This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1129

 

In re the Marriage of: Louis Frillman, petitioner,
Appellant,

vs.

Ann Frillman,
Respondent.

 

Filed May 2, 2006

Affirmed; motions denied

Minge, Judge

 

Dakota County District Court

File No. F5-92-137

 

 

M. Sue Wilson, Trina R. Chernos, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for appellant)

 

John M. Jerabek, Jade K. Johnson, Niemi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402 (for respondent)

 

††††††††††† 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

MINGE, Judge

††††††††††† Appellant challenges the district courtís denial of his motion to terminate maintenance.† We conclude that the district courtís determination that the judgment provided for permanent, rather than temporary, maintenance, was not erroneous, and that its determination that respondentís career choices and expenses were not substantial changes in circumstances rendering the maintenance award unreasonable or unfair was not clearly erroneous.† As a result, we affirm the district courtís denial of appellantís motion.† Because we conclude that the district court did not abuse its discretion in denying appellantís request for attorney fees, we also affirm that decision.†

FACTS

††††††††††† The parties were married in 1974.† The district court entered an amended judgment, pursuant to the partiesí stipulation, in 1993.† These documents recite that Louis earned a base salary of $180,000; that Ann had worked part-time as a home-economics teacher from 1974-78, and had not worked since; and that Ann expected to qualify as a registered nurse within three or four years and become employed within six years.

††††††††††† Reflecting the terms of the stipulation, the judgment provides that Louis shall pay Ann maintenance in the amount of $4,500 per month until June 1996, and then $6,000 per month until June 1999.† Beginning in July 1999, Louis is to pay Ann $4,000 per month:†

until [Annís] remarriage, or [Annís] death, whichever first occurs.† [Ann] is to use her best efforts to rehabilitate, retrain, and accomplish a meaningful reentry into the job market and employment.† This reduction to $4,000 per month is provided that [Ann] suffers from no significant physical or psychological impairment which prevents or significantly limits her gainful employment.† If she should suffer from a significant physical or psychological impairment which prevents or significantly limits her gainful employment, she would have the right to show the Court at that time that her spousal maintenance should not be reduced.† The Court shall consider whether [Ann] has used her best efforts to rehabilitate, retrain, and re-enter the job market in evaluating whether [Ann] has met her burden of proof.

Maintenance shall also terminate upon [Louisís] actual and permanent retirement from gainful employment, provided that the Court shall retain jurisdiction to provide for maintenance if [Ann] is disabled or unable to maintain employment sufficient to provide for her reasonable needs.

 

††††††††††† Ann states that as a part of her nurseís training, she took a biology course at Inver Hills Community College and ďrealized [she] could not be successful in science courses at this stage in [her] life.Ē† She began substitute teaching in 1995, and then took a full-time clerical position working with special needs children.† At the request of the principal of the school, Ann reinstated her teaching license and accepted a position which is .8 of full time and pays $37,992.†

††††††††††† At Louisís request, a vocational rehabilitation counselor evaluated Annís employment potential.† He concluded that Ann could work full time as a special needs tutor or as a teacher and that in such a position she would earn between $37,000 to $41,170 per year.† He also opined that as an R.N., Ann would have a starting salary of $53,000.†

††††††††††† Following the dissolution, Ann bought a house.† Subsequently, Ann met Ron Rankin, moved in with him in 2000, sold her house and purchased a lake cabin.† Ann concedes that all of the housing expenses she pays are associated with her lake cabin and that Rankin pays the expenses for his home.† They also jointly purchased real estate in Arizona.†

††††††††††† In 2004, Ann brought a motion for contempt, alleging that Louis failed to pay maintenance.† Louis paid his arrearages and brought a motion to terminate maintenance.† Louis argued that the judgment and decree only provided for temporary maintenance, that Annís income had substantially increased, that Annís expenses had substantially decreased, and that these changes rendered maintenance unreasonable and unfair.†

††††††††††† The district court denied Louisís motion.† The district court rejected Louisís argument that the maintenance award was temporary.† The district court found that Annís decision to pursue a teaching career rather than a nursing career did not make the stipulation unreasonable or unfair.† The district court also found that Louis did not provide sufficient evidence of a decrease in Annís expenses when she moved in with Rankin.† Louis appeals.†

D E C I S I O N

††††††††††† Whether to modify maintenance is discretionary with the district court.† Youker v. Youker, 661 N.W.2d 266, 269 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).† A district court abuses its discretion regarding maintenance if its findings of fact are unsupported by the record or if it improperly applies the law.† Dobrin v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn. 1997).† ďFindings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.Ē† Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).†

††††††††††† Minn. Stat. ß 518.64, subd. 2 (2004), provides that a district court can modify spousal maintenance

upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party . . . ; (3) receipt of assistance . . . ; (4) a change in the cost of living for either party . . . , any of which makes the terms unreasonable and unfair.

 

Under this statute, a party requesting modification must ďdemonstrate that there has occurred a substantial change in one or more of the circumstances identified in the statute and second, . . . show that the substantial change has the effect of rendering the original award unreasonable and unfair.Ē† Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).†

I.

††††††††††† The first issue is whether the district court erred in concluding that the stipulation on maintenance in the judgment provided for permanent, rather than temporary, maintenance.† The interpretation of a stipulation that is incorporated into a judgment is a question of law, reviewed de novo.† VanderLeest v. VanderLeest, 352 N.W.2d 54, 56 (Minn. App. 1984).† When the district court does not explicitly label the maintenance as permanent, but does not designate a date on which payments will end, the maintenance is functionally permanent.† Gales v. Gales, 553 N.W.2d 416, 418 (Minn. 1996) (stating that ďby failing to designate when the payments would end, the court in effect awarded permanent maintenanceĒ).† Here, the maintenance payments start at $4,500 per month for a period of three years, and then increase to $6,000 per month for the next three years.† Ann explained that this ďstep upĒ occurred when Louisís child support obligation ended.† Then the maintenance payments were to decrease to $4,000 per month, ďuntil [Annís] remarriage, or [Annís] death, whichever first occurs.Ē† Under Gales, this was an award of permanent maintenance.† The district court did not err when it determined that the judgment provided for permanent rather than temporary maintenance.

II.

††††††††††† The second issue is whether the district court clearly erred in finding that Annís failure to search for and obtain employment as a nurse was not a substantial change in circumstances rendering the original award unreasonable and unfair.† In Hecker, the Minnesota Supreme Court described how a district court should consider a stipulation as to maintenance in the context of a motion to modify maintenance:

While that stipulation represents the partiesí voluntary acquiescence in an equitable settlement, once it has been merged into the judgment and decree, it does not operate as a bar to later consideration of whether a change in circumstances warrants a modification. †Instead, its relevance in a modification context is in the identification of the baseline circumstances against which claims of substantial change are evaluated.

 

568 N.W.2d at 709 (citations omitted). †

††††††††††† Further, ď[w]hen determining whether a substantial change has rendered the terms of the original decree unreasonable and unfair, the stipulation may be relevant if one party claims this change was not or could not have been anticipated.Ē† Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn. App. 2000).† In Beck v. Kaplan, the Minnesota Supreme Court reversed the district courtís grant of the wifeís motion to modify maintenance.† 566 N.W.2d 723, 726-27 (Minn. 1997).† The court reasoned that although the husbandís income had increased and the cost of living had increased since they stipulated to a maintenance amount at the time of the dissolution, these things were or could have been anticipated by the parties at the time of the stipulation.† Id.† Similarly, in Abbott v. Abbott, the court determined that the emancipation of the husbandís adopted son could not be a basis for finding that there had been a substantial change in circumstances because the emancipation was ďspecifically planned forĒ in the stipulation.† 282 N.W.2d 561, 564 (Minn. 1979).††

††††††††††† Here, the parties expected Ann to enter the workforce and achieve some level of self-sufficiency.† The district court did not clearly err in finding that Annís income from her employment is not a change in circumstances rendering the maintenance award unreasonable or unfair.†

††††††††††† Louis argues that Annís decisions to pursue teaching rather than nursing and to maintain less than a full-time position are substantial changes in circumstances not contemplated by the stipulation.† The factual findings in the judgment indicate that Ann expected to complete her nursing degree and begin work, but the conclusions of law only require Ann to attempt to ďaccomplish a meaningful reentry into the job market,Ē without specifically mentioning nursing.† Further, the judgment does not indicate that the $4,000 maintenance payments are contingent on Annís fulfilling this requirement.† It is just the opposite; she could request that the maintenance payments not be reduced from $6,000 to $4,000 if she suffered some impairment.† Louisís criticism of Annís shift from nursing to teaching is not persuasive.† If full-time nursing was consistent with the assumptions of permanent maintenance, certainly .8 time teaching with a lower income is consistent with permanent maintenance.† We conclude the district court did not clearly err in finding that Annís choice of employment is not a substantial change in circumstances rendering the maintenance award unreasonable or unfair, based on the partiesí expectations under the judgment and decree.†

III.

††††††††††† The third issue is whether the district court clearly erred in finding that Annís expenses had not substantially decreased thereby making the maintenance award unreasonable or unfair.† Louis challenges several aspects of the district courtís calculations of Annís expenses.

Annís sharing of expenses with Rankin

††††††††††† Louis argues that Annís expenses have been reduced because she lives with Rankin.† ď[T]he existence of a meretricious relationship, standing alone, is insufficient to justify the termination of alimony.Ē† Mertens v. Mertens, 285 N.W.2d 490, 491 (Minn. 1979).[1]† Such a relationship can be considered to the extent that it ďmight improve an ex-spouseís economic well-being.Ē† Sieber v. Sieber, 258 N.W.2d 754, 758 (Minn. 1977).† In Abbott, the Minnesota Supreme Court remanded the district courtís modification of maintenance based on a partyís meretricious relationship because the record contained ďneither an itemized statement of her living expenses prior to cohabitation . . . nor a summary of the expenses she presently is incurring, data critical to a reasoned comparison.Ē† 282 N.W.2d at 565.†††††

††††††††††† Here, the primary difference in Annís expenses is that Rankin pays the expenses for the home in which they live.[2]† But Ann argues that her expenses are not reduced because she owns a lake cabin for which she pays all of the expenses, including repaying a loan from Rankin to purchase the cabin. †Ann further notes that she considers her lake cabin her home, that she bought it so that she can retire in northern Minnesota, and that she lives there during the summer and on weekends.† Cohabitating with Rankin does not give Ann any legal rights in his residence and it is not unreasonable for Ann to provide security for herself by purchasing a second home.† See Abbott, 282 N.W.2d at 566 (noting that ďbecause there is no legal tie between the parties engaged in a meretricious relationship, the arrangement can be readily broken off without obligationĒ).†

††††††††††† Louis challenges Annís assertion that she borrowed money from Rankin to buy the lake home and is paying it back monthly.† But Ann produced two notes, showing her indebtedness to Rankin, and check registers showing monthly payments to Rankin. †Although the check registers did not contain enough entries to show that Ann had paid Rankin every month since she purchased the cabin, the registers were sufficient to indicate Annís monthly obligation to Rankin.† Louis argues that Ann and Rankin own the cabin together, but the record does not support this assertion.†

††††††††††† We conclude that the district court did not clearly err in finding that Annís expenses included those from her lake home.† We also conclude that Louis did not provide sufficient evidence from which the district court could find that Annís expenses, other than those for housing, were reduced upon moving in with Rankin.† †

Annís current standard of living

††††††††††† Louis argues that Ann now maintains a standard of living that exceeds the marital standard of living.† Minn. Stat. ß 518.552, subd. 2(c) (2004), instructs the district court to consider the partiesí marital standard of living.† In Peterka v. Peterka, this court stated that ď[t]he purpose of a maintenance award is to allow the recipient and the obligor to have a standard of living that approximates the marital standard of living, as closely as is equitable under the circumstances.Ē† 675 N.W.2d 353, 358 (Minn. App. 2004).†

††††††††††† Louis argues that Annís current standard of living is excessive because she owns a lake cabin, because her vehicle is nearly paid for, because the parties had a large amount of debt during the marriage, and because Ann now owns investment property in Arizona.† As previously noted, the lake cabin represents Annís principal residential investment; this does not exceed the marital standard of living.† The record indicates the parties owned one unencumbered vehicle during the marriage.† Further, Ann now has a substantial amount of debt because of her purchase of her lake cabin.† Finally, the record indicates that Rankin arranged the purchase of, financed, and placed Annís name on the Arizona property as a joint owner with him.† Although this ownership interest improves Annís well-being, Louis had a base salary of $180,000 in 1993, the year of their marriage dissolution, and during the marriage they enjoyed a high standard of living. †Louis has not produced any evidence that Ann has income from the Arizona property nor has he explained how this gifted ownership interest so improves Annís overall standard of living that his maintenance obligation should be reduced.† The district court did not clearly err in finding that Annís current standard of living does not exceed the marital standard of living.†

Annís other miscellaneous expenses

††††††††††† Louis also disputes several other expenses Ann submitted.† Louis argues that Annís car payment should not have been included in her expenses because she had only a few payments left.† While the district court perhaps had discretion to exclude this expense, Louis presents no authority to suggest it was clear error to include it. Louis also argues that it was improper for Ann to include a $90 per month expense for student loans for the partiesí daughter because Ann agreed to pay the daughterís college expenses and that Annís grocery expense is excessive when compared to her stated grocery expense when she still had children living with her.† Assuming that Louis is correct that these expenses were improperly considered, they are not large enough for us to conclude that the district courtís denial of Louisís motion to terminate maintenance was an abuse of discretion.†

IV.

††††††††††† The fourth issue is whether the district court abused its discretion in denying Louisís request for conduct-based attorney fees.† ďAn award of attorney fees rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.Ē †Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).† Under Minn. Stat. ß 518.14, subd. 1 (2004), the district court has the discretion to award attorney fees against a party ďwho unreasonably contributes to the length or expense of the proceeding.Ē† See Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001).†

††††††††††† Here, Louis asserts that Ann unreasonably delayed disclosing her financial information, which lengthened the proceedings unnecessarily. †Louis does not explain why Annís timing was improper.† The district court did not abuse its discretion in denying Louisís motion.††

V.

††††††††††† The fifth issue is whether portions of Louisís reply brief and portions of Annís notice of motion and motion to strike should be stricken from the record.† Minn. R. Civ. App. P. 110.01 limits the record on appeal to papers filed in district court, exhibits, and transcripts.† Minn. R. Civ. App. P. 128.02, subd. 3, requires that a reply brief be confined to new matters raised in respondentís brief.†

††††††††††† Ann argues that portions of Louisís reply brief either describe facts not in the record or are nonresponsive to her brief.† We find that these references are in the record, are responsive, or are irrelevant to the decision of this court.† Louis argues that portions of Annís motion to strike are improper attempts to present facts or argument to this court.† We find that these statements are not prejudicial because they are irrelevant to this courtís decision.† Because we find that neither party unreasonably or uniquely contributed to the length and expense of this proceeding, we decline to award attorney fees on appeal to either party.†

††††††††††† Affirmed; motions denied.



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

[1] Louis argues that requiring a former spouse to continue to pay maintenance once his former spouse begins living with another person defies public policy.† Longstanding caselaw accepts such an arrangement.† See Mertens, 285 N.W.2d at 491.† We decline to change this principle without legislative direction.†

[2] Louis cites two unpublished cases in which we held that it was not an abuse of discretion for a district court to modify maintenance on the basis that a party cohabitating with someone else had reduced living expenses.† Such unpublished opinions are not precedential, see Minn. Stat. ß 480A.08, subd. 3 (2004), and in any case, do not compel the conclusion that it was an abuse of discretion not to make a similar determination here.††