This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).







In re Judith Ann Simon,

f/k/a Judith Ann Charlson, petitioner,





Lynn Michael Simon,



Filed May 3, 2005

Affirmed; motion granted

Hudson, Judge


Hennepin County District Court

File No. DC 270858


M. Sue Wilson, James T. Williamson, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, Minnesota 55447 (for respondent)


Robert J. Hajek, Donald Beauclaire, Warchol, Berndt & Hajek, P.A., 3433 Broadway Street Northeast, Suite 110, Minneapolis, Minnesota 55413-1783 (for appellant)


            Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Lynn Michael Simon challenges the trial court’s award of permanent spousal maintenance to respondent Judith Ann Simon, f/k/a Judith Ann Charlson.  Appellant argues that the trial court failed to make sufficient findings, made findings of fact not supported by the record, and abused its discretion by awarding permanent maintenance.  Because we conclude that the trial court’s findings were adequate and supported by the record, and because the district court did not abuse its discretion by awarding permanent maintenance, we affirm.


            Respondent Judith Ann Simon, f/k/a Judith Ann Charlson, sought to end her 21-year marriage to appellant Lynn Michael Simon by a dissolution petition filed in October of 2001.  Appellant is currently 55 years old and respondent is currently 53 years old.  The parties have three daughters: N.S., age 22; K.S., age 17; and A.S., age 15.  As an emergency room physician, appellant was the primary wage earner throughout the parties’ marriage.  Respondent was a homemaker and never worked full-time during the marriage.

The evidence at the dissolution trial revealed that respondent earned a four-year nursing degree in 1973 and is licensed in Minnesota as a nurse.  She worked part-time as a nurse during the first nine years of the parties’ marriage.  For the last fourteen years of the marriage respondent did not work.  Respondent maintained the house, family, and the parties’ hobby dog kennel at appellant’s request. 

The parties’ two youngest children suffer from emotional and psychological problems.  K.S. was diagnosed with attention deficit hyperactive disorder (ADHD) in third grade, has been counseled in 2001 for anger, and at the time of trial attended therapy for depression and self-destructive behavior.  K.S. has cut herself and expressed suicidal thoughts.  At the time of trial, K.S. suffered from anxiety and panic attacks.  Besides medication to treat ADHD, K.S. takes Paxil, an antidepressant. 

A.S. was diagnosed with clinical depression in June 2001 and has attended therapy since that time.  A.S. was prescribed Prozac.  A.S. has tried to commit suicide more than once.  A.S. also scratches herself and picks at her scabs.  Respondent testified that A.S. is developing an eating disorder. 

Respondent testified that since the parties’ separation, she is generally home when the girls leave for and arrive home from school.  Respondent is home on the weekends and during the summer.  Respondent makes the girls’ dinner and has their friends over to the house.  Respondent also testified that, during the year preceding the dissolution trial, she took several short trips for dog shows and had her oldest daughter and adult niece and nephew supervise the younger daughters.  Respondent fears for her two younger daughters’ emotional and physical well-being if she is not able to be home before and after school and on weekends.  When asked if she feels a need to be present around the house, respondent testified, “I have to be there for [K.S.].  I’m her only security right now.”  Respondent also testified that she has not thought about getting a job, stating, “I could not physically do that with my kids at home right now, not with what they’ve been going through and running the kennel.” 

            Appellant’s employment evaluation expert, Alyce Hatch, testified that the Twin Cities has many nursing positions available on a daily basis.  Hatch testified that because there is a nursing shortage in the metropolitan area, employers are willing to hire people who have been out of the nursing field for “some time” and “orient them back into the workforce.”  Hatch testified that respondent would be required to complete on-site training or attend a six-week refresher course at a community college in order to re-orient herself to the nursing field.  Hatch testified that respondent could be hired immediately and earn $40,000 to $45,000 with minimal re-training and that respondent could earn up to $65,000 a year for work in a specialty-care unit within four to five years.  Hatch did not consider whether respondent had any physical limitations.

Respondent’s employment evaluation expert, Jan Lowe, disagreed with Hatch’s opinion that respondent could immediately or in the near future secure high-paying nursing jobs.  Lowe recommended that respondent earn a master’s degree in nursing to learn current nursing technology.  Lowe’s report is premised on the fact that respondent has to work “light-duty” jobs because of physical restrictions from injuries to respondent’s knee and elbow.  But Lowe testified that there is uncertainty about respondent’s employability with or without the physical limitations that Lowe assumed. 

            Following the dissolution trial, the trial court awarded respondent permanent spousal maintenance of $5,500 per month.  The trial court determined that appellant’s yearly salary in excess of $203,000 enables him to pay spousal maintenance, child support, and still meet his reasonable needs.  Appellant moved the trial court for amended findings, conclusions of law, or a new trial.  The trial court denied appellant’s motion and affirmed the award of permanent spousal maintenance in its amended findings of fact, conclusions of law, order for judgment, and judgment and decree.  This appeal follows.



Appellant argues that the trial court’s findings are insufficient to permit review.  Under Minnesota law, spousal maintenance may be awarded if the trial court finds that the spouse seeking maintenance:

(a)       lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or


(b)       is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home. 


Minn. Stat. § 518.552, subd. 1 (2004). 

Once the trial court determines that the spouse seeking maintenance meets the criteria set forth above, the trial court may set maintenance in an amount, and for a period of time, either temporary or permanent, as the court deems just, after considering all relevant factors set forth in Minn. Stat. § 518.552, subd. 2(a)-(h) (2004).  The factors to be considered when awarding maintenance include, among other things: (1) the financial resources of the party seeking maintenance; (2) the time necessary to acquire sufficient education and training and the probability that the party seeking maintenance will become self-supporting; (3) the standard of living established during the marriage; (4) the extent to which any employment experience has become outmoded; (5) the age and physical and emotional condition of the spouse seeking maintenance; (6) the ability of the payor spouse to contribute maintenance payments; and (7) the contribution of each party to the value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment.  Id.  “Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.”  Minn. Stat. § 518.552, subd. 3 (2004).

            Appellant argues that the trial court failed to make sufficient findings with regard to the “duration factor” described in Minn. Stat. § 518.552, subd. 2(b) (2004).  Subdivision 2(b) states:

The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting.


Appellant argues that the trial court “implicitly failed” to address this factor by not resolving the inconsistency between the two employment evaluators’ testimonies regarding whether respondent could become fully or partially self-supporting. 

            But the trial court made adequate findings on each of the factors listed in Minn. Stat. § 518.552, subd. 2.  Regarding Minn. Stat. § 518.552, subd. 2(b), the trial court stated that Hatch, appellant’s expert, testified that respondent could enter the nursing field after completing a retraining program, earning between $20.75 and $31.40 per hour.  The trial court also noted that Lowe, respondent’s expert, testified that respondent faced significant barriers to finding nursing employment because of respondent’s lack of recent work experience.  The trial court found that respondent’s “ability to become fully self-supporting is uncertain, at best.”  In its amended findings of fact and conclusions of law, the trial court clarified this finding, stating:

the court finds that, given the condition of the parties’ children, any employment by [respondent] at this time, part-time or full-time, would be detrimental to the children.  Thus, the court did not resolve the dispute in opinions between [Alyce] Hatch and Jan Lowe as set forth above.  Should the condition of the children improve, or when they become emancipated (an emotionally troubled teenager’s need for an active, involved parent does not end magically on her 18th birthday), [respondent] may well be in a position to earn some income and thus become partially self-supporting.  There is great uncertainty about this.  [Respondent] will be 57 when her youngest child turns 18.  The court does not know what her ability would be to reenter the workforce at that time.


            In both the original findings and in the amended findings, the trial court indicated that respondent’s ability to become fully self-supporting is uncertain.  Furthermore, the trial court found that it was unnecessary to resolve the conflict in the employment experts’ testimonies because any employment by respondent would be detrimental to the children.  We conclude that the trial court provided sufficient findings.


            Next, appellant argues that the record is insufficient to support the trial court’s findings.  Findings of fact are not set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  That the record might support findings other than those made by the trial court does not render the findings clearly erroneous, and appellate courts view the “evidence in the light most favorable to the trial court’s findings.”  Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000).        

Appellant argues that the following findings are not supported by the record: (1) the parties’ children need their mother at home because of their psychological and emotional issues, and (2) a part-time or full-time job would take away the energy that respondent needs to attend to the children’s needs when they are not in school.  Appellant argues that there is no evidence that the parties’ children need their mother at home, that respondent is frequently absent from the home, and that the parties’ two youngest daughters’ medical conditions are improving. 

Respondent testified that she could not manage a job with her children’s medical issues and that she fears for her children’s emotional and physical well-being if she is not able to be at home for them after school and on weekends.  Respondent testified that she has to be home for K.S. because she is K.S.’s “only security,” and that she picks K.S. up from school sometimes.  In addition, the record reflects that respondent is providing nearly all of the caregiving to the parties’ children and that appellant had minimal contact with his children for approximately eleven months, from May 2002 to April 2003. 

Further, appellant mischaracterizes the evidence when he states that respondent is “frequently absent” from the home.  Respondent testified that she sometimes runs errands when the children come home from school such as buying groceries and attending medical appointments, that she has made several trips out of town for up to four days for the parties’ dog-kennel business, and that she took one five-day vacation since the parties separated.  Finally, appellant’s contention that the children’s mental and emotional health is improving does not mean that the children do not need their mother’s full energy and time anymore.  Accordingly, on this record, we conclude that the trial court’s findings of fact are not clearly erroneous.



Appellant argues the trial court abused its discretion in awarding permanent spousal maintenance.[1]  We review the district court’s award of permanent maintenance under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court abuses its discretion if it resolves the matter in a manner “that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).   

The trial court found that the parties had a traditional long-term marriage; enjoyed a comfortable, upper middle-class standard of living; respondent sacrificed her potential career in nursing in order to serve as a traditional homemaker and raise the parties’ children; respondent has never worked full-time during the marriage and does not realize any income from employment; respondent lost earnings and benefits because she served as a full-time homemaker; respondent made substantial contributions to the marriage as a homemaker, in building the parties’ dog-kennel business, and in furtherance of appellant’s career; respondent’s ability to become fully self-supporting is uncertain; at 51[2] respondent is in good health, but her elbow and knee injuries are barriers to nursing employment; and appellant is capable of meeting his monthly living expenses after paying maximum guideline child support and $5,500 monthly permanent spousal maintenance based on his yearly salary exceeding $200,000. 

Appellant cites Gales v. Gales, 553 N.W.2d 416, 421 (Minn. 1996), for the proposition that “to consider an award of permanent maintenance, there must be an exceptional case such as the dissolution of a long-term, traditional marriage in which there is an older, dependent spouse who has little likelihood of achieving self-sufficiency because of an absence from the labor market for a long period of time.”  Appellant argues that the trial court should have awarded respondent temporary spousal maintenance because, like the ex-wife in Gales, she has the experience and ability to work. 

Appellant incorrectly argues that the trial court must find an “exceptional case” in order to grant permanent spousal maintenance.  See Chamberlain v. Chamberlain, 615 N.W.2d 405, 410–11 (Minn. App. 2000) (holding that trial courts should cease applying the “exceptional-case” standard for awarding permanent maintenance).  Further, Gales is easily distinguishable.  In Gales, the parties sought dissolution of an 11-year, childless marriage during which the 32-year-old ex-wife worked as a bank teller.  Gales, 553 N.W.2d at 417.  In contrast, the parties here had been married for 21 years; they had produced three children; respondent was 51 at the time of dissolution; and respondent had never worked full-time during the marriage and had not worked at all during the last 14 years because she was a homemaker.

Next, appellant seeks to distinguish this case from Nardini v. Nardini, 414 N.W.2d 184, 186, 199 (Minn. 1987), in which the Minnesota Supreme Court awarded a spouse, who was the homemaker and periodic bookkeeper of the family business for 29 years, permanent spousal maintenance, and left the award open for later modification by the district court.  Appellant argues that respondent is capable of providing self-support because she has a nursing degree and could immediately be employable at approximately $40,000 to $45,000 per year after taking a refresher course.  But appellant’s argument fails because the trial court found that it was uncertain whether appellant could become self-supporting after re-training.  Furthermore, the trial court found that the parties’ children need their mother at home full-time, and that the trial court could not determine if respondent would be capable of adequately self-supporting herself at 57 when the last minor child emancipates.

Additionally, the Nardini court found that the prospect of Ms. Nardini becoming fully self-supported was uncertain, despite the trial court’s finding that Ms. Nardini was “an able bodied woman capable of employment and training for employment.”  Id. at 197–98.  Thus, as respondent argues, the Minnesota Supreme Court rejected appellant’s argument that the ability to work and appropriate employment are synonymous.  See id. at 198. 

On this record, the trial court did not abuse its discretion by awarding permanent spousal maintenance where the trial court found that the parties’ children need their mother at home full-time based on their serious medical issues and because it is uncertain whether respondent will be able to become self-sufficient at 57 years old when her last child emancipates.  Given this uncertainty, the trial court resolved the doubt in favor of permanency.  See Minn. Stat. § 518.552, subd. 3.  Furthermore, if respondent earns sufficient income in the future to make spousal maintenance unnecessary, or if appellant encounters severe financial difficulty such that it is impossible to maintain the maintenance award, the award may be modified by the trial court.  See Minn. Stat. § 518.64, subd. 2 (2004). 



Appellant moves this court to strike portions of respondent’s brief as outside the record on appeal.  The record on appeal consists solely of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any.”  Minn. R. Civ. App. P. 110.01.  This court will strike documents included in a party’s brief that are not part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993). 

Appellant argues that this court should strike all documents and references in respondent’s brief and appendix that discuss the status of respondent’s physical restrictions and the medical conditions of the parties’ children since trial.  Appellant indicates that such documents were part of respondent’s opposition to appellant’s motion for visitation-mediation made after the trial, and the trial court did not consider these documents in issuing its order for amended findings.  Respondent counters that appellant did not object to respondent attaching these documents in her responsive motion to appellant’s motion for parenting-time mediation.  Further, appellant argues that we can assume the trial court considered these documents when it issued its order for amended findings because the information contained therein “was an update of the evidence presented at trial.” 

Because the trial court did not consider the challenged documents in issuing its order for amended findings, we grant appellant’s motion to strike.


[1] In a special-term order, this court limited the issue on appeal to the duration of the spousal maintenance award.

[2] As stated above, respondent is now 53.