This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
David W. Ganyo, petitioner,
Emily Jane Engen,
Filed December 6, 2005
Ramsey County District Court
File No. FX-86-22595
Thomas W. Tuft, Valerie Downing Arnold, Tuft & Arnold, PLLC, 2109 County Road D East, Maplewood, MN 55109 (for appellant)
Marilyn J. Michales, Lisa M. Meier, Honsa & Michales, P.A., 5500 Wayzata Boulevard, Suite 1075, Minneapolis, MN 55416 (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
Appellant David W. Ganyo challenges the district court’s orders denying appellant’s motions to terminate or reduce spousal maintenance, to reopen the hearing, and to amend the findings. Appellant contends that the district court erred by: (1) failing to find a substantial change in circumstances justifying maintenance modification; (2) failing to terminate his obligation to maintain a life insurance policy as security for maintenance; (3) awarding respondent attorney fees and costs; (4) classifying appellant’s request for amended findings as a motion for reconsideration; and (5) denying appellant’s motion to reopen the record. Respondent contends that the district court erred by allowing a reduction of appellant’s life insurance obligation and seeks attorney fees for this appeal. We affirm.
D E C I S I O N
The determination of spousal maintenance is within the
district court’s broad discretion. Stich v. Stich, 435 N.W.2d 52, 53 (
Appellant argues that the district court clearly erred in finding certain facts, and, therefore, abused its discretion when it denied appellant’s motion to terminate or reduce his spousal maintenance obligation. We disagree.
1. Fact findings
Appellant claims that the court erred in finding that he failed to explain how he spent funds withdrawn from his deferred compensation plan (DCP). But the record supports the district court’s finding that appellant did not demonstrate how he had depleted those funds. Appellant claimed that he spent his DCP proceeds on “living expenses, medical bills, legal fees, and taxes on the deferred compensation funds.” But beyond that general statement, appellant failed to provide any documented proof as to how the funds were spent. Based on that sparse record, the district court’s finding that appellant failed to prove where he spent those funds was not clearly erroneous.
Appellant claims the district court erred in finding that he failed to explain why he no longer receives $16,608 in interest income. He asserts that “[t]here is no evidence in the record to support a finding that Appellant ever earned $16,608 in interest income.” But appellant’s 2001 federal income tax return, which was filed jointly with his current wife, reports interest income of $16,608. The record contains no documented explanation as to why that income is no longer available to appellant. As such, the district court’s finding that appellant failed to explain why he was no longer receiving the $16,608 is not clearly erroneous.
Appellant also challenges the district court’s findings as to respondent’s monthly income and expenses. The court found that respondent’s monthly living expenses were over $4,000 with net monthly income of $922.33. Those amounts were supported by a pay stub and expense schedules in the record.
At the time of the
district court’s proceedings, respondent was 62 years old. At age 62, respondent was eligible to receive
social security benefits, but she chose to wait until she reached the full-time
retirement age of 65 to receive them.
Appellant urged the district court to impute respondent’s potential
social security benefits to her as income.
The court declined to do so, reasoning that “[w]orking until 65 will
give respondent the ability to collect a greater amount of social security and
be better able to provide for her necessary expenses, without the income
offsets which earlier withdrawal entails.”
The record supports the district court’s decision. Appellant claims that the district court applied a “double
standard” when it imputed social security income to him in a decision in 2000
but did not impute respondent’s potential social security benefits to
respondent here. But the district
court’s earlier determination, which was affirmed by this court on direct
appeal in 2001, is not properly before us now.
reject appellant’s claim that the district court clearly erred by accepting
respondent’s expenses while disregarding appellant’s expenses. Appellant cites Laumann v. Laumann, 400 N.W.2d 355 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987), as
support for that proposition. But Laumann is distinguishable from the case
here. In Laumann, the trial court reduced the wife’s claimed expenses by
over 40% while accepting the husband’s expenses “in toto.”
We conclude that the evidence supports the district court’s findings as to respondent’s monthly income and expenses and the court provided sufficient reason to exclude respondent’s potential social security benefits from her income. Therefore, the district court’s findings as to respondent’s monthly income and expenses were not clearly erroneous.
2. Substantial change in circumstances
(1)substantially increased or decreased earnings of a party;
(2)substantially increased or decreased need of a party or the child or children that are the subject of these proceedings;
(3)receipt of assistance under the AFDC program . . . ;
(4)a change in the cost of living for either party as measured by the Federal Bureau of Statistics . . . ;
(5)extraordinary medical expenses of the child . . . ; or
(6)the addition of work-related or education-related child care expenses of the obligee or a substantial increase or decrease in existing work-related or education-related child care expenses.
Minn. Stat. § 518.64, subd. 2(a) (2004). “[T]he essential consideration [in awarding
maintenance] is the financial need of the spouse receiving maintenance, and the
ability to meet that need, balanced against the financial condition of the
spouse providing the maintenance.” Novick
v. Novick, 366 N.W.2d 330, 334 (
A party seeking modification
must demonstrate first that “there has occurred a substantial change in one or
more of the circumstances identified in the statute and second, . . . that the
substantial change has the effect of rendering the original award unreasonable
and unfair.” Hecker v. Hecker,
568 N.W.2d 705, 709 (
Appellant contends that respondent’s financial resources increased while appellant’s income decreased due to his poor health and depletion of his DCP funds. Therefore, appellant argues that he established a substantial change in circumstances and the district court erred by finding he failed to carry that burden. We disagree.
The district court made specific findings regarding appellant’s failure to credibly explain the disappearance of resources that were once available to him. Where a moving party “fail[s] to present a complete picture of his assets and debts,” a trial court may be justified in refusing to modify the decree. Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987). The court also made findings as to respondent’s income and expenses, explaining why it was not including her potential social security income in its calculations.
Appellant also argues that the district court
failed to consider all of the statutory factors for maintenance modification. But the district court is not required to
make specific findings on every
statutory factor if the findings that were made
reflect that the district court adequately considered the relevant statutory
factors. Rosenfeld v. Rosenfeld, 311
We conclude that there was sufficient evidence in the record supporting the district court’s conclusion that appellant failed to meet his burden of showing a substantial change in circumstances. The district court did not abuse its discretion in denying appellant’s motion to reduce or terminate spousal maintenance.
The parties’ original dissolution judgment, which provided for temporary maintenance, required appellant to maintain a life insurance policy with $50,000 coverage naming respondent as beneficiary “so long as he has an obligation to provide maintenance.” When the order was modified to require permanent maintenance, the life insurance requirement was not changed. In the order on appeal, the district court granted in part appellant’s motion to terminate his life insurance obligation, allowing him to reduce the coverage amount “never to be less than the total of what petitioner will owe between the present and the date upon which respondent reaches age 65.”
Both parties challenge the district court’s order regarding life insurance. Appellant argues that the district court erred by not terminating his obligation to provide life insurance to secure the spousal maintenance. And respondent argues that appellant’s life insurance obligation should continue at the previous $50,000 coverage level.
A trial court “has
discretion to consider whether the circumstances justifying an award of
maintenance also justify securing it with life insurance.” Laumann
v. Laumann, 400 N.W.2d 355, 360 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). “The decision whether to require
security and how much under the circumstances, lies within the broad discretion
of the trial court.” Head v. Metropolitan Life Ins. Co., 449 N.W.2d
449, 453 (
Applying the Arundel factors here, we conclude that the district court did not abuse its discretion in continuing appellant’s life insurance obligation. The spousal maintenance award is permanent. The parties were married for approximately 27 years. Respondent was 62 years old at the time of the district court’s order. She has a high-school education and has worked as a retail salesperson since 1969. Due to a brain hemorrhage in 1996, respondent is limited to working part time.
And neither party provided persuasive legal or factual support as to why the level of security in the district court’s order was inappropriate. Appellant contends that he is unable to afford life insurance, but he provides no proof or documentation to support that contention. Respondent insists that the $50,000 coverage level be reinstated. But when asked by the district court to provide legal support for requiring the district court to continue life insurance on maintenance beyond the parties’ retirements, respondent only cites Arundel. And Arundel is distinguishable because the obligee in Arundel was not employed and the district court had terminated the life insurance obligation when the obligee reached age 60. Id. at 666-67. On appeal, respondent fails to provide any legal support or explain based on the parties’ financial situations why the reduced coverage as ordered will not reasonably secure the maintenance payments.
Both the decision to require security for life insurance and the amount of that security are within the district court’s discretion. Under these facts, we cannot say that the district court abused its discretion in maintaining appellant’s life insurance obligation at a reduced coverage amount.
Appellant argues that the district court erred by awarding respondent $4,398.20 in need-based and conduct-based attorney fees. We disagree. An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2004), “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).
An award of attorney fees is appropriate when “necessary to enable a party to carry on or contest the proceeding.” Minn. Stat. § 518.14, subd. 1. A court shall award need-based attorney fees to a party if it finds:
(1)that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2)that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
(3)that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.
In awarding fees, the
district court “must indicate to what extent the award [is] based on need or conduct
or both” and, if based on conduct, what conduct justified the award. Geske
v. Marcolina, 624 N.W.2d 813, 816, 819 (
Here, the district court awarded need-based and conduct-based attorney fees, reasoning that appellant’s failure to completely respond to discovery contributed to the length and expense of the proceedings. Appellant argues that the district court erred by granting respondent attorney fees because the record does not indicate that appellant can afford to pay the fees and because appellant did not contribute unnecessarily to the length and expense of the proceedings.
The district court did not make specific findings as to appellant’s income, because, as was discussed above, appellant failed to provide sufficient information regarding his resources. In addition, the record supports the district court’s conclusion that appellant has unreasonably contributed to the length and expense of the proceedings. We conclude that the district court did not abuse its wide discretion in awarding respondent legal fees.
argues that the district court erred by classifying appellant’s request for
amended findings as a motion for reconsideration. We disagree.
purpose of a motion for amended findings is to permit the trial court a review
of its own exercise of discretion.” Lewis v. Lewis, 572 N.W.2d 313, 315
(Minn. App. 1997) (quotations omitted), review
denied (Minn. Feb. 19, 1998). A proper motion for
amended findings must explicitly identify the alleged defects and explain why
the challenged findings are defective.
Where a motion
for amended findings does not make any new legal or factual arguments, so that
it does no more than reargue a prior motion, it is really a motion for
reconsideration. See Carter v.
Motions to reconsider are prohibited except by express permission of the court, which will be granted only upon a showing of compelling circumstances. Requests to make such a motion, and any responses to such requests, shall be made only by letter to the court of no more than two pages in length, a copy of which must be sent to opposing counsel.
Minn. Gen. R. Pract. 115.11.
In its July order, the district court found, inter alia, that “[n]o explanation is given by petitioner as to why the $16,608 in interest was no longer being paid” and “[n]either has petitioner explained how it was that his deferred income was spent.” Appellant made a motion to amend the court’s findings. The district court denied that motion in its December 2004 order, finding that “[t]o the extent that petitioner seeks a review of those determinations contained in the findings of fact, etc., he seeks a motion for reconsideration, for which no authorization was sought or granted.”
First, we conclude that appellant’s motion to amend the findings did not meet the requirements for such a motion under Lewis. Appellant’s motion suggested changes in the district court’s findings but did not explicitly identify defects or explain why the challenged findings were defective. Appellant’s suggested changes merely restated the arguments made to, and rejected by, the district court, namely that appellant never had $16,608 in interest income and that he had spent his DCF funds on living expenses, medical bills, and legal fees.
Second, because appellant’s motion to amend merely reargued its original arguments before the district court, the district court properly characterized it as a motion for reconsideration. Under Minn. Gen. R. Pract. 115.11, a movant must request the motion by letter to the district court. Because the record indicates that appellant never sent a letter to the court requesting reconsideration, his motion for reconsideration was procedurally barred under rule 115.11. The district court correctly stated that “no authorization was sought or granted” for the reconsideration. We conclude that the district court did not err in denying appellant’s motion for amended findings because that motion was actually a procedurally barred motion for reconsideration.
claims that the district court erred by denying appellant’s motion to reopen
the record. We disagree. A district court’s decision regarding whether
to reopen a judgment will be upheld unless the court abused its
discretion. Harding v. Harding, 620 N.W.2d
920, 922 (Minn. App. 2001), review denied (
A court may reopen the record and relieve a party from an order or grant other relief where it finds “fraud, whether denominated intrinsic or extrinsic, misrepresentation, or other misconduct of an adverse party.” Minn. Stat. § 518.145, subd. 2(3) (2004). Where a motion to reopen a dissolution judgment is made within one year after the entry of the judgment, the legal standard to be applied is ordinary fraud, not fraud on the court. Doering v. Doering, 629 N.W.2d 124, 130 (Minn. App. 2001), review denied (Minn. Sept. 11, 2001). Under the ordinary fraud standard, “failure of a party to a dissolution to make a full and complete disclosure constitutes sufficient reason to reopen the dissolution judgment.” Id. at 129.
month after the district court denied appellant’s motion to terminate or modify
spousal maintenance, appellant moved to reconsider respondent’s financial need
in light of her ownership interest in a
the district court’s finding of a lack of fraud in its earlier judgment was not
clearly erroneous. The record indicates
that respondent owns a one-third interest in a
Finally, respondent seeks attorney fees on appeal. But a motion for attorney fees must be made in a separate motion to this court and respondent has not made such a motion here. See Minn. R. Civ. App. P. 139.06, subd. 1. Because no motion was filed, respondent’s request for fees on appeal is not properly before this court.
 Appellant’s supplemental affidavit contained
a schedule of where he spent his DCP funds.
But because the affidavit was filed in August 2004, it was not part of
the record for the district court’s July 2004 decision. Rathbun
v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (stating
that when a trial court considers a motion for amended findings, “[i]t may
neither go outside the record, nor consider new evidence”). Therefore, this court may not consider that
affidavit in its review of the July decision’s fact findings. “[A]n appellate court may not base its
decision on matters outside the record on appeal, and . . . matters not
produced and received in evidence below may not be considered.” Plowman
v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (
 Although Lewis was overruled as it pertained to the tolling effects of a motion for amended findings, this court has expressly stated that district courts “should . . . continue to use Lewis to determine whether a motion for amended findings has the necessary components.” State by Fort Snelling State Park Ass’n v. Minneapolis Park & Recreation Bd., 673 N.W.2d 169, 178 n.1 (Minn. App. 2003).