This opinion will be unpublished and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:
Filed June 27, 2006
in part, reversed in part, and remanded
Ramsey County District Court
File No. F3-98-847
Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Shumaker, Presiding Judge, Klaphake, Judge, and Ross, Judge.
Appellant Barbara Jean Flaherty challenges the district court’s order on remand from this court (1) reversing the district court’s prior award of permanent maintenance of $5,600 per month and reinstating the temporary maintenance award of $3,500 per month nunc pro tunc to May 2002; (2) terminating temporary maintenance as of June 1, 2005; (3) denying appellant’s motion for permanent maintenance and imputing income to her; and (4) requiring appellant to reimburse respondent Joseph James Flaherty in the amount of $31,500, the difference between the prior permanent maintenance award and the order on remand for temporary maintenance nunc pro tunc to May 2002. See Flaherty v. Flaherty, No. A03-1101 (Minn. App. Mar. 16, 2006).
We affirm the district court’s order imputing income to appellant based on her failure to use reasonable efforts to rehabilitate and become employed. But because the district court’s findings regarding appellant’s imputed investment income, her ability to be self-sufficient, and her reasonable needs are clearly erroneous, we reverse and remand, with instructions to the district court to determine the amount of investment income appellant can reasonably expect from her marital assets and to order permanent maintenance to cover the gap between appellant’s imputed income and investment income, and her reasonable needs. We further reverse the district court’s order for reimbursement, because our remand order was intended to be prospective, rather than retroactive.
appellate court reviews the district court’s maintenance award for an abuse of
discretion. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (
may award maintenance if, in light of the marital standard of living, one party
lacks sufficient property to provide for his or her needs, or one party is
unable to provide adequate self-support through employment. See
Minn. Stat. § 518.552, subd. 1 (2002). The court may order temporary or permanent
maintenance, in varying amounts or for different periods of time, after
considering the following factors: (1)
the financial resources of the party seeking maintenance, including marital
property, and ability to meet his or her needs; (2) the time necessary to
retrain or find appropriate employment; (3) the standard of living during
the marriage; (4) the duration of the marriage; (5) the loss of earnings and
employment opportunities forgone by the party seeking maintenance; (6) the age,
and physical and emotional health of the obligee; (7) the ability of the
obligor to meet his or her own needs as well as the obligee’s; and (8) the
contribution of each party to the acquisition or preservation of the marital
The district court found that (1) based on her prior job, appellant had the ability to earn $45,000 per year at the time of the dissolution; (2) she was awarded temporary rehabilitative maintenance in order to become healthy and secure employment, but failed to make a good faith effort, or any effort, to do so; (3) she received income-producing marital assets for her support, but depleted them by spending excessively in a manner that exceeded the marital standard of living; (4) appellant could have received $1,000 per month from investment income had she invested it; (5) appellant is not disabled and is able to work; (6) the maintenance received by appellant included 36 months more maintenance than anticipated by the judgment and decree; (7) appellant had the ability to earn between $32,000 and $35,000 at the time of the 2002 hearing; (8) appellant has no housing or auto debt and has reasonable monthly expenses of $4,907 per month; and (9) respondent has a monthly income of $8,831 and monthly expenses of $6,072. The district court concluded that “[i]ncome sufficient to meet her reasonable monthly expenses should be imputed to [appellant].”
The parties agreed that appellant’s reasonable monthly expenses are $4,907 and that this figure should include an additional $471 per month for income taxes, for a total of $5,378 per month. The district court imputed earnings income of $35,000 per year, based on the testimony of vocational counselor Phil Haber, and $1,000 per month of investment income to be derived from appellant’s award of marital property. The district court gave no basis for its finding that appellant could reasonably have expected to receive $1,000 in investment income. The district court also found that the imputed earnings and investment income would permit appellant to meet her reasonable needs of $5,378 per month. But imputed income of $35,000 per year yields a monthly income of $2,917, which, when added to the imputed investment income, results in a monthly income of $3,917, well short of what all agree are appellant’s reasonable needs. Thus, to the extent that these findings are not supported by the record, they are clearly erroneous. See Dobrin, 569 N.W.2d at 202.
district court did not err, however, by imputing income to appellant. By terms of the stipulation between the
parties and the dissolution judgment, appellant was obligated to use reasonable
efforts to become self-sufficient and employed, but she failed to make even the
slightest attempt to do so. Under these
circumstances, imputation of income is proper.
See Hecker v. Hecker, 568
N.W.2d 705, 710 (
We conclude that the district court abused its discretion by failing to award permanent maintenance in an amount that would close that gap. We therefore reverse the district court’s order terminating maintenance and instruct the district court on remand to determine the amount of investment income appellant reasonably could expect to receive from her marital assets, the amount of the shortfall between appellant’s imputed earnings and investment income and her reasonable financial needs, and the ability of respondent to meet this shortfall. Once this figure is established, we instruct the district court to order permanent maintenance to cover the gap between appellant’s imputed earning and investment income and her reasonable needs, in light of respondent’s ability to pay. We intend this order to be prospective, from the date of the district court’s new order.
reverse the district court’s order for reimbursement of the difference between
the permanent maintenance paid and the temporary maintenance ordered nunc pro
tunc to May 2002. Our remand order of
March 16, 2004, was intended to be prospective, to extend temporary maintenance
forward until the district court could establish the appropriate type and
amount of maintenance. In this instance,
a nunc pro tunc order, which is generally limited to correction of clerical
errors or omissions from the record, was not appropriate. See
Hampshire Arms Hotel Co. v. Wells, 210
Affirmed in part, reversed in part, and remanded.
parties stipulated that any consideration of cessation or continuance of the
temporary maintenance ordered under the judgment and decree would be subject to
the provisions of Minn. Stat. § 518.552 (2002), and not the modification
standards. See Gatfield v. Gatfield, 682 N.W.2d 632, 637 (