This opinion will be unpublished and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
In re the Marriage of:
Ann Norton Toussaint, petitioner,
Michael Ray Pedersen,
Filed September 7, 2004
Reversed and remanded
Goodhue County District Court
File No. F4-02-243
Lawrence D. Downing, Lawrence Downing & Associates, 330 Wells Fargo Center, 21 First Avenue Southwest, Rochester, MN 55902 (for respondent)
Shelly D. Rohr, Wolf, Rohr & Dolan, P.A., 400 North Robert Street, Suite 1860, St. Paul, MN 55101 (for appellant)
Considered and decided by Randall, Presiding Judge, Willis, Judge, and Minge, Judge.
On appeal in this maintenance dispute, appellant argues that (1) the district court erred in ruling that respondent’s receipt of social security disability benefits was not a substantial change in circumstances; (2) the combination of respondent’s social security disability benefits and her current maintenance award exceeds respondent’s reasonable monthly needs, making appellant’s current maintenance obligation unreasonable and unfair; (3) the district court failed to make adequate findings on the maintenance factors; and (4) the district court’s order is inconsistent with its prior rulings. We reverse and remand.
Appellant Michael Pedersen and respondent Ann Toussaint divorced in 2002. Appellant is a veterinarian and owns a veterinary business in Cannon Falls. Prior to the parties’ dissolution, respondent worked for appellant as an animal health technician. In addition to her duties as an animal health technician, respondent assisted with cleaning, renovating, and preparing the building for clients. She also handled financial transactions for the business.
At the time of the dissolution, respondent was not working and applied for social security disability benefits due to complications from multiple sclerosis (MS). In 1997, respondent’s MS symptoms became progressive and chronic, and in early 2002, respondent was no longer capable of working. Respondent was earning an annual salary of $36,000 at the time her employment ceased.
After a five-day dissolution trial, the district court determined that respondent’s monthly expenses were $2,936 and that appellant’s monthly expenses were $2,308. Appellant’s income was determined by averaging the net income of his business during the past six years. The district court determined that appellant’s average monthly cash draw was $5,659, and then deducted appellant’s child support obligation of $721 per month. The court found that appellant’s pre-tax monthly income was $4,938.
The district court determined that respondent was unable to support herself and that “[her] prospects of ever again becoming self-supporting through gainful employment are greatly uncertain.” The court awarded respondent $2,500 per month in permanent spousal maintenance. The district court noted that respondent “shall inform [appellant] within one month of receipt of any [social security] benefits or retroactive benefits.” Respondent began receiving those social security benefits and did not inform appellant of that fact. After learning on his own that respondent was receiving approximately $1,425 per month in social security disability benefits, appellant filed a motion requesting modification of his permanent spousal maintenance obligation. In addition to arguing that respondent’s circumstances substantially changed, appellant claimed that his monthly expenses had increased to $2,644 and that his income from the business had decreased.
Respondent opposed the motion, claiming that her expenses had increased from $2,936 to $3,995. She also requested attorney fees and costs for having to defend against appellant’s motion.
The district court denied appellant’s motion to modify his permanent spousal maintenance obligation. The court found that there had been no substantial change in the circumstances of the parties. The district court denied respondent’s motion for attorney fees.
On appeal, appellant challenges the district court’s denial of his motion for modification. Respondent seeks review of the district court’s denial of her motion for attorney fees.
1. Spousal Maintenance
Whether to modify spousal maintenance is discretionary with the district court. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A district court abuses its discretion regarding maintenance if its findings of fact are unsupported by the record or if it improperly applies the law. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
A district court may modify spousal maintenance upon a showing that a substantial decrease in a party’s earnings makes the terms of the original decree unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (2002). The party seeking modification of spousal maintenance has the burden of showing that (1) a substantial change in circumstances has occurred; and (2) the substantial change makes the existing spousal maintenance award unreasonable and unfair. Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).
Appellant argues that respondent’s receipt of social security disability benefits constitutes a substantial change in circumstances. We agree.
In June 2002, respondent began receiving social security disability benefits in the amount of $1,425 per month. In August 2003, she received a lump sum of $16,658.25 for retroactive benefits. After learning of this, appellant moved for modification of his permanent spousal maintenance obligation. In its November 26, 2003 order denying appellant’s motion to modify, the district court stated:
In the initial dissolution decree in May, the district court stated in relevant part:
[Respondent] is not currently working and has applied for social security disability benefits. At the present time, there is no assurance whether she might receive benefits, in what level the benefits might be, when the benefits might begin, and if any amounts might be retroactive. . . .
If [respondent] receives Social Security Disability, [respondent] shall inform [appellant] within one month of receipt of any benefits or retroactive benefits.
2. Respondent’s Trial Court Attorney Fees
Respondent argues that the district court abused its discretion by denying her request for attorney fees during the dissolution proceedings and for defending against appellant’s motion for modification. In his reply brief, appellant argues that the record does not support an award of attorney fees. This issue is moot. Prior to this case, as we noted in footnote one of this opinion, the parties had previously appealed issues from the dissolution, including the district court’s refusal to award attorney fees to respondent. That case was decided on June 14, 2004, and stands as the law of the case regarding respondent’s request for trial attorney fees. As discussed below, based on the parties’ circumstances, we deny respondent’s request for attorney fees for defining appellant’s motion.
3. Respondent’s Attorney Fees on Appeal
Respondent now seeks attorney fees on appeal under Minn. Stat. § 518.14, subd. 1 (2002). Appellant argues that his motion for modification was made in good faith and that there is no basis in the record supporting an award for attorney fees on appeal.
It is within this court’s discretion to award attorney fees on appeal. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989). An appellate court may award attorney fees if it finds that “the fees are necessary for the good-faith assertion of the party’s rights,” that the party requesting fees does not have the means to pay, and “that the party from whom fees . . . are sought has the means to pay them.” Minn. Stat. § 518.14, subd. 1 (2002). Appellate courts may also award fees based on conduct when a party unreasonably contributes to the length of the proceeding. Id.
Respondent filed a motion for need-based and conduct-based fees under Minn. Stat. § 518.14, subd. 1 (2002). She seeks $6,277.78 for 39.20 hours spent responding to the appeal. Respondent also requested $1,250 in connection with her attorney’s oral argument. We reject the request. As appellant points out, in addition to her spousal maintenance and social security disability income, respondent received a substantial amount of funds allowing her to pay her own attorney fees. Appellant points out that respondent received a property settlement in excess of $290,000 and had an initial cash payment of $115,526. Appellant notes that respondent received an additional $20,800 payment in January 2004 and received a $16,658.25 lump-sum social security payment for retroactive disability benefits. The record supports appellant’s assertions. This court previously declined to grant respondent her trial attorney fees based on different factors, including the amount respondent received in the property settlement. See Toussaint v. Pedersen, No. F4-02-243, 2004 WL 1326826, *2 (Minn. App. June 14, 2004). We decline to award respondent attorney fees on appeal with similar reasoning. Respondent provided no support for her claim that appellant brought this appeal in bad faith. In the original decree, the district court specifically allowed for appellant to bring a modification motion upon learning of respondent’s receipt of social security disability benefits. We find nothing frivolous about his motion.
We deny respondent’s motion for need-based and/or conduct-based attorney fees. This case is remanded to the district court to consider the issue of whether the present permanent spousal maintenance award is unreasonable and unfair in light of the substantial change upward in respondent’s financial circumstances.
Reversed and remanded.
 The parties recently appealed the district court’s property division and refusal to award attorney fees. See Toussaint v. Pedersen, No. F4-02-243, 2004 WL 1326826 (Minn. App. June 14, 2004). This court affirmed in part, reversed in part, and remanded the case to the district court. Id. The district court determined that the property award lacked “clarity” and reversed and remanded for further findings. Id. at 2. This court affirmed the district court’s denial of respondent’s motion for attorney fees. Id.
 Appellant has one minor child from a previous relationship.