This opinion will be unpublished and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
Hennepin County District Court
File No. DC 237049
Corrine D. Lynch, One Corporate Center IV, 7301 Ohms Lane, Suite 425, Edina, MN 55439 (for appellant)
Robert A. Manson, Robert A. Manson, P.A., 2233 Hamline Avenue North, Suite 609, Roseville, MN 55113 (for respondent)
Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.
In this appeal from the district court’s denial of her motion to modify spousal maintenance, appellant-wife argues that the district court’s findings of fact are clearly erroneous, the facts and law support an award of permanent maintenance, the district court failed to make adequate findings, and the district court should have conducted a hearing on the motion. We affirm.
Appellant Elizabeth Aronson and respondent Dennis Isaacs were married in 1976. They separated in 1997, and Isaacs petitioned to dissolve the marriage. The parties appeared in district court on June 4, 1999, and entered a stipulation into the record as follows:
[Isaacs] would pay to [Aronson] the sum of $400 a month as and for spousal maintenance commencing July 1, 1999. After four years the amount of maintenance would go down to $300 per month for one year.
The parties’ expectations are that [Aronson] would remain in good health and that her income would steadily increase with additional training, raises, and so forth that she could reasonably expect through her current employment.
The parties have also agreed that sometime during the fourth year of the maintenance obligation that they would meet and try to resolve any issues over the termination of the maintenance after five years. And if they’re unable to do so either party would be allowed to bring the matter back to court anytime during that fifth year.
Aronson was questioned as follows by her attorney regarding the stipulation:
Q. And I also want to inquire to be sure you understand the arrangement for the spousal support. You understand that what we have agreed to is not what’s termed a permanent spousal support? In other words, it does not go on forever.
Q. The way it is agreed is that you will have $400 a month for four years beginning July 1st and then for an additional year you will have [$]300 a month. And sometime before the end of that fifth year if you feel your expectations have not been met, in other words, your health is not as good as it could be so it’s limiting you from working, you have not obtained the raises that you’d hoped to get that you do have a right to come back to court before the end of that fifth year, but you must do it before that fifth year is over, in other words, have a hearing scheduled before that time.
The parties indicated their agreement to these terms and requested that the district court accept the stipulation.
The marriage was dissolved by judgment and decree on September 3, 1999. According to the terms of the judgment and decree, either party was permitted to raise the issue of additional spousal maintenance prior to June 1, 2004.
On March 9, 2004, Isaacs moved to correct the terms of the judgment and decree so as to accurately reflect the parties’ stipulation that spousal maintenance should be reduced to $300 after four years on June 1, 2003, rather than June 1, 2004. On May 6, 2004, Aronson filed a counter-motion to modify the judgment and decree to provide for permanent spousal maintenance. Isaacs filed a responsive pleading. The parties appeared before a referee in chambers on July 6, 2004; a record was not made of those proceedings.
In an order dated July 9, 2004, the district court corrected the terms of the judgment and decree to indicate that the monthly payments of $400 ended on June 1, 2003, and ordered the parties to mediate the remaining issues raised in their motions. By letter dated December 9, 2004, Isaacs advised the district court that mediation had been unsuccessful and requested denial of the motion for permanent spousal maintenance based on the parties’ submissions. Aronson responded by letter dated December 14, stating that, because so much time had passed since the hearing on the motion, she would like “the opportunity to present a short written summary of the relevant facts and our arguments in support of our motions, to be provided simultaneously by both parties, within two weeks of a specified date of notice.”
On January 3, 2005, the referee filed a recommended order, which was countersigned by a district court judge and became an order of the district court. See Minn. Stat. § 484.70, subd. 7(c), (e) (2004) (recommended findings and order of referee become findings and order of district court when confirmed by district court judge). The district court found that Aronson’s income had increased by 33 percent, that she was in good health, and that she failed to supply documentation establishing a change in expenses. Concluding that Aronson failed to prove a substantial change in circumstances rendering the original maintenance order unreasonable and unfair, the district court denied her motion.
On January 20, 2005, Aronson filed a notice of review of the order. Isaacs sought dismissal of the notice as untimely filed under Minn. Stat. § 484.70, subd. 7(d) (2004). Correspondence from Aronson’s attorney indicates that the filing was untimely because the attorney was out of the office for her father’s funeral. On April 12, 2005, the district court dismissed the notice of review as untimely and affirmed the January 3 order. This appeal followed.
In her notice of appeal, Aronson indicated that she was appealing from the April 12 order dismissing her notice of review. But she did not address the issue in her brief. Our review of the record in light of the applicable statutes and caselaw establishes that the district court’s dismissal of the notice of review was not erroneous.
of any recommended order or finding of a referee by a judge may be by notice
served and filed within ten days of effective notice of the recommended order
or finding.” Minn. Stat. § 484.70,
subd. 7(d) (2004); see also Minn. R.
Civ. P. 53.05(b) (2005) (providing that party may serve written objections to
referee’s findings within ten days of being served with notice of referee’s
report). “Effective notice” under the
statute is deemed to occur three working days after the court clerk or opposing
party mails the order. In re custody of A.S.R., 539 N.W.2d 607,
610-11 (Minn. App. 1995). If the
aggrieved party fails to timely file a notice of review of a referee’s
recommended order, the district court loses jurisdiction to review the
order. Koponen v. Koponen, 352 N.W.2d 834, 835 (
The facts on this issue are undisputed. The family court clerk mailed the January 3 order on January 4. Thus, the date of effective notice was January 7, three days after mailing. Therefore, the notice of review ordinarily would have been due ten days later, on January 17. But because January 17 was a legal holiday, a timely notice of review could be served and filed no later than January 18. See Minn. R. Civ. P. 6.01 (rules for computing time). Aronson served and filed the notice of review by mail on January 19; the district court record indicates a filing date of January 20. Notwithstanding the unfortunate circumstances that caused the delay, the district court correctly dismissed the notice of review as untimely.
untimely notice of review filed in the district court does not prevent Aronson
from proceeding with an appeal of the January 3 decision. Warner
v. Warner, 391 N.W.2d 870, 873 (
The district court denied Aronson’s motion to modify spousal maintenance, finding that Aronson failed to prove a substantial change in circumstances. Aronson advances the following arguments in favor of reversal: (A) the district court’s findings of fact are clearly erroneous, (B) the facts and the law support an award of permanent maintenance, (C) the district court failed to make adequate findings, and (D) she was denied a hearing on the motion and an opportunity to respond to Isaacs’s affidavits.
will not disturb the district court’s findings of fact unless, when viewing the
evidence in the light most favorable to the findings, we conclude that they are
Aronson argues that the district court’s finding that her monthly income increased by approximately 33 percent is clearly erroneous because it increased from $1,130 at the time of the dissolution to $1,260.76 at the time of the motion for modification. Aronson testified by affidavit that she earned an hourly wage of $9.05 on the date of the dissolution and an hourly wage of $11.84 on the date of the motion. She also testified that she suffered from chronic neck problems that interfered with her ability to work overtime.
Isaacs supplied the district court documents indicating that Aronson’s hourly rate of pay was $12.04 at the time of the motion. The documents also demonstrated that, although Aronson claimed in April 2004 that she was unable to work overtime, she had worked overtime in March 2004. Thus, viewing the evidence in the light most favorable to the findings, we conclude that the record supports the district court’s determination that Aronson’s hourly income increased from $9.05 at the time of the dissolution to $12.04 per hour, “an increase by about 33%.” Aronson counters that the increase only reflects a two percent cost of living increase per year. But this assertion does not render the district court’s finding of a roughly 33 percent increase in income erroneous because the figures relied on by the district court are supported by the record, and the district court’s calculation is mathematically correct.
Aronson also asserts that the district court’s finding regarding her expenses is erroneous. The district court found: “[T]he aforesaid Judgment and Decree did not recite [Aronson’s] expenses at the time of the dissolution. There is no documentation regarding any substantial change in her expenses since that time.” Aronson argues that her affidavit set forth the information regarding a change in expenses and shows that her monthly expenses at the time of the dissolution were $1,442 and her monthly expenses at the time of the motion were $2,028. This evidence, however, does not refute the district court’s finding.
The district court correctly noted that Aronson’s expenses at the time of the dissolution were not set forth in the judgment and decree. Moreover, Aronson failed to provide the district court with an itemization of her monthly expenses at the time of the dissolution or any documentation supporting the amount of expenses claimed. The district court rejected as insufficient to demonstrate a substantial change in circumstances the amount Aronson claimed as expenses without supporting documentation. Because the challenged finding is supported by the record, it is not clearly erroneous.
Aronson also challenges the district court’s finding regarding her neck injury. This finding states:
[Aronson] is now 46 and has a high school education. She claims a work-related injury on April 8, 2003 resulting in neck and spinal pain. However, there was no convincing evidence of any permanent injury and no evidence that she has work restrictions as a result of such injury. Lastly, there is no evidence indicating that she has sustained a general decline in health other than age.
The record also supports this finding. Aronson’s medical records indicate that she had reached maximum medical improvement by March 15, 2004, and she “did not sustain a permanent partial disability as a result of this injury.” In light of this evidence, the district court’s finding regarding Aronson’s neck injury is not clearly erroneous.
Aronson also contends that the district court erred in concluding that two one-time deposits to her checking account from her savings account indicated she had undisclosed resources. At issue here is the district court’s finding that
[Aronson] received $32,412.00 from the sale of the parties’ homestead in 1999 and $16,000.00 from [Isaacs’s] 401K account. In the year 2000, she purchased $73,000.00 worth of stock. This would indicate additional sources of income not otherwise disclosed by [Aronson]. She sold her stock for $61,000.00 . . . at a loss. [Aronson] failed to disclose her savings account despite it being requested in discovery. Transfers from the savings account to [Aronson’s] checking account indicate an undisclosed resource available to [Aronson]. Her failure to disclose this information permits the Court to draw a negative inference that [Aronson] has sufficient other resources to support herself. In addition, [Aronson] has unexplained income being deposited in her checking account.
Aronson contends that her only other “resource” was her brother and that he both contributed to expenses while he lived with her and shared a bank account with her.
The district court correctly considered Aronson’s failure to disclose information on a savings account during discovery and her purchase and sale of a large amount of stock. Based on Aronson’s failure to produce certain bank statements and the probative value of other evidence in the record, the district court properly drew a negative inference that she had undisclosed resources available to her. See, e.g., Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436-37 (Minn. 1990) (permitting inference that evidence a party fails to produce would have been unfavorable to the party).
Furthermore, Aronson’s brother was receiving only $200 monthly from Hennepin County, which does not fully account for the other sums deposited into Aronson’s bank account. In addition, affidavits of the parties’ sons indicate that Aronson vacationed in Jamaica in 2000, impeaching her claim in an interrogatory response that her only vacation since 1999 was to Grand Rapids, Minnesota. Because the record amply supports the district court’s finding that Aronson had undisclosed resources, this finding is not clearly erroneous.
Aronson next challenges the denial of her motion to modify her maintenance award to provide for permanent spousal maintenance, arguing that the district court’s decision is not supported by the facts and the law. Aronson contends that her increased need and failure to become self-sufficient warrant an award of permanent maintenance.
party seeking modification or extension of a spousal-maintenance award must
show that there has been a substantial change in circumstances since the
original or previous award that renders the existing award unreasonable and
unfair. Minn. Stat. § 518.64, subd.
2 (2004); Beck v. Kaplan, 566 N.W.2d
723, 726 (
establish a substantial change in circumstances justifying modification, the
evidence must demonstrate that one of the following circumstances makes the
existing award unreasonable and unfair: (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. Minn. Stat.
§ 518.64, subd. 2(a). When
determining whether to modify spousal maintenance, the district court applies
the same standard for setting an original award of maintenance to the facts as
they exist at the time of the modification request.
spousal maintenance is awarded to assist the recipient in becoming
self-supporting. “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.” Nardini v. Nardini, 414 N.W.2d 184, 198
parties have stipulated to temporary spousal maintenance does not preclude a
subsequent motion for modification based on changed circumstances. Hecker
v. Hecker, 568 N.W.2d 705, 709 (
Citing Minn. Stat. § 518.552, Aronson argues that, had the circumstances she presents now been presented when the initial determination of maintenance was made, they would have supported an award of permanent maintenance. Assuming for our analysis the truth of this assertion, section 518.552 nevertheless is inapplicable here. Because a motion to modify spousal maintenance is before us, Aronson must first satisfy the criteria set forth in section 518.64, not section 518.552. Only after a district court decides to grant modification does section 518.552 become applicable to determine the amount of the award. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating that because district court found lack of changed circumstances, “it is not necessary for the trial court to make findings regarding any other factors addressed in the statute”). Similarly, Aronson’s reliance on Maeder v. Maeder in arguing for a balancing of the parties’ expenses and income is misplaced. 480 N.W.2d 677, 679 (Minn. App. 1992) (stating that maintenance determination is based on balancing parties’ resources and needs), review denied (Minn. Mar. 19, 1992). Such balancing of income and expenses need not occur unless a district court first determines that modification is appropriate, which the district court in this case did not do.
Aronson maintains that, although her income has increased, she remains unable to meet her needs without continuing spousal maintenance because her expenses have increased dramatically and exceed her monthly income. She argues that temporary maintenance is not appropriate when it is uncertain whether the party seeking maintenance will ever become self-supporting. But this argument ignores the failure of the evidence to support her claim. As previously described, Aronson did not supply the district court with a breakdown of her monthly expenses at the time of the dissolution. To establish an increase in her needs, Aronson was required to contrast current evidence regarding her expenses with the facts relating to her monthly expenses at the time of dissolution, which she failed to do.
Aronson also contends that the district court incorrectly applied the law because it denied her motion based on her good health and her increased income. Indeed, the district court found, as the evidence established, that Aronson’s income had increased and she has no work restrictions attributable to her health. From our review of the order, however, it is clear that the district court denied Aronson’s motion because she failed to satisfy her burden of showing a substantial change in circumstances rendering the original spousal maintenance award unreasonable and unfair. Thus, this argument is unavailing.
The information Aronson provided regarding past expenses lacked any supporting documentation and was, therefore, insufficient to substantiate her claims that her expenses had increased and now exceed her income. Because the record supports the district court’s determination that Aronson failed to establish a substantial change in circumstances, the district court did not abuse its discretion in denying her motion to modify and extend spousal maintenance.
next contends that the inadequacy of the district court’s findings requires
reversal. We disagree. When considering a motion to modify
maintenance, the district court must make findings that are sufficient to
permit appellate review of whether the relevant statutory factors were
correctly applied. Stich v. Stich, 435 N.W.2d 52, 53 (
Finally, Aronson argues that she was prejudiced by the denial of a hearing on her motion and the opportunity to respond to Isaacs’s affidavits. She contends that she could have clarified the source of the funds in her savings account and augmented the evidence regarding her medical condition.
district court is not required to hold a hearing on a motion for modification
of spousal maintenance. Minn. Stat.
§ 518.64, subd. 2(f). Motions in
family court ordinarily shall be submitted with affidavits and supporting
documentation; a hearing will be granted only on demand of a party and for good
cause shown. Minn. R. Gen. Pract.
303.03(d); Doering v. Doering, 629
N.W.2d 124, 130 (Minn. App. 2001), review
Aronson also maintains that, after receiving Isaacs’s affidavits, she should have been given time to respond. Isaacs’s responsive pleading, affidavits, and documentation were filed on July 1, 2004. The district court did not decide the motion on July 6, but rather ordered the parties to mediate. Isaacs did not advise the district court that mediation was unsuccessful until December 9. And the district court did not issue its order until January 3, 2005. Aronson had ample time between July 2004 and January 2005 to reply to Isaacs’s affidavits. That she did not do so does not compel reversal.
In sum, the evidence amply supports the district court’s findings of fact, and those findings support the conclusions of law. Accordingly, the district court did not abuse its discretion in denying the motion to modify spousal maintenance.