This opinion will be unpublished and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

A03-1388

 

In re Dennis William Riebe, petitioner,

Appellant,

 

vs.

Erlynn Ariette Riebe,

Respondent.

 

Filed May 18, 2004

Affirmed

Gordon W. Shumaker, Judge

 

Meeker County District Court

File No. F6-93-575

 

Dennis W. Riebe, 126 Eugene Street, Darwin, MN 55324 (pro se appellant)
 

Timothy J. Simonson, Rodney C. Hanson, Anderson, Larson, Hanson & Saunders, P.L.L.P., 331 Southwest Third Street, P.O. Box 130, Willmar, MN 56201 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.
 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

In this post-marriage dissolution judgment proceeding, pro se appellant appears to seek relief from the district court’s order denying his motion for modification of his maintenance obligation because he claims he is unable to pay and because the bankruptcy court discharged his debts.  Appellant also alleges unspecified procedural irregularities in the district court proceedings.  Because the district court did not commit procedural errors and the other issues are without merit, we affirm.

FACTS

            The parties’ judgment and decree of marriage dissolution provided that “maintenance is reserved, given property [payments] to wife that will be made through January 10, 1996.”  Appellant Dennis Riebe held a PEBSCO pension account at the time of the dissolution.  In their marital-termination agreement, the parties agreed to divide that account so that respondent Erlynn Riebe would receive $16,000 in three installments, the last being due January 10, 1996.  The judgment and decree provided that if any payment remained in default for 30 days after notice, respondent would be allowed an ex parte judgment and attorney fees.

            Appellant paid the first installment of $6,000, but then liquidated his PEBSCO account and failed to make the additional payments to respondent.  Thereafter, appellant obtained a discharge of that debt in bankruptcy.

            After the bankruptcy, the district court awarded to respondent temporary spousal maintenance of $300 each month for five years.  The court suspended this obligation for 11 months because appellant was incarcerated during that time.  While incarcerated, he injured his shoulder and knee.  Since his release, appellant has made only one maintenance payment, and he moved to modify the maintenance order on the grounds that his debts to respondent had been discharged in bankruptcy and that his physical disability prevented him from paying maintenance.  He submitted a report from an orthopedic surgeon indicating that he had a 32% permanent partial impairment.

            On July 29, 2003, the district court denied appellant’s motion and denied his request that maintenance arrearages of $1,580 be forgiven.  Appellant challenges those rulings on appeal.

D E C I S I O N

Appellant Dennis Riebe asks this court to reverse the district court’s orders because (1) the district court required that he “pay maintenance to [respondent] when [he] is totally unable,” asserting that respondent’s claim that he is “capable to earn higher wages [is] erroneous”; (2) respondent erroneously seeks “to collect two discharged debts”; and (3) “illegal court hearings” and “silent orders” have been issued.  Because appellant did not brief the issue of past-due maintenance, this issue is waived.  See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (stating issues not briefed are waived). 

In his brief, appellant makes no legal arguments and cites no authority, and thus we could conclude that appellant waived all issues.  Id.; see also Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating assignment of error based on mere assertion and unsupported by argument or authority waived unless error is obvious).  But in the interests of justice, we will exercise our authority to review appellant’s issues as provided by Minn. R. App. P. 103.04.  Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002).  

1.         Discharged Debts

            In the parties’ judgment and decree of dissolution, the district court reserved the issue of spousal maintenance because respondent was to receive certain property, including money from appellant’s pension account.  The logical interpretation of the judgment is that the pension payments would obviate the need for maintenance.

            It is indisputable that the bankruptcy court acted within its power when it discharged the balance of appellant’s pension obligation to respondent.  11 U.S.C. § 523(a)(5) (2002).  But that discharge left respondent without the property that caused her not to need maintenance.  Because the district court had reserved jurisdiction over the maintenance issue, it was appropriate for the court to consider a maintenance award after appellant deprived respondent of the payments that she would have received but for the bankruptcy.  Minn. Stat. § 518.552 (2002); Jones v. Jones, 300 Minn. 182, 186, 220 N.W.2d 287, 290 (1974).

            Spousal maintenance is not a dischargeable debt in bankruptcy.  11 U.S.C. § 523(a)(5).  Thus, the bankruptcy court order could not have included any obligation for spousal maintenance that the district court had the authority to impose.  Appellant misunderstands the concept of maintenance reservation and appears to argue that the bankruptcy forever extinguished all further indebtedness he could have to respondent.  He cites no authority for that proposition, and we are aware of no law that provides that a district court that reserved an award of spousal maintenance may not make an award at a later time if appropriate circumstances arise.

2.         Maintenance Modification

Appellant appears to argue that the district court abused its discretion in denying his motion to modify his maintenance obligation because he is now disabled and allegedly precluded from working and, as such, the court should have modified his maintenance obligation based on this change in circumstances. 

The district court has broad discretion in determining whether to modify a spousal maintenance award.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  “Effective appellate review of the exercise of that discretion is possible only when the trial court has issued sufficiently detailed findings of fact to demonstrate its consideration of all [relevant] factors.”  Stich v. Stich,  435 N.W.2d 52, 53 (Minn. 1989).  But where, as here, it is clear that the district court considered the factors expressly mandated by statute “there are occasions where an appellate court can find support for a trial court’s decision by an independent review of the record.”  Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986).

The factors relevant to a maintenance modification are enumerated in Minn. Stat. §§ 518.552, .64, subd. 2.  A party seeking modification of spousal maintenance bears the burden of (1) demonstrating that a substantial change in the needs or resources of either party has occurred and, if so, (2) that the change in circumstances has rendered the original maintenance award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(b); Hecker v. Hecker, 543 N.W.2d 678, 680 (Minn. App. 1996), aff’d, 568 N.W.2d 705 (Minn. 1997).  In determining whether a party has met his burden of showing a substantial change in circumstances, the district court must consider, “in addition to all other relevant factors, the factors for an award of maintenance under section 518.552 that exist at the time of the motion.”  Minn. Stat. § 518.64, subd. 2(c).  Here, the district court found that appellant “[w]hile an inmate at the MCF-Faribault . . . was seriously injured . . . and, due to his injuries, is disabled and unable to work.”  Appellant has shown that there was some change in his circumstances, but he then has the burden to show that the change has made the original maintenance award unreasonable and unfair.  

Appellant argues that the maintenance award is unreasonable and unfair because he claims his injuries prevent him from working.  In support of his assertion, appellant relies on Dr. Bernstein’s letter dated April 15, 2002.  But this letter states only that appellant’s condition “has not reached maximum medical improvement,” that “he will have permanent restrictions as the result of [his] injury [and that] [t]hese restrictions would include limited standing, walking and lifting.” The letter does not show, as appellant asserts, that he is unable to work.  On the contrary, the record shows that appellant could work with restrictions, as evidenced by Dr. Bernstein’s evaluation from Allina Medical Clinic dated June 30, 2003, which states appellant’s “condition is stable and is not improving.  He could work, but not using his arms in the overhead position or working above shoulder level.  He would also not be able to work at a job requiring prolonged standing or walking.”  Thus, appellant’s argument that he is completely unable to work is unsupported.  In addition, wages are not the only possible source of income for appellant.

Respondent argues that appellant is eligible for social security disability insurance benefits and notes that the district court found that appellant earned an hourly rate of $18 to $22 per hour prior to his disability.  Social security benefits are not precluded from being considered income in determining a maintenance award, and thus could be considered as income here.  See Sward v. Sward, 410 N.W.2d 442, 444 (Minn. App. 1987) (holding that “social security disability benefits may be considered ‘income’ in setting . . . maintenance awards”).  Appellant does not contend that he is ineligible for social security disability benefits.  And an independent review of the record discloses no affirmative evidence showing that appellant is not able to make the maintenance payments as ordered.   

Here, appellant showed and the district court found that appellant is partially disabled, but appellant failed to carry his burden to show how the maintenance award is unfair and unreasonable because of that disability.  Because appellant has the burden to show that the continued payment of the maintenance order would be unfair or unreasonable and he fails to carry this burden, we conclude that the district court did not abuse its discretion in denying appellant’s motion for maintenance modification.

3.         Procedural Irregularities

Appellant also alleges unspecified procedural irregularities in the district court proceedings, but does not say anything more specific than that there were “illegal court hearings” and “silent orders.”  He makes no legal argument and cites no authority for his assertions.  Assignment of error based on mere assertion and unsupported by argument or authority is waived unless error is obvious.  Balder, 399 N.W.2d at 80; Schoepke, 290 Minn. at 519-20, 187 N.W.2d at 135.

            Affirmed.