This opinion will be unpublished and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 Margaret Colburn,

n/k/a Mary Margaret Juneau,






Richard Harlan Colburn,




Filed June 27, 2006

Affirmed in part, reversed in part, and remanded

Harten, Judge*


Anoka County District Court

File No. F2-87-8006


James C. Skoog, 151 Silver Lake Road, #110, New Brighton, MN  55112 (for respondent)


Thomas Tuft, Scott M. Rodman, Tuft & Arnold, PLLC, 2109 County Road D East, Maplewood, MN  55109 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge; Dietzen, Judge; and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Richard Harlan Colburn challenges the district court’s order denying his motion to reduce or terminate his permanent maintenance obligation to respondent Mary Margaret Juneau.  The motion was based on a substantial change in circumstances occasioned by appellant’s early retirement.  Appellant also contests the award of attorney fees to respondent.  Because the district court’s finding that appellant retired in bad faith is inadequately supported by the record, we conclude that the district court abused its discretion by denying appellant’s motion.  And because the record does not contain sufficient information to determine appropriate maintenance based on appellant’s changed circumstances, we remand to the district court with instructions to reopen the record, but continue appellant’s spousal maintenance obligation undiminished until the district court can determine the appropriate amount of maintenance based on changed circumstances.  We affirm the district court’s award of attorney fees to respondent.


            The parties’ 22-year marriage was dissolved on 30 May 1989.  At the time of the dissolution, appellant had been employed by the United States Post Office for 27 years; respondent had been primarily a homemaker.  Appellant then earned approximately $1,800 net per month and respondent earned approximately $559 net per month as a bus driver.  Appellant was ordered to pay $700 per month permanent spousal maintenance, commencing after the emancipation of the parties’ child; appellant was also ordered to pay respondent’s health insurance costs.  By 2005, the maintenance obligation was $783 per month because of cost-of-living increases, and respondent’s health insurance cost was $502 per month.

            In April 2005, appellant retired from the post office after a 42-year career.  Based on years of service, appellant had been eligible to retire for seven years prior to this date, but continued to work.  By 2005, appellant was 61 years old and had health problems, including chronic knee pain, plantar fascitis, and macular degeneration, which caused him to lose vision in his right eye.  He applied to the post office for disability benefits, but was told he was ineligible because he was of retirement age.  Appellant decided to retire in April 2005 before he became totally blind, but failed to inform respondent of his intentions.  After his retirement, appellant brought this motion to terminate or reduce his spousal maintenance and health insurance obligations.

            Respondent was 60 years old at the time of appellant’s motion.  Since the dissolution she has held a variety of lower-paying jobs because of her limited experience and education.  Respondent also suffers from health problems, including pain in her hands and feet, possibly caused by her diabetes.  Although she is able to work, her physical problems limit the type of work that she can do.  Respondent is dependent on spousal maintenance to meet her monthly expenses and has no health insurance other than that provided by appellant. 

            The district court found that appellant failed to provide adequate financial information in his motion papers.  The district court found that appellant earned about $4,300 gross per month immediately before retiring, and that he anticipated receiving a monthly pension of $2,980, reduced by respondent’s probable $527 per month share of his pension.  These numbers were based on an actuarial analysis commissioned by appellant.  No information from the pension fund was provided; neither party knew at the time of the hearing what appellant’s actual pension payment or respondent’s share under a QDRO would be.  At oral argument, the parties agreed that the final figures remained unavailable, more than one year after appellant retired.[1]

            Appellant claimed expenses of $2,400 per month, roughly equivalent to his pension income.  He stated that his fiancée paid for food and telephone; the district court noted that he did not clarify whether his fiancée otherwise contributed to household expenses.  The district court found that appellant failed to document his assertion that the post office would not permit disability pay, his medical reports were inconclusive and did not show whether he was unable to work, and he failed to notify respondent about her pension rights.  The district court concluded that appellant had retired in bad faith in order to limit his income.

            The district court found that respondent had total monthly income of $1,400 and necessary expenses of $2,110.  Respondent worked at McDonald’s earning about $250 per month, cleaned houses for about $515 per month, received Social Security disability
benefits of $628 per month, and had short-term rental income of $100 per month.  Respondent intended to leave the McDonald’s job in June 2005 because of pain in her hands and toes.  The district court found that respondent was in need of continuing spousal maintenance and health insurance coverage.

            The district court concluded that appellant failed to sustain his burden of proving a change in circumstances that would warrant modification of the stipulated permanent maintenance and that he had acted in bad faith.  The district court awarded respondent $1,000 in attorney fees, apparently based both on need and on the perception that appellant had acted in bad faith because he failed to show that he was unable to work for health reasons.  This appeal followed.


            A district court’s decision regarding modification of spousal maintenance is reviewed for an abuse of discretion and will not be overturned absent a “clearly erroneous conclusion that is against logic and the facts on record.”  Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992) (quotation omitted), review denied (Minn. Mar. 19, 1992).  The district court’s findings are reviewed for clear error.  Minn. R. Civ. P. 52.01.  An award of attorney fees is also a matter within the district court’s broad discretion.  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). 

1.         Motion to Modify Maintenance and Insurance Obligations.

            An order for maintenance may be modified upon a showing of, among other things, substantially increased or decreased earnings or substantially increased or decreased need of a party.  Minn. Stat. § 518.64, subd. 2(a) (2004).  A party seeking modification must show not only a substantial change in circumstances, but also that the “change has the effect of rendering the original maintenance award both unreasonable and unfair.”  Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997). When considering modification, the district court applies the factors listed in Minn. Stat. § 518.552 (2004), as they exist at the time of the motion.  Minn. Stat. § 518.64, subd. 2(c) (2004).  These factors include: (1) an analysis of the parties’ financial resources and their ability to independently meet their own needs; (2) the probability of a party becoming self-supporting with training or education; (3) the marital standard of living; (4) the duration of the marriage; (5) the loss of employment opportunities and the diminishment of earning capacity during the marriage by the party seeking maintenance; (6) the age and physical and emotional condition of the parties; and (7) the ability of the obligor to pay.  Minn. Stat. § 518.552, subd. 2.  The party seeking to modify a maintenance order has the burden of proof.  Borchert v. Borchert, 391 N.W.2d 74, 75 (Minn. App. 1986).

            The district court concluded that appellant had retired in bad faith because respondent was not given notice and because the court questioned the severity of appellant’s medical problems.  Whether an obligor’s early retirement is in bad faith depends on a number of factors, including, but not limited to, the obligor’s health and employment history, whether the parties had an expectation regarding early retirement at the time of dissolution, and the employer’s policies and the general economic conditions prevailing at the time of retirement.  Walker v. Walker, 553 N.W.2d 90, 95 (Minn. App. 1996). 

            There is unavoidably a suggestion of bad faith when a maintenance obligor fails to timely notify his obligee of a critically important decision such as retirement.  Without timely notice, the obligee (here, respondent) cannot prepare for a reduction in cash resources.  This is serious business.  Nevertheless, we are reluctant to affirm a finding of bad faith where, as here, appellant chose to retire at the age of 61 after a 42-year career with the postal service because he has a degenerative disease that leads to blindness.  The district court’s finding questioning the severity of appellant’s health problems is not supported by the record; appellant’s medical reports are uncontested and attest to his inexorable progression toward blindness caused by macular degeneration.  Given this record, we conclude that the district court’s findings of bad faith are clearly erroneous and that its broad conclusions based thereon are an abuse of discretion.

            We note that although the district court faulted appellant for failing to sustain his burden of proof regarding his current financial circumstances, both parties acknowledge that precise pension figures have been elusive.  It is evident from the record that appellant’s retirement constitutes a substantial change in circumstances.  We therefore remand this matter to the district court with instructions to forthwith reopen the record and accurately determine the parties’ respective financial circumstances given appellant’s retirement.  The current maintenance obligation shall remain in effect until accurate pension details become available and are considered by the district court.

2.         Attorney Fees.

            Appellant also challenges the district court’s award of attorney fees to respondent.  In a dissolution action, an 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.”  Crosby, 587 N.W.2d at 298 (quotation omitted).  The district court

shall award attorney fees . . . in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds:

            (1)       that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

            (2)       that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

            (3)       that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.


Minn. Stat. § 518.14, subd. 1 (2004). 

            The district court found that (1) respondent incurred $1,000 in attorney fees in order to make a good-faith assertion of her right to spousal maintenance; (2) appellant has the means to pay for respondent’s attorney fees; and (3) respondent does not have the means to pay her own attorney fees, as evidenced by the fact that she was permitted to proceed in forma pauperis.  Because the district court’s findings and decision are
reasonably supported by the record, we affirm the award of attorney fees on the basis of respondent’s need.

            Affirmed in part, reversed in part, and remanded.

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

[1] There is cause to believe that the unavailability of pension information is a major factor driving this litigation.