This opinion will be unpublished and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:

Mary Jo Kleven,






Thomas Azor Kleven,



Filed March 14, 2006

Crippen, Judge


Hennepin County District Court

File No. DC 236926


Derk K. Schwieger, 7800 Metro Parkway, Suite 300, Bloomington, MN  55425 (for respondent)


Edward L. Winer, James John Vedder, Jana I. Deach, 4800 Wells Fargo Center, 90 S. Seventh Street, Minneapolis, MN  55402 (for appellant)


            Considered and decided by Minge, Presiding Judge, Toussaint, Chief Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N


            Challenging the denial of his maintenance reduction motion, appellant Thomas Kleven argues that (1) the district court erroneously read into the earlier divorce judgment an expectation for respondent Mary Jo Kleven’s present income and gave inadequate attention to “appellant’s stagnant income, which has not kept pace with inflation”; and (2) the district court failed to put appellant in the position he would have been in but for respondent’s affirmative misrepresentation of her income and employment status in 1999 posttrial proceedings.  Because the record provides adequate support for the district court’s exercise of discretion, we affirm.


            Spousal maintenance was litigated at the 1999 trial of respondent’s divorce suit.  The district court found that respondent had reasonable monthly expenses of $4,667 and that appellant had a gross annual income of approximately $160,000 and reasonable monthly living expenses of $5,343.  Finding that respondent is a high school graduate with little formal education and training, who has been out of the workforce since 1978, the court awarded respondent permanent spousal maintenance in the amount of $4,350 per month; the court denied respondent’s subsequent motion for amended findings or a new trial.

In its 1999 findings, the district court determined that because of her role as a full-time homemaker and mother, respondent’s earning capacity had been permanently diminished.  The court noted a rehabilitation counselor’s assessment that respondent was capable of employment as a medical assistant earning between $9 and $10 per hour or employment as a furniture sales associate with a salary range of $25,000 to $30,000 per year.  The court then found that it was appropriate to impute to respondent an annual wage of $5,625 because she had been offered a part-time receptionist job with this salary and “is capable of holding employment in at least a part-time status at this time.”

            In December 2004, appellant moved to modify maintenance, claiming that his monthly expenses had increased to $8,058 and that his earnings now had been reduced about $3,000 below those in 1999 as a result of recent concessions made by appellant’s union to Northwest Airlines.  Appellant also asserted that respondent was presently employed as a receptionist with gross annual earnings of $31,000.  Appellant further argued that respondent misrepresented her income and employment status in the 2000 posttrial proceedings and that this constituted a fraud on the court.

            Denying appellant’s motion, the district court found that appellant’s present income was approximately the same as it was at the time of the judgment and that respondent’s increased income was consistent with an amount contemplated by the court when the maintenance obligation was determined.  Finally, the court agreed that respondent made an “affirmative misrepresentation” in her memorandum in support of her motion for amended findings but concluded that the misrepresentations were immaterial. 



            When reviewing a district court’s decision on a motion for modification of spousal maintenance, this court may only reverse if the district court “abused its wide discretion.”  Hecker v. Hecker, 543 N.W.2d 678, 680 (Minn. App. 1996) (quotation omitted), aff’d, 568 N.W.2d 705 (Minn. 1997).  A district court abuses its discretion when 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). 

            A spousal maintenance reduction is permitted on proof of substantial changes in need or ability to pay that make the prior terms “unreasonable and unfair.”  Minn. Stat. § 518.64, subd. 2(a) (2004).  The district court should exercise its discretion to modify “with great caution and only upon clear proof of facts showing that the circumstances of the parties are markedly different from those in which they were when the decree was rendered.”  Rubenstein v. Rubenstein, 295 Minn. 29, 32, 202 N.W.2d 662, 664 (1972).

            Appellant contends that his current maintenance obligation is unfair because respondent’s income increased by $25,000 over the amount imputed to her in 1999, she has managed to save more than $110,000 since the divorce, and appellant’s purchasing power has decreased as he has experienced “stagnant” income, 14% inflation, and a 9% cost-of-living increase in his maintenance obligation.

            Although the district court assumed that respondent would continue earning her $31,000 annual salary in spite of her current knee problem, the court found that these earnings were contemplated in the divorce judgment.  The court noted that respondent has the same housing expense as in 1999 and that that there have been no other substantial decreases in her financial needs.  Based on these findings, the court further found that respondent “is earning about what the court that awarded her maintenance expected her to earn and all that has changed in her lifestyle is that she has allowed her adult son to live with her for a time.”  In these circumstances, the court found, it could not “conclude that this constitutes the kind of change of circumstances that would render the original maintenance amount unreasonable and unfair.”

            Appellant argues that although the judgment finds evidence that respondent had a $25,000-$30,000 earning capacity, the court later imputed annual income of only $5,625 when it established appellant’s maintenance obligation.  Consequently, appellant argues that the district court erred when finding that the original award contemplated respondent’s larger income.  But this argument is speculative in circumstances where the judgment openly recited respondent’s earning capacity and positively elected to award permanent maintenance. 

            Finally, the record reflects that appellant’s ability to pay the spousal maintenance award is not substantially reduced.  The record reflects that since the divorce, appellant and his new wife have vacationed frequently and enjoy a very comfortable lifestyle.  When asked how his lifestyle has been hampered by his maintenance obligation, appellant replied, “I would have a toy or two, like I would love to have a boat.  A lot of pilots have airplanes and boats.  They have vacation homes.”  And the record reflects that appellant, whose income was only recently reduced, has also saved more than $100,000 since the divorce.

            On this record, taking into account the district court’s wide discretion on appellant’s motion and the great caution and clear cause demanded of the district court before making the requested modification, it is not evident as a matter of law that appellant’s maintenance obligation is now unfair.    


            Appellant argues that he is entitled to reopening of the judgment in light of respondent’s 2000 misstatement of facts and that the district court abused its discretion when determining that these representations were immaterial.  The court’s decision not to reopen a judgment “will not be disturbed absent an abuse of discretion.”  Harding v. Harding, 620 N.W.2d 920, 922 (Minn. App. 2001), review denied (Minn. Apr. 17, 2001).  Unless they are clearly erroneous, this court must affirm the district court’s findings of fact on the question of whether or not the judgment was prompted by fraud, duress, or mistake.  Hestekin v. Hestekin, 587 N.W.2d 308, 310 (Minn. App. 1998) (citing Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996)).

            When the alleged fraud took place more than one year after judgment was entered, the moving party must prove fraud on the court.  See Doering v. Doering, 629 N.W.2d 124, 129-30 (Minn. App. 2001) (limiting motion to reopen judgment for fraud to one year after judgment was entered unless motion is to set aside judgment for fraud on the court), review denied (Minn. Sept. 11, 2001).  Fraud on the court is “an intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and opposing [party] and making the property settlement grossly unfair.”  Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).

            Appellant argues that respondent committed fraud on the court on the following two separate occasions:  (1) respondent failed to notify appellant or the trial court of her new employment (a part-time position with annual benefits about $4,000 higher than the amount imputed in the judgment) prior to entry of the judgment and decree; and (2) in her pleadings for her motion for amended findings or new trial respondent affirmatively misrepresented that she was not employed.

            The record reflects that respondent obtained a part-time job after the trial but two weeks before the judgment was issued.  Appellant contends that her failure to disclose this information was a material misrepresentation because the maintenance award was based on imputation of less income than would be earned in this job.  Because the district court did not err in attributing to the judgment the expectation of appellant’s full-time employment, and because the new job resembled the employment imputed to respondent, the district court did not abuse its discretion in determining that this failure to report had little material affect on the judgment.  It did not involve the deliberate and gross distortion of facts that constitute a fraud on the court.  See Adams v. Adams, 393 N.W.2d 508, 510 (Minn. App. 1986) (stating that husband’s nondisclosure of numerous stock holdings and dividend income totaling more than $33,000 was not fraud upon the court), review denied (Minn. Nov. 19, 1986).

            The record reflects that respondent’s misstatement of her employment status in a posttrial motion was due to a mistake made by the attorney who replaced respondent’s trial attorney, who had moved from Minnesota after the divorce trial.  And, as we have held, the evidence does not require a conclusion that the statement was material to the original maintenance award.  Because of these factors and because the posttrial proceedings did not involve a request to lower the maintenance amount, the court did not abuse its discretion in viewing the mistake as immaterial.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.