This opinion will be unpublished and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
In re the Marriage of:
Richard K. Burtness, petitioner,
Janine Burtness, f/k/a Janine Ginter,
f/k/a Janine Klow,
Filed July 18, 2006
Koochiching County District Court
File No. F1-04-259
Gerald O. Williams, Jr., McCullough, Smith, Kempe, Williams & Cyr, P.A., 905 Parkway Drive, St. Paul, MN 55117 (for appellant)
Steven A. Nelson,
Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
In this dissolution matter, appellant argues that the record does not support the district court’s findings regarding the value of certain assets and appellant’s income, and the award of attorney fees to respondent. Because the district court did not clearly err in its findings regarding the value of assets and appellant’s income, and did not abuse its discretion in awarding attorney fees, we affirm.
D E C I S I O N
Appellant Richard K. Burtness argues
that the district court abused its discretion by failing to relieve him from
his spousal-maintenance obligation when there had been a substantial change in
circumstances since the initial decree.
We review a district court’s maintenance award under an
abuse-of-discretion standard. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (
The modification of
spousal-maintenance awards is governed by Minn. Stat. § 518.64
(2004). “The terms of
an order respecting maintenance or support may be modified upon a showing of
one or more of the following: (1) substantially increased or decreased earnings
of a party; [or] (2) substantially increased or decreased need of a party . . .
which makes the terms unreasonable and unfair.”
Minn. Stat. § 518.64,
subd. 2(a). A district
court should exercise its discretion to modify “with great caution and only
upon clear proof of facts showing that the circumstances of the parties are
markedly different from those in which they were when the decree was rendered.” Rubenstein v. Rubenstein, 295
Here, appellant argues that there has been a substantial change in circumstances regarding his income since 1994. The decree indicates that appellant’s net monthly income was $9,374 at the time of the dissolution. Appellant agreed to pay respondent $5,000 per month in permanent spousal maintenance and $1,200 per year for medical insurance. The decree further provides that appellant’s spousal-maintenance obligation would terminate upon respondent Janine Burtness’s (f/k/a Janine Ginter, f/k/a Janine Klow) remarriage and would resume in the event respondent’s remarriage was terminated. In 2004, respondent filed a notice of intent to docket a judgment against appellant certifying an arrearage amount of $108,000 in spousal maintenance and $15,600 in unpaid health-insurance premiums, and a motion requesting that appellant be held in contempt of court for his willful failure to pay spousal maintenance. Appellant filed a cross-motion requesting that his spousal-maintenance obligation be terminated due to a substantial change in circumstances. The district court denied respondent’s motion requesting appellant be held in contempt; however, it entered a judgment against appellant in favor of respondent for $119,500 in spousal-maintenance arrears and $10,000 in attorney fees. The district court also denied appellant’s motion to terminate his spousal-maintenance obligation.
Appellant has failed to provide sufficient evidence to support his argument that there has been a substantial change in circumstances since the initial decree. Appellant has not filed income tax returns for the past seven years and provided no income documentation that would substantiate his income, business expenses, profits or losses since the dissolution. Appellant denies that he was employed, but admits to taking draws from his business entities, which consist primarily of golf-course developments. He also acknowledged that since the divorce in 1994, he paid $2.8 million in debt plus $500,000 in spousal maintenance. Appellant provided little explanation for where he obtained the money to pay these amounts. In addition, appellant’s agreement to pay spousal maintenance was supported by the fact that he received substantially all of the parties’ net worth, approximately $2.3 million, at the time of the dissolution. Respondent left the marriage with her personal belongings and appellant’s agreement to pay her $5,000 per month in spousal maintenance. Appellant has failed to meet his burden of showing that there has been a substantial change in circumstances. The district court’s findings are supported by the evidence, and therefore are not clearly erroneous. The district court did not abuse its discretion in denying appellant’s motion to terminate his spousal-maintenance obligation.
Appellant also argues that the district court abused its discretion in awarding respondent $10,000 in attorney fees. An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2004), “rests almost entirely within the discretion of the [district] court and will not be disturbed absent a clear abuse of discretion.” Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999); see Geske v. Marcolina, 624 N.W.2d 813, 818 (Minn. App. 2001) (addressing 1990 amendments to Minn. Stat. § 518.14 as well as recovery of attorney fees under Minn. Stat. § 518.14, subd. 1, in both district and appellate court).
Attorney fees in dissolution cases are governed by Minn. Stat.
§ 518.14, subd. 1, which allows both need-based and conduct-based fee awards. The
district court “shall award attorney
costs, and disbursements in an amount necessary to enable a party to carry on
or contest the proceeding” if it finds (1) the fees are necessary for a good-faith assertion of rights; (2) the payor has the
ability to pay the award; and (3) the recipient does not have the means to pay
his or her own fees. Minn. Stat. § 518.14, subd. 1. Further, the district court “in its discretion,” may award “additional
fees, costs and disbursements against a party who unreasonably contributes to
the length or expense of the proceeding.”
While the district court found that “respondent is without current funds or ability to pay reasonable attorney fees and expenses and [appellant] is obligated to contribute to those fees incurred[,]” it did not identify the authority under which it awarded the attorney fees. Because there is no finding by the district court that appellant unreasonably contributed to the length and expense of the trial, and it cannot be reasonably inferred from the findings, it appears that the attorney-fees award to respondent is need-based. Further, although there is no specific finding that appellant had the ability to pay the award, the district court was familiar with the history of the case and had access to the parties’ financial records. The district court found that there has been little change in appellant’s income since the divorce and that in 2004 he received “well in excess of the $9,374 per month he was reportedly earning at the time of the dissolution stipulation.” Therefore, it can be reasonably inferred from the district court findings that appellant had the ability to pay the award. Based on the evidence, the district court did not abuse its discretion in awarding respondent attorney fees.