This opinion will be unpublished and

may not be cited except as provided by

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






In re the Marriage of:


Jan Dean McAlister, petitioner,





Karen Cynthia McAlister,



Filed December 6, 2005

Reversed and remanded

Gordon W. Shumaker, Judge


Anoka County District Court

File No. F6-98-6996




John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, P.L.L.P., 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)


Beverly K. Dodge, William Segal, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Blvd., Minneapolis, MN 55433 (for respondent)


            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.


U N P U B L I S H E D   O P I N I O N


On appeal in this maintenance modification dispute, husband challenges the district court’s grant of wife’s motion to extend her award of temporary spousal maintenance, and wife challenges the denial of her motion to make her maintenance award permanent.  We reverse and remand because we conclude that the district court (1) did not apply the relevant caselaw governing spousal maintenance, and (2) erroneously concluded that it did not have authority to award permanent maintenance. 


By judgment entered November 22, 1999, appellant-husband Jan Dean McAlister and respondent-wife Karen Cynthia McAlister dissolved their 24-year marriage.  The parties stipulated to the disposition of their property and to health and dental insurance coverage for their children.  It appears that the remaining issues were submitted to the district court for determination.

The court awarded physical custody of the parties’ three minor children to wife, set the husband’s child support obligation, and ordered “temporary spousal maintenance” in the sum of $250 each month for five years beginning December 1, 1999.

In awarding temporary spousal maintenance, the court found that wife is a high-school graduate who worked as a nurse assistant before the birth of the parties’ first child; that, at the time of the dissolution, she worked 20 to 24 hours a week for a wage of $8 an hour; that she was capable of working 40 hours a week; that her net monthly income, based on 40 hours a week, was $1,027.59; and that her reasonable monthly expenses were $2,650.11.  The court found that husband’s net monthly income was $2,321.06 and his expenses were $1,721.50.

As to the likelihood that wife would become self-supporting, the court found: “The respondent [wife] is only nominally employed, and while she testified that she would like to seek higher paying employment, she testified that she has no plans to obtain further education or training, and it is apparent that she is not likely to become fully self-supporting.”

On October 27, 2004, about a month before the expiration of the period of temporary maintenance, wife moved for an amendment of the judgment so as to provide for permanent spousal maintenance or, in the alternative, an extension of the maintenance period to the spring of 2006, when the parties’ youngest child is expected to graduate from high school.

At the time of the motion, wife had a net monthly income of $2,003, which consisted of $1,200 from her full-time job, $524 in child support, and $279 in maintenance.  Her reasonable monthly expenses were $2,051.50.  Thus, she had a monthly shortfall of $48.50.

Husband’s net monthly income had increased 39.7% since the original judgment, from $2,321 to $3,243, and his monthly expenses were $3,282.

The court granted wife’s alternative motion to modify the temporary maintenance by extending husband’s obligation until June 15, 2007, stating: “This would give Respondent [wife] adequate time to either retrain and become employed in the health-care field, or obtain skills needed by her current employer that would hopefully lead to increased responsibilities and take-home pay.”  As to wife’s motion to make the maintenance award permanent, the court stated: “ . . . [T]he Court does not know if it has authority to order permanent maintenance with this record.  The original Court did not do that and the order was not appealed.  Therefore, that principle may be final.”

Contending that the district court abused its discretion in ordering a modification of spousal maintenance, husband appealed.  Wife filed a notice of review as to the court’s implicit denial of her motion for a modified award of permanent spousal maintenance.


            The district court has broad discretion over issues of spousal maintenance, and its decisions will not be reversed absent a clear abuse of that discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A court abuses its discretion if it makes findings unsupported by the evidence or improperly applies the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  The appellate court must conclude that the district court abused its discretion if it resolved the question in a manner that is against logic and the record.  Rutten, 347 N.W.2d at 50.

Modification of Maintenance

A party seeking the modification of a spousal maintenance award must show (1) that there has been a substantial change in circumstances since the original or previous award and (2) that change has made the existing award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2004); Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).

By statute, a party may satisfy the burden of demonstrating a substantial change in circumstances sufficient to justify a modification of a spousal maintenance award by proving (1) a substantial increase or decrease in a party’s earnings; (2) a substantial increase or decrease in a party’s needs; (3) the receipt of public assistance by a party; or (4) a change in a party’s cost of living, “any of which makes [the existing award] unreasonable and unfair . . . .”  Minn. Stat. § 518.64, subd. 2(a).

Caselaw provides an additional basis for modification of a maintenance award when there has been no showing of any of the statutory bases provided in section 518.64, subd. 2(a).  In Karg v. Karg, 418 N.W.2d 198, 201-02 (Minn. App. 1988), the district court granted an award of permanent maintenance, after the original judgment had awarded temporary maintenance, even though there had been no showing of a substantial change of circumstances as provided in the statute.  The only change in circumstances, as noted by the court of appeals, was the realization that the recipient of the maintenance would be unable to become self-supporting. 202.  That fact rendered the original award of temporary maintenance unfair.  Id. The court of appeals also noted the pronouncement in Nardini v. Nardini, 414 N.W.2d 184, 198-99 (Minn. 1987), regarding the expectation that a recipient of temporary maintenance will become self-supporting and the unfairness of temporary maintenance if the expectation is not realized: “An award of temporary maintenance is based on the assumption that the party receiving the award not only should strive to obtain suitable employment and become self-supporting but that he or she will attain that goal.”  Id. 

Faced with the question of whether section 518.64 applied at all when the issue was that of extending temporary maintenance to become permanent, the court of appeals in Katter v. Katter, 457 N.W.2d 750, 753 (Minn. App. 1990), crystallized the caselaw rule of changed circumstances, stating that “ . . . the failure of a spouse to become fully rehabilitated while receiving temporary maintenance is, in itself, a changed circumstance under [section 518.64].”  Other cases are in accord.  See Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (holding that the frustration of the expectation of eventual self-sufficiency was within the court’s discretion as demonstrating a substantial change that has effect of rendering original award unreasonable and unfair); Gessner v. Gessner, 487 N.W.2d 921, 924 (Minn. App. 1992) (adopting the Katter rule); Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992) (quoting Katter, 457 N.W.2d at 753), review denied (Minn. Mar. 19, 1992).

In its conclusions of law, the district court purported to apply Minn. Stat. § 518.64 and Minn. Stat. § 518.552, stating: “While it might seem that Respondent [wife] is slightly better off since the Judgment and Decree, she still does not have the ability to totally support herself, especially once the child support ends.”  Therefore, the court concluded, “ . . .  an award of  maintenance is appropriate.”

In a memorandum incorporated into its order, the court stated that “there does not appear to be a substantial change in circumstances since the original dissolution,” and “[t]he economic circumstances that justified the original award of maintenance are quite similar to those at the present time.”  The court then invoked its “equitable powers” and ordered “more temporary maintenance payments until approximately the year after the emancipation of the child living with the Respondent [wife].”

            Absent from the court’s determination is any finding or conclusion that the change of circumstances cited as a basis for the modification of the maintenance award has made the existing award unreasonable or unfair.  Rather, the court concluded only that an extension of maintenance is “appropriate.”  Whether applying one of the bases in Minn. Stat. § 518.64, subd. 2(a), or the caselaw basis clarified in Katter, the district court must address the issue of whether the situation before it at the time of the modification motion does or does not render the existing award unreasonable and unfair.  A failure to do so is a failure to apply the law and is an abuse of discretion.  See Dobrin v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn. 1997) (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) for the proposition that a district court abuses its discretion if it makes findings unsupported by the record or misapplies the law, and stating that this language “is equally appropriate in this [maintenance] proceeding”). 

Husband argues that the original maintenance award was not for “rehabilitative” maintenance and, therefore, Katter does not apply.  If Katter does not apply, husband contends, we are left with only the statutory bases and the court expressly determined that there was no change of circumstances under any of those bases.

We reject the notion that there is a distinction between temporary maintenance and rehabilitative temporary maintenance.  Reaching back at least as far as Nardini, the courts have operated on the premise that “[a]n award of temporary maintenance is based on the assumption that the party receiving the award not only should strive to obtain suitable employment and become self-supporting but that he or she will attain that goal.”  Nardini, 414 N.W.2d at 198.  Whether or not labeled as such, temporary spousal maintenance is awarded to assist the recipient in becoming self-supporting through some sort of “rehabilitation.”  Husband has pointed to no authority that holds otherwise.

Permanent Maintenance

            Wife moved for an award of permanent maintenance.  The district court did not expressly rule on that motion but rather concluded that it had no authority to address the issue.  This was an error of law and an abuse of discretion.  In Katter, the court of appeals held that it was within the district court’s discretion to modify an award of temporary maintenance by extending it permanently as long as there exists a proper legal and factual basis for the extension.  Katter, 457 N.W.2d at 754.  Because wife has filed a notice of review of this issue, it is appropriate that we address it.

            We hold only that the district court has the authority to determine whether or not an award of permanent maintenance is justified, and we do not intend by this opinion to suggest the result the district court should reach.


            Because the district court abused its discretion in failing to apply the second prong of Minn. Stat. § 518.64, subd. 2(a), regarding the effect of the change of circumstances on the fairness of the existing award, and because the district court abused its discretion in declining to address wife’s motion for permanent maintenance, this matter must be reversed and remanded for further proceedings consistent with this opinion.  Whether to reopen the record on remand shall be discretionary with the district court.

            Reversed and remanded.