This opinion will be unpublished and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
Margaret Jane Faber,
f/k/a Margaret Jane Cole, petitioner,
Wendell John Cole,
Filed April 18, 2006
Reversed and remanded
Dakota County District Court
File No. F7-95-15365
Margaret Jane Faber,
John T. Burns, Jr., Burns Law Office, 115 Midway Bank
Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.
In this post-dissolution proceeding, appellant challenges the district court order and judgment reducing his spousal maintenance from $547 to $400 per month, arguing that the district court failed to consider all of the statutory factors and to make the necessary findings of fact to support the modification, and that his maintenance obligation should be further reduced or eliminated. Because the district court failed to adequately consider all of the statutory factors and make the appropriate findings of fact to support the reduction in spousal maintenance, we reverse and remand.
John Cole and respondent Margaret Jane Faber were married for 25 years until
their marriage was dissolved by judgment and decree in October 1996. Appellant is 56 years old, has a Bachelor of
Science degree from the
to the divorce decree, appellant was ordered to pay permanent spousal
maintenance in the amount of $450 per month as well as child support. At that time, appellant was employed by Harmon
and had a net monthly income of $2,005.37.
Respondent was employed part-time at the
In April 2005, appellant moved to modify his spousal-maintenance obligation, requesting that the district court eliminate his obligation, which had increased with cost-of-living adjustments to $547 per month. By this time, appellant no longer paid child support because the parties’ children had reached the age of majority. Appellant submitted an affidavit, which stated that his income was relatively unchanged from the time of the divorce, that his hourly wage had a modest increase from $16.36 to $16.50 per hour in 2003, and that he was laid off from work in November 2004. Respondent opposed the motion, and submitted an affidavit stating that her taxable gross income for 2004 was less than $11,000 due to a temporary lapse in employment; and that appellant’s maintenance payments had been in arrears since November 2004.
Following a hearing, the district court ordered a reduction in appellant’s spousal-maintenance obligation to $400 per month commencing June 1, 2005, and that appellant satisfy his past-due maintenance obligation. In its memorandum, the district court noted that (1) appellant had lost his job and had taken another job for $11.50 per hour; (2) appellant “claims” that his monthly living expenses totaled $2,698.93; (3) appellant was receiving unemployment benefits of $350 per week which was more than respondent was earning; (4) appellant lives with his girlfriend, but did not reveal her income or her contribution to their living expenses; and (5) respondent “claims” that her 2004 taxable gross income was less than $11,000. The district court concluded that respondent had a need for continued maintenance.
Appellant sought to reconsider the district court’s modification award, claiming that the court (1) improperly weighed the relative financial need of respondent by relying on her temporary lapse in employment; and (2) failed to make necessary findings, including those regarding the parties’ income and reasonable monthly expenses. The district court denied appellant’s request to reconsider the modification award. This appeal follows.
D E C I S I O N
Appellant contends that the district court abused its discretion in its determination of the amount of the spousal maintenance. Respondent requests that we affirm the district court’s order reducing the amount of spousal maintenance to $400 per month.
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 (
seeking 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 (
Respondent argues that the
reduced amount of spousal maintenance determined by the district court should
be affirmed and, therefore, necessarily agrees that there has been a
“substantial change in circumstances” since the original award and that such
change renders the award unfair and unreasonable. Thus, the requirements of Minn. Stat. § 518.64,
subd. 2, have been satisfied. Also,
respondent did not file a notice of review challenging the decision of the
district court that there had been a substantial change in circumstances
rendering the existing maintenance award unreasonable and unfair. Thus, respondent has waived the right to
argue that the district court erred in reducing the amount of spousal
maintenance to $400 per month.
Consequently, the statute
required that the district court apply the factors set forth in
Here, the district court failed to consider the statutory factors set forth in Minn. Stat. § 518.552, subd. 2. See, e.g., Moylan, 384 N.W.2d at 865 (remanding where, as here, it is unclear whether the trial court considered factors expressly mandated by the legislature). Accordingly, we remand to the district court for consideration of the factors set forth in Minn. Stat. § 518.552.
further contends that the district court failed to make findings of fact, and
that the case should be remanded to determine the amount of spousal
maintenance. “Findings of fact concerning spousal maintenance must be upheld unless they
are clearly erroneous.” Gessner v.
Gessner, 487 N.W.2d 921, 923 (
Here, the district court failed to make
findings concerning the factors set forth in Minn. Stat. § 518.552. Without adequate findings regarding the
parties’ net incomes and reasonable expenses, effective appellate review is
impossible. See Stich v. Stich, 435 N.W.2d 52, 53 (
Specifically, the district court made findings regarding appellant’s hourly wage, but not the number of hours per week he worked or his annual income. And the district court prefaced its statements regarding appellant’s cost of living and respondent’s income with “he claims” and “petitioner claims.” By doing so, the district court is not making true findings but merely reciting the parties’ claims. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (“Reciting the parties’ claims may be helpful in understanding what the district court considered in making its findings; however, the findings themselves must be affirmatively stated as findings of the [district] court.”)
The district court also found that appellant lives with his significant other but did not analyze the amount of appellant’s expenses that were attributable to her. The obligor’s ability to pay, including expenses, must be attributable to the obligor himself, not another adult. See Musielewicz v. Musielewicz, 400 N.W.2d 100, 103 (Minn. App. 1987) (including expenses for adult children of obligor is reversible error), review denied (Mar. 25, 1987); see also Peterka v. Peterka, 675 N.W.2d 353, 358–59 (Minn. App. 2004) (finding that consideration of expenses associated with an obligor’s new family when setting amount of maintenance award was appropriate). On this record, we are unable to determine whether appellant’s expenses included expenses attributable to his significant other.
Appellant next argues that the district court erroneously determined respondent’s income based on her 2004 salary of $11,000 rather than her ability to contribute to her own support as measured by her full-time employment capacity. Here, the district court determined that respondent’s income for 2004 was $11,000, but did not determine whether that was an appropriate amount to use for her yearly income.
Consequently, we conclude that the district court abused its discretion by not evaluating the factors under Minn. Stat. § 518.552, and by failing to make necessary findings of fact and conclusions of law to determine the proper amount of spousal maintenance, we remand for further proceedings consistent with this opinion. The district court may reopen the record to conduct an evidentiary hearing but is not required to do so.
Reversed and remanded.
The district court is not necessarily required to make explicit findings on all
statutory maintenance factors if certain factors are not at issue or otherwise
not before the district court for decision. Justis,
384 N.W.2d at 891; see Roberson v.