This opinion will be unpublished and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
Marjorie Ann Roggeman,
Ben Edward Roggeman, Jr.,
Hennepin County District Court
File No. SP 143 852
Peter J. Horejsi, McCloud & Boedigheimer, P.A., 201 Southgate Office Plaza, 5001 American Boulevard West, Bloomington, MN 55437 (for appellant)
Considered and decided by Wright, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.
On appeal from the district court’s denial of appellant-husband’s motion to modify or terminate respondent-wife’s spousal maintenance, husband argues that the district court abused its discretion when it found that the parties’ changed circumstances do not necessitate modification or termination of husband’s maintenance obligation. We remand.
The 26-year marriage of respondent Marjorie Roggeman (wife) and appellant Ben Roggeman (husband) was dissolved on March 22, 1990, by judgment and decree. The district court divided the parties’ property and awarded each spouse one-half of husband’s pension accounts as of the date of dissolution. The district court also ordered husband to pay monthly spousal maintenance to wife in the amount of $400 because wife lacked “sufficient income and sufficient property, including the marital property portion to her, to provide for her reasonable needs considering the standard of living established during the marriage.” The judgment and decree specified that the spousal maintenance was subject to cost-of-living adjustments and was to continue “until the death of either party, the remarriage of [wife], or modification or termination by the Court, whichever first occurs.” Since the marital dissolution, husband’s monthly spousal-maintenance obligation has increased to $594 as a result of cost-of-living adjustments.
On April 1, 2005, in anticipation of his upcoming retirement on April 29, 2005, husband moved the district court to modify, reduce, or terminate spousal maintenance. Husband argued that changes in the parties’ incomes since the dissolution are substantial and render husband’s existing maintenance obligation unreasonable and unfair.
A referee heard husband’s motion. In his recommended order, the referee found that wife has a net monthly income of $1,810.20, which includes her employment income and the payments she receives from her marital portion of husband’s pension accounts. The referee found that husband’s postretirement net monthly income, not including the payments husband receives from his marital portion of his pension accounts, equals $2,654.05. These figures, as compared with the parties’ income levels at the time of dissolution, demonstrate that wife’s income (including the pension portion of her marital-property settlement) has increased 31 percent over inflation since dissolution while husband’s income (excluding the pension portion of his marital-property settlement) has increased 4.4 percent over inflation. The referee also calculated the parties’ net monthly expenses and found that husband’s expenses, not including his maintenance obligation, total $2,658.61, while wife’s are $2,227.
Based on these figures and the standard of living enjoyed during the parties’ marriage, the referee found that the change in wife’s income was substantial and made husband’s present maintenance obligation unreasonable and unfair. In his recommended order, the referee granted husband’s motion to modify spousal maintenance and decreased husband’s monthly maintenance obligation from $594 to $200. The recommended order became effective when countersigned by the district court and wife sought review. Minn. Stat. § 484.70, subd. 7(c)-(e) (2004).
On review, the district court adopted the referee’s findings regarding the parties’ net monthly incomes and expenses. But the district court disagreed with the referee’s finding that these figures represent a substantial change that renders husband’s maintenance obligation unreasonable and unfair. The district court, therefore, reinstated husband’s $594 monthly maintenance obligation. This appeal followed.
D E C I S I O N
district court has broad discretion in deciding whether to modify a spousal
maintenance award.” Kielley v. Kielley, 674 N.W.2d 770, 775 (
Before a maintenance award
may be modified, the party seeking the modification has the burden of proving
that there has been a substantial change in circumstances, such as a
substantial increase or decrease in the earnings or needs of a party or a substantial
change in the cost of living for either party. See Minn.
Stat. § 518.64, subd. 2(a) (2004) (addressing modification of maintenance);
Tuthill v. Tuthill, 399 N.W.2d 230, 231-32 (Minn. App. 1987)
(same). The moving party also must prove
that the substantially changed circumstances make the current maintenance award
unreasonable and unfair. Minn.
Stat. § 518.64, subd. 2(a). Although the
district court has broad discretion when ruling on a motion for modification, it
must exercise its discretion in favor of modification “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, the district court determined that the 31-percent increase in wife’s income is not substantial. It further held that husband’s current maintenance obligation is fair and reasonable because, despite wife’s increase in income, wife’s current standard of living remains lower than husband’s and lower than the standard of living that wife enjoyed during the marriage. The district court, therefore, denied husband’s motion to modify or terminate husband’s maintenance obligation.
Husband argues that the district
court abused its discretion when it denied his motion because husband’s current
maintenance obligation will require him to use the portion of his pension
accounts awarded to him as marital property to satisfy his maintenance
obligation. We have held that, to the
extent an obligor proves that his or her maintenance obligation will require
the obligor to deplete his or her marital-property award to pay maintenance, the
obligor’s maintenance obligation is subject to modification under Minn. Stat.
§ 518.64, subd. 2. Kruschel v. Kruschel, 419 N.W.2d 119, 122 (
district court was well within its authority to make such a finding. We also observe that these sorts of findings generally
are credibility determinations to which we give great deference. In re
Welfare of M.D.O., 462 N.W.2d 370, 374-75 (
If on remand the district court finds that husband will have to invade the marital portion of his pension accounts to satisfy his maintenance obligation, the district court must determine whether this invasion necessitates modification of husband’s maintenance obligation. There are two primary principles on which the district court must make that determination. The first is the principle that, when a maintenance obligor proves that the maintenance obligation will require the obligor to deplete his or her marital-property award, the obligor’s maintenance obligation is subject to modification. See Kruschel, 419 N.W.2d at 122 (“To the extent that [a maintenance award] would require [the obligor] to deplete his property award to pay maintenance, it is subject to modification under Minn. Stat. § 518.64, subd. 2.”). But see Richards v. Richards, 472 N.W.2d 162, 165 (Minn. App. 1991) (holding that Kruschel’s rule “by no means rules out exceptions,” and, therefore, property award may be invaded under certain circumstances, such as when obligor limited his or her income in bad faith).
The second is the principle that
the “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.” Peterka v. Peterka, 675 N.W.2d 353, 358
acknowledge that these principles may conflict with one another if and when
they are applied in this case. If indeed
they conflict, the district court must balance those principles against one
another and explain its reasoning. When
the maintenance obligee urges that maintenance is insufficient and the
maintenance obligor urges that it is excessive, the district court must
discharge its duty equitably to balance the obligee’s need against the obligor’s
ability to pay. Buhr v. Buhr, 395 N.W.2d 433, 436 (Minn. App. 1986) (holding that
when district court discharges this duty, district court does not abuse its
discretion even when it imposes a maintenance obligation that causes obligor’s
expenses to exceed obligor’s income). We observe that the fact
that an obligor’s income is less than his or her expenses, including
maintenance, does not by itself require a modification of the obligor’s
maintenance obligation. See, e.g., Ganyo v. Engen, 446 N.W.2d 683, 687 (
We, therefore, remand to the district court to address and, if necessary, correct the inconsistencies in the district court’s findings, and to weigh any competing principles that may arise as a result of those corrections.
 The referee held that, pursuant to Kruschel v. Kruschel, the pension payments that husband receives from his marital share of his pension accounts cannot be deemed income for purposes of calculating husband’s maintenance obligation. 419 N.W.2d 119, 122-23 (Minn. App. 1988) (holding that maintenance obligor’s marital property may not be considered as income for purposes of calculating obligor’s maintenance obligation, but that marital property may be considered when calculating total financial resources available to obligor and to obligee with which they can meet their own needs).
 Assuming husband does not choose to reduce his actual expenses, the district court may require husband to use the marital portion of his pension accounts to satisfy this shortfall. See Kruschel, 419 N.W.2d at 122-23 (holding that maintenance obligor’s total financial resources, including income from obligor’s marital-property award, must be considered in evaluating obligor’s ability to meet his or her own needs). But as noted above, the district court cannot consider husband’s marital portion of his pension accounts as income when calculating husband’s maintenance obligation. Id.
 Whether to reopen the record on remand rests within the district court’s discretion.