This opinion will be unpublished and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
Norman Leppala, petitioner,
Nanette Leppala, n/k/a Nanette Beckman,
Filed July 19, 2005
St. Louis County District Court
File No. F1-98-102094
Andrew J. Phillips, Phillips Law Office, Ltd.,
Patrick J. Roche, Paul D. Cerkvenik, Trenti Law Firm, 225 First Street North, Suite 1000, P.O. Box 958, Virginia, MN 55792 (for respondent)
Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
In this post-dissolution proceeding, appellant challenges the district court’s denial of his motion for spousal maintenance. Because the district court did not abuse its discretion when it denied the motion and awarded respondent $1,000 in attorney fees, we affirm.
In 1998, after 40 years of marriage, appellant Norman Leppala commenced a dissolution proceeding against respondent Nanette Leppala. At the time of the dissolution, appellant was retired and received his primary source of income from three pensions. Respondent was a homemaker and worked part-time as a caterer. The parties’ monthly expenses were similar: Appellant claimed $1,400, which included a $400 mortgage payment, and respondent claimed $1,500. The district court divided the parties’ property, which consisted of the homestead (awarded to appellant after he reimbursed respondent for her equity), the three pensions (values split approximately equally between the parties), appellant’s $50,000 life-insurance policy (awarded to respondent), and various bank accounts, but reserved the issue of spousal maintenance.
than five years after the initial dissolution, appellant moved for an award of
spousal maintenance. Appellant presented
an affidavit stating that his monthly expenses were $3,593, which included
expenses for cosmetics, entertainment, vacations, and miscellaneous items. Appellant’s affidavit contended that
respondent’s monthly income for maintenance purposes should increase because
she was eligible for Tier 1 divorced-spouse railroad-retirement benefits (Tier
1) andone-half of appellant’s social
security benefits. Since the
dissolution, appellant (1) sold the homestead, valued at $105,000, for
$200,000; (2) bought a trailer in
The district court denied appellant’s motion for spousal maintenance, finding that any increase in expenses was “voluntarily incurred” and that respondent was not eligible to collect both Tier 1 and social security benefits. The district court added that even if respondent could collect Tier 1 benefits in the amount of $462 per month, she would have a net income of $662 per month, exclusive of pension income, which did not provide her with the means to pay spousal maintenance. The district court also awarded respondent $1,000 in attorney fees. This appeal followed.
D E C I S I O N
review a district court’s maintenance award under an abuse-of-discretion
standard. Dobrin v. Dobrin, 569
N.W.2d 199, 202 (
Appellant contends that the district court applied
an incorrect standard when evaluating his claim, specifically, that he was
required to show a “substantial change in circumstances” to be awarded spousal
maintenance. A party seeking
modification of spousal maintenance must show a substantial change in
circumstances, such as a considerable increase or decrease in the earnings or
needs of a party. Minn. Stat. § 518.64,
subd. 2(a) (2004). But in this case, as
appellant observes, the district court initially reserved the issue of spousal
maintenance. When spousal maintenance is
reserved, upon a party’s subsequent request for maintenance, the district court
must make a “determination . . . based upon the facts and circumstances
existing at the time the application is made, as if the entire action had been
brought at the later date.” Harder v. Harder, 312
Minn. Stat. § 518.552, appellant is entitled to spousal maintenance only if,
taking into account marital property already apportioned, he lacks sufficient
property to provide for his reasonable needs or if he is unable to support
himself through appropriate employment.
Here, we agree
with the district court that the record does not support appellant’s request
for spousal maintenance. First, the
record does not indicate that appellant lacks sufficient property to provide
for his reasonable needs or is unable to provide adequate self-support. See Minn.
Stat. § 518.552, subd. 1. In the
original dissolution, appellant was awarded the right to purchase the parties’
homestead, as well as the right to pension proceeds and banking accounts, for a
total property award of $258,724. After
the dissolution, appellant purchased respondent’s marital equity to the
homestead for $50,000, then sold the homestead for $200,000. Additionally, appellant purchased a one-week
Appellant also submitted a monthly budget of $3,593, but after deducting his $400 mortgage payment from the sold homestead, appellant’s revised budget was $2,500 more than his budget submitted for the dissolution, and the district court found that appellant’s increased expenses were “voluntarily incurred.” See id., subd. 2(a) (providing that district court must consider financial resources of spouse seeking maintenance). We agree with the district court that the reasonableness of such an increase in expenses is not supported by the record.
the district court’s conclusion that respondent is not able to pay spousal
maintenance is supported by the record. See id., subd. 2(g) (providing that
“ability of the spouse from whom maintenance is sought to meet needs while
meeting those of the spouse seeking maintenance” is factor to consider when
awarding maintenance). Respondent
receives approximately $1,466 in monthly income, $1,266 of which is pension
income awarded to her as part of the property division in the dissolution. Because it was part of the property award, the
pension income cannot be considered for spousal maintenance purposes until
respondent withdraws an amount equivalent to its property award value
determined at the time of the decree. See Kruschel v. Kruschel, 419 N.W.2d
119, 123 (
claims that respondent will receive increased income by being eligible for Tier
1 divorced-spouse railroad-retirement or social security benefits, but as the
district court found, the additional payments would only increase respondent’s
monthly non-pension income to approximately $662, which the district court
concluded would not allow her to meet her own needs and also pay maintenance.
challenges the district court’s $1,000 award of attorney fees to respondent,
arguing that the court did not make findings on the issue and respondent did
not present evidence of incurred fees.
Minn. Stat. § 518.14, subd. 1 (2004), allows for both conduct-based and
need-based attorney fees. To award
conduct-based fees, the district court must identify the offending conduct, it
must have occurred during the litigation process, and it must have unreasonably
contributed to the length or expense of the proceeding.
the district court briefly identified appellant’s offending conduct, stating
that his motion was “without support in the law or the facts.” Second, because appellant brought a motion for
spousal maintenance, his conduct occurred during the litigation process. Third, the district court’s finding that
there were not “any facts to support [appellant’s] claim” warrants a conclusion
that the claim unreasonably contributed to the length or expense of the
proceeding. Appellant argues that there
was no finding that he acted in bad faith, but such a finding is not required
when awarding conduct-based attorney fees.
See Geske, 624 N.W.2d at 818
(“While bad faith could unnecessarily increase the length or expense of a
proceeding, it is not required for an
award of conduct-based attorney fees . . . .”).
Appellant also argues that respondent did not provide a bill stating her
attorney fees. But respondent stated in
an affidavit that her fees were more than $1,000, and because conduct-based
attorney fees are awarded in the discretion of the district court, an itemized
billing statement is unnecessary in this case.