social life, respondent has failed to follow even her own counselor’s recommendations regarding goal setting and medications, exploring the job market, and applying for work.

            With the exception of continuing her counseling sessions with Mulliken, respondent has done virtually nothing to become healthy, rehabilitate, and find a job.  While mental health problems may sometimes interfere with a party’s efforts and provide a basis for an award of permanent maintenance, none of the experts who have treated or evaluated respondent testified that she is disabled or unable to return to the workplace.  The district court’s findings that respondent has used her best efforts to become healthy and employed and that she remains unable to work are unsupported by the record.

            We therefore reverse the award of permanent maintenance and remand with directions to reinstate the prior award of temporary maintenance.  On remand, the court may adjust the amount and duration of the temporary maintenance, based on the factors set out in Minn. Stat. § 518.552 (2002).

            Given our decision to remand and reinstate the prior award of temporary maintenance, we need not fully address the other issues raised by appellant.  We do note, however, that under the terms of the parties’ stipulation and under Minnesota case law, respondent has an obligation to make reasonable efforts to meet her own needs not only through appropriate employment, but also through prudent investment of her marital assets and other resources.  We also note that the district court must consider respondent’s reasonable expenses and needs in light of the standard of living established during the marriage.  We further note that should appellant claim an inability to pay maintenance, the district court should give him an opportunity to establish whether his individual tax returns include retained earnings of his subchapter S corporation and whether those retained earnings should be considered in determining his disposable income.

            Finally, respondent has filed a notice of review challenging the district court’s denial of her request for an order requiring appellant to secure his maintenance obligation by life insurance.  Given our decision to remand, the district court should reconsider this issue, if necessary.

            Reversed and remanded.

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