This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
In re the Marriage of:
Milne Kintner-Dee, petitioner,
Arthur Morris Dee,
Filed May 31, 2005
Affirmed in part and reversed in part
Hennepin County District Court
File No. DW 288096
Becky Toevs Rooney,
Theresa A. Capistrant, Capistrant & Associates, P.A., Uptown Business Center, 3009 Holmes Avenue South, Minneapolis, MN 55408 (for respondent)
Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from judgment in a marital-dissolution proceeding, Milne Kintner-Dee challenges the district court’s refusal to order spousal maintenance and attorneys’ fees. Kintner-Dee also challenges the provision in the judgment that reserves jurisdiction on spousal maintenance for Arthur Dee. Because the district court acted within its discretion in not ordering spousal maintenance or attorneys’ fees for Kintner-Dee, we affirm that part of the judgment. But because the record does not demonstrate that Dee sought spousal maintenance before the contested hearing or adequately demonstrated a basis for reserving the issue of maintenance, we reverse the reservation provision.
F A C T S
Milne Kintner-Dee and Arthur
Dee were married for thirty-two years and are the parents of two emancipated
children. At the time of dissolution,
Kintner-Dee was fifty-five and
The evidence submitted at the contested hearing showed that during the first twenty years of marriage, the household income averaged $50,000. Kintner-Dee testified that, until 1996, their combined income did not exceed $60,000 and that their greatest combined income was $72,000 in 1999. Although Kintner-Dee held occasional part-time jobs, she was not employed outside the home during most of the years of marriage. She secured a full-time position as a receptionist in 1997, earning an annual salary of $17,000.
In 1999 Kintner-Dee obtained certification as a personal life coach and began working as a self-employed personal coach. In the most recent years, her gross employment receipts show steady growth. In 2002 she had a gross income of $80,567 with a net of $52,971; in 2003 her gross income was $96,048 and her net income was $35,158. To calculate net income for 2003, Kintner-Dee subtracted approximately $59,700 in business expenses, ranging from $3,600 in reference materials to $4,600 in office supplies.
Kintner-Dee estimated her current monthly expenses as $6,500. These expenses include substantial amounts for personal services but also include approximately $1,000 for disability insurance, long-term care insurance, and contributions to her retirement. Kintner-Dee acknowledges that some of the expenditures are for items or services that exceed the standard of living during the marriage, and the record shows that these expenses are greater than the average income of the family during the marriage. The court found that Kintner-Dee’s net monthly income is $4,583 and her reasonable monthly expenses are $4,473.47.
At trial, Kintner-Dee sought spousal maintenance of $1,900
a month and attorneys’ fees, which amounted to roughly $10,580 at the time of
trial. Of this balance, she had paid
approximately $8,500. The district court
denied Kintner-Dee’s request for maintenance and attorneys’ fees and reserved
the maintenance issue for both parties.
Kintner-Dee now appeals the denial of maintenance and attorneys’ fees
and the reservation of maintenance for
D E C I S I O N
A court may order maintenance in a dissolution proceeding
when the evidence shows that the spouse “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.” Minn. Stat. § 518.552, subd. 1(a) (2004). Maintenance is also appropriate if the court
finds that the spouse “is unable to provide adequate self-support, after
considering the standard of living established during the marriage and all
relevant circumstances, through appropriate employment.” Minn. Stat. § 518.552, subd. 1(b) (2004). When the district court determines that
maintenance is appropriate, the amount and duration are established by
“consideration of many factors, a number of which are enumerated in Minn. Stat.
§ 518.552, subd. 2.” Dobrin
v. Dobrin, 569 N.W.2d 199, 201 (
The standard of review on
appeal from a maintenance determination is whether the district court abused
its discretion. Gales v. Gales, 553 N.W.2d 416, 418 (1996). An abuse of discretion occurs when the
district court reaches a “conclusion that is against logic and the facts on
record.” Rutten v. Rutten, 347
N.W.2d 47, 50 (
Kintner-Dee challenges the district court’s failure to consider various statutory factors, but these factors relate to amount and duration of maintenance, and specific consideration of these factors generally follows a determination on the availability of sufficient resources or the ability to be self-supporting. The district court took into account several of the additional statutory factors upon which Kintner-Dee relies for her argument. The district court expressly noted Kintner-Dee’s age, the long-term nature of the marriage, and her primary role as a homemaker. The district court also found that she is healthy, college educated, capable of employment, and has developed marketable skills. These findings indicate that the district court incorporated and weighed the relevant factors. The district court concluded that, given the parties’ standard of living throughout the marriage, Kintner-Dee is capable of providing self-support through appropriate employment.
The record supports the district court’s determination that Kintner-Dee has attained self-support through appropriate employment. Despite significant gaps in employment during the marriage to assume homemaking responsibilities, Kintner-Dee has succeeded in obtaining suitable employment, which provides significant income. She grossed in excess of $80,000 for the last two documented years. Although her calculations of net income for the two years amount to less than that determined by the court, the referee, as fact-finder, acted within his discretion to take into account the temporary nature of some of the business start-up costs and to reduce other expenses that he found to be unreasonable. After recalculating her expenses, the court found that her income exceeded her expenses and that, based on Kintner-Dee’s current circumstances, she did not demonstrate the need for spousal maintenance.
Kintner-Dee points to the
instability of the personal-coaching profession as a basis of her need for
maintenance. While Kintner-Dee may not be
able to sustain this level of employment because of the long hours necessary to
earn her current income, the court properly evaluated her current income to
determine need. See Nardini v. Nardini,
414 N.W.2d 184, 197 (
The district court has discretion in reserving jurisdiction of the issue of maintenance. Minn. Stat. § 518.55, subd. 1 (2004). Reservation is appropriate when uncertainty exists on either party’s ability to be self-sufficient. Wopata v. Wopata, 498 N.W.2d 478, 485-86 (Minn. App. 1993); Van De Loo v. Van De Loo, 346 N.W.2d 173, 178 (Minn. App. 1984). Kintner-Dee argues that the district court erred by reserving jurisdiction of spousal maintenance for Dee when he did not seek maintenance in any responsive pleading or indicate that he was intending to raise the issue of spousal maintenance or a reservation of spousal maintenance in the contested hearing. We agree.
The issue of reserving spousal
maintenance for Dee first arose in response to a question by
The district court shall
grant attorneys’ fees when necessary for the good-faith assertion of a party’s
rights if the party seeking fees does not have the ability to pay them, and the
party from whom fees are sought is capable of paying the fees. Minn. Stat. § 518.14, subd. 1 (2004). Additionally, the court may order attorneys’
fees when a party unreasonably contributes to the length or expense of the
The district court found
The record supports the district court’s factual findings on comparable income, expenses, and attorneys’ fees. We reject Kintner-Dee’s contention that conduct-based attorneys’ fees are appropriate; the record is devoid of any evidence of bad conduct that would warrant attorneys’ fees. The district court did not abuse its discretion in denying attorneys’ fees.
Affirmed in part and reversed in part.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.