This opinion will be unpublished and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:

Stephanie Lemenowsky, petitioner,





Lawrence J. Markley,



Filed July 27, 2004


Randall, Judge


St. Louis County District Court

File No. F9-01-600359



Michael Husby, 915 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802 (for respondent)


Lawrence J. Markley, 517 West Fourth Street, Duluth, MN 55806 (pro se appellant)



            Considered and decided by Wright, Presiding Judge, Randall, Judge, and Kalitowski, Judge.


U N P U B L I S H E D   O P I N I O N


Appellant Lawrence Markley challenges the district court’s denial of his motion to modify his maintenance obligation and his motion to compel discovery, and challenges the award of attorney fees to respondent.  We affirm.


            The parties dissolved their marriage in 2002.  The dissolution decree divided the parties’ assets and assigned their marital debts.  The district court found that appellant had a net monthly income of $3,503.24 from his job as a conductor for the Santa Fe-Burlington Northern Railway.  Adding a regularly received bonus, the district court found that appellant’s total net monthly income was $4,003.  Respondent’s net monthly income was $1,382.36.  The district court ordered appellant to pay respondent permanent spousal maintenance of $900 per month.  The parties were also ordered to sell their homestead, which also contained a rental property.  The sale did not occur because respondent was ultimately able to obtain financing to buy appellant’s share of the property and keep it herself, a transaction to which appellant had stipulated.

            In October 2003, appellant filed two motions, one to modify his maintenance obligation and the other to compel respondent to cooperate with his discovery requests.  Appellant argued that his income had decreased; constituting a substantial change in circumstances that rendered the original maintenance award unreasonable and unfair.  Appellant asked the district court to reduce his obligation by $450 per month.  Appellant also argued that respondent could not have bought the homestead unless she had undisclosed sources of income and that she had been uncooperative with his post-dissolution discovery requests, and, thus, he was unable to determine her “true income.”  Respondent denied having any undisclosed sources of income, showed that both her income and her expenses had increased since the dissolution, and requested attorney fees.

            The district court denied appellant’s motions and granted respondent’s motion for attorney fees.  The district court explained that appellant failed to show why his income had decreased or that he had not been self-limiting his income.  The court also explained that respondent’s expenses had legitimately increased, continuing her need for spousal maintenance.  Finally, the district court found that appellant’s motion to compel discovery was improper.  This appeal follows.


I.  Maintenance

            Appellant argues that the district court erred in denying his motion to modify his maintenance obligation.  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).  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). 

Appellant claimed that his income had decreased about $400 per month since the time of dissolution.  In support of his claim, he submitted an earnings statement from his employer and two affidavits.  It does not appear that the district court disbelieved appellant’s claim that his income decreased by $400, but it did find that he failed to sufficiently explain the decrease.  Appellant has not changed employers or professions.  The district court also found that appellant failed to show why his monthly expenses had increased and, most importantly, that he had failed to show that his gambling problem was not the cause of any increase.  Then the district court went through respondent’s income and expenses and found them to be reasonable, and found no substantial change in respondent’s circumstances.  Although appellant argues to this court that respondent’s housing expense is unreasonable, he did stipulate to her buying his interest in the homestead, which  contributed to the increase in her expenses. 

            While appellant’s income may have decreased, he did not provide any explanation for that fact and did not sufficiently refute respondent’s arguments that he was self-limiting his income or spending excessive amounts of money on gambling.  The district court’s findings are supported by the record.  The district court did not abuse its discretion in determining that appellant failed to meet his burden of showing a substantial change in circumstances that rendered the maintenance award unfair or unreasonable. 

II.  Discovery motion

Appellant argues that the district court improperly denied his motion to compel respondent to respond to his interrogatories and requests for documents.  The decision to grant or deny a discovery request is generally within the discretion of the district court.  Pearson v. Henkemeyer, 503 N.W.2d 504, 508 (Minn. App. 1993), review denied (Minn. Sept. 30, 1993). 

Here, as the district court noted, when appellant served his interrogatories on respondent, he had not yet filed his motion to modify maintenance, meaning that there was no pending matter before the court.  On these facts, respondent was under no obligation to respond to interrogatories.  Respondent’s attorney stated at the motion hearing that his client answered the interrogatories only after appellant served the motions to modify maintenance and to compel discovery.  The service of the motion to compel discovery was premature and procedurally defective.  It was proper for the district court to deny appellant’s motion.

III.  Attorney fees

Finally, appellant argues that the district court abused its discretion by awarding respondent attorney fees for the post-dissolution proceedings.  An award of attorney fees under Minn. Stat. § 518.14 (2002), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999). 

Respondent requested $1,500 in attorney fees.  The district court found that the requested fees were “necessary for the good-faith assertion of [respondent’s] rights, do not contribute unnecessarily to the length and expense of the proceeding, [appellant] has the ability to pay said fees, and [respondent] does not have the ability to pay said fees.”  After respondent submitted a more detailed affidavit outlining her attorney expenses, the district court reduced the award to $1,281.70, subtracting paralegal time and photocopies.

The district court had the financial information presented by both parties and exercised its discretion to award attorney fees.  It carefully omitted those expenses that it did not believe should properly be charged to appellant.  Based on our review of the record, we see no abuse of discretion in the attorney-fee award.