This opinion will be unpublished and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:


Marsha Carol Sewell,

f/k/a Marsha Carol Danielson Borth, petitioner,





Verdell Fredrick Borth,



Filed ­­­December 5, 2006


Dietzen, Judge


Carver County District Court

File No. 10-F2-96-001501


Kathryn A. Graves, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, suite 4150, Minneapolis, MN 55402 (for respondent)


John G. Westrick, Kirk M. Anderson, Westrick & McDowall-Nix, P.L.L.P., 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for appellant)


            Considered and decided by Ross, Presiding Judge; Willis, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N




            In this post-dissolution proceeding, appellant challenges the district court orders (1) denying his motion to reopen the judgment to consider new evidence; (2) denying his motion to modify spousal maintenance; and (3) awarding conduct-based attorney fees to respondent.  Because the district court properly applied the law and did not abuse its discretion, we affirm.


Appellant Verdell Frederick Borth and respondent Marsha Carol Sewell, formerly known as Marsha Borth,  married in 1980 and dissolved their marriage in 1997.  At the time of the dissolution proceedings, Borth was employed by Commercial Recovery Corporation as general counsel in charge of collections, and Sewell worked as a certified registered nurse anesthetist.

            The divorce decree awarded custody of the children to Sewell.  Based on his time-of-dissolution income of $36,000 per year, the district court ordered Borth to pay $768 per month for child support and $108 per month for daycare expenses.  Sewell, whose annual income was $50,649, was ordered to pay $800 per month in temporary spousal support, an obligation that would terminate when Borth turned 62.  Both parties appealed the decree, and this court affirmed.  Borth v. Borth, No. C5-98-529 (Minn. App. Dec. 22, 1998).  Litigation between the parties continued, with both parties seeking to reduce or eliminate their support obligations and contesting tax credits, visitation, and the division of the children’s medical expenses.

            In January 2002, Borth moved to reduce or eliminate his child-support obligation and to make his temporary spousal maintenance award permanent, arguing that he was unable to work.  In February 2002, the district court denied Borth’s motion, finding that Borth was “intentionally underemployed.”  The court stated that Borth “was well aware that the maintenance was temporary and would stop when he became eligible for social security.”  The court also noted that Borth “need[ed] to find employment to deal with these issues” and concluded that

[Borth] has no child support obligation (after factoring the maintenance he receives) or children in his custody.  [Borth] was awarded $75,000 in cash at the time of the parties’ divorce, plus 1/2 of the parties’ retirement accounts and various personal property with a good deal of value.  The Court finds it to be a specious argument that [Sewell] should somehow be paying more maintenance to [Borth] than she already is because [Borth] has failed to find a job commensurate with his abilities.


This court affirmed.  Borth v. Borth, No. C0-02-816 (Minn. App. Apr. 1, 2003).

            In March 2004, a month before his temporary-maintenance award was scheduled to terminate, Borth again sought to make his temporary award permanent, arguing that he was permanently disabled and incapable of employment.  The court denied the motion, finding that Sewell did not have the financial ability to extend Borth’s award and concluded, that even if Borth had met the threshold requirements for spousal maintenance, termination of spousal maintenance was not unreasonable and unfair because Borth had self-limited his income.  The court awarded Sewell $5,000 for conduct-based attorney fees, finding that Borth refused to respond to Sewell’s discovery.  Judgment was entered March 1, 2005. 

Approximately three weeks after the district court’s March 2005 order, Borth received a letter from the Social Security Administration (SSA), which concluded that he was medically disabled as of January 1, 2004, but not before that time, as his impairments “were not severe enough to be disabling.”  The letter stated that the SSA had not yet made its determination whether Borth met the SSA’s nonmedical requirements for disability benefits, but that a second letter would soon follow explaining its decision.  The SSA concluded that Borth was able to work before January 1, 2004, but it did not address whether or not he was legally disabled from working after that date.

            Claiming that the letter from the SSA constituted newly discovered evidence, Borth moved to reopen the judgment under Minnesota Rule of Civil Procedure 60.02(b) to consider the letter.  The district court denied the motion, concluding that the SSA determination did not “provide any further medical record or opinion which [was] contrary to the previous decisions of the Court” and that the letter “support[ed] the Court’s previous findings in the matter.”  This appeal followed.



On appeal, Borth argues that the district court erred in denying his rule 60.02(b) motion to consider newly discovered evidence.  But rule 60.02(b) provides no basis for reopening a dissolution judgment and decree or a maintenance order.  See Shirk v. Shirk, 561 N.W.2d 519, 522 (Minn. 1997) (“The sole relief from the judgment and decree lies in meeting the requirements of Minn. Stat. § 518.145, subd. 2.”).  Instead, Minn. Stat. § 518.145, subd. 2 (2) (2004), governs the reopening of a dissolution judgment and decree or order.  Id.  Like rule 60.02(b), the statute permits a judgment or order to be reopened on the basis of “newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under the rules of civil procedure, rule 59.03.”  Minn. Stat. § 518.145, subd. 2 (2); Minn. R. Civ. P. 60.02(b).  Although Borth’s motion to reopen for consideration of newly discovered evidence did not comply with the specific requirements of section 518.145,[1] the district court ruled on the merits of the motion to reopen.  Because the district court, in the exercise of its discretion, ruled on the motions in the interest of justice, we conclude that its decision is reviewable.  See Minn. R. Civ. App. P. 103.04 (stating appellate courts have discretion to address any issue that justice requires); see also Putz v. Putz, 645 N.W.2d 343, 350 (Minn. 2002) (stating appellate courts can take “any action as the interest of justice may require”) (quotation omitted).

A decision not to reopen a judgment and decree will not be disturbed absent an abuse of discretion.  Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996).  To warrant reopening a judgment, newly discovered evidence must be relevant, admissible, and “likely to have an effect on the result.”  Turner v. Suggs, 653 N.W.2d 458, 467 (Minn. App. 2002) (addressing rule 60.02(b), which is identical to the new-evidence provision in Minn. Stat. 518.145, subd. 2).  The newly discovered evidence “must not be merely collateral, impeaching, or cumulative.”  Id. 

The district court denied Borth’s motion to consider new evidence, reasoning that the letter “support[ed] the Court’s previous findings in this matter” and “[did] not provide any further medical record or opinion which [was] contrary to the previous decision of the Court.”  We agree.

To modify maintenance, Borth must show a substantial change in circumstances rendering the existing award “unreasonable and unfair.”  Minn. Stat. § 518.64, subd. 2 (2004); Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977).  Here, the SSA determined that although Borth was “medically disabled” as of January 1, 2004, his medical condition did not prevent him from working before that date.  And the SSA stated that it had not determined whether Borth met the SSA nonmedical requirements for being legally disabled.  The SSA further noted that “[b]ased on [his] age, education, and past work experience, [Borth] could have done other work.”  These conclusions are consistent with the district court’s finding that Borth had the opportunity to find gainful employment, but instead self-limited his income. 

Because the letter did not show a substantial change in circumstances that rendered the termination of appellant’s temporary maintenance unfair and unreasonable, the court did not abuse its discretion by denying Borth’s motion to reopen.  See Turner, 653 N.W.2d at 467 (stating that to warrant reopening a judgment, newly discovered evidence must be “likely to have an effect on the result.”).


Borth argues that the district court erred in denying his motion to modify spousal maintenance.  In determining whether a substantial change in circumstances has occurred, courts may consider several factors, including

(1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party or the child or children that are the subject of these proceedings; (3) receipt of assistance under the AFDC program . . .; (4) a change in the cost of living for either party as measured by the Federal Bureau of Statistics, any of which makes the terms unreasonable and unfair . . . .


Minn. Stat. § 518.64, subd. 2.  Once an obligor establishes that he is entitled to modification, the needs of the spouse receiving maintenance must be balanced against the financial condition or ability to pay of the spouse providing maintenance.  Dougherty v. Dougherty, 443 N.W.2d 193, 194 (Minn. App. 1989).  The decision to modify maintenance is discretionary with the district court.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  But a district court should cautiously exercise its discretion to modify a support order, and “any alteration must be based on a clear showing of a substantial change of circumstances in one or both of the parties.”  Sieber v. Sieber, 258 N.W.2d at 757.  “Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.”  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

The district court determined that the termination of spousal maintenance was not unreasonable and unfair, reasoning that Borth was capable of obtaining gainful employment, but instead chose to self-limit his income.  In this regard, the district court found that Borth, a lawyer, “had demonstrated by the numerous court filings made in connection with his current motion . . . that he is capable of performing legal work.  He has never been late for court, and has been able to adequately represent himself in these proceedings.”  The district court also considered Sewell’s ability to pay and found that her income did not support a modification.  The record amply supports the district court’s findings and conclusion.

Borth further argues that his failure to become rehabilitated for gainful employment constituted a substantial change in circumstances. The failure to become rehabilitated may constitute a changed circumstance for purposes of Minn. Stat. § 518.64, subd. 2, when the recipient has not been able to achieve the status anticipated by the decree.  Katter v. Katter, 457 N.W.2d 750, 753 (Minn. App. 1990).  Here, Borth’s maintenance award was not rehabilitative, but was intended to offset his child-support obligation.  As the court noted in its 2002 order,[2] Borth “was effectively not required to pay child support because of the maintenance trade-off,” and he “was well aware that the maintenance was temporary and would stop when he became eligible for social security.”  Because reaching self-sufficiency was not the goal of Borth’s maintenance award, his failure to become self-sufficient does not entitle him to further maintenance. 

Borth also argues that permanent spousal maintenance is mandatory when there is uncertainty about the ability of the recipient to become self-sufficient.  Minn. Stat. § 518.552, subd. 3 (2004); Dobrin v. Dobrin, 569 N.W.2d 199, 202-03 (Minn. 1997).  But failure to achieve self-sufficiency created by failure to work does not justify an award of permanent maintenance.  Dobrin, 569 N.W.2d at 203.  We therefore conclude that the court did not abuse its discretion by denying Borth’s motion to modify maintenance.


Borth appeals the award of conduct-based attorney fees to Sewell.  Fees may be awarded “against a party who unreasonably contributes to the length or expense of the proceeding.”  Minn. Stat. § 518.14, subd. 1 (2004).  Conduct-based fee awards must be based on conduct occurring during litigation.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).  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 v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).

            The district court awarded Sewell $5,000 for conduct-based fees, based on findings that Borth “refused to cooperate with [Sewell’s] efforts to seek discovery in this case, and violated this Court’s Order of June 15, 2004, which required him to provide his mental health records, etc.”  It found that Sewell incurred fees and costs of $18,878 in connection with Borth’s motion to extend his spousal maintenance, including more than $7,000 for discovery.  

Here, Borth failed to comply with court-ordered discovery.  Despite placing his medical condition in controversy, Borth refused to submit to a court-ordered independent medical examination or provide his medical records.  Even after this court denied his petition for a writ of prohibition and the district court once again ordered Borth to comply with discovery, Borth renewed his request that his medical records not be released.  On this record, the district court did not abuse its discretion in concluding that Borth’s repeated attempts to block court-ordered discovery on an issue that he put into controversy unreasonably contributed to the length and expense of the proceeding.  Minn. Stat. § 518.14, subd. 1. 

Borth argues that the court’s findings that he “made no reasonable effort to seek employment when he lost his job in 2000, refused to seek alternative employment, and lived far beyond his means, dissipating the share of the marital estate awarded him” are not within the scope of the litigation.  See Geske, 624 N.W.2d at 819 (“conduct-based attorney fees must be awarded for conduct during litigation”) (emphasis in original).  Because the discovery violations are independently sufficient to justify the award, we need not determine whether the court’s other reasons also support the award.  See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (“we will not reverse a correct decision simply because it is based on incorrect reasons.”)

Borth also argues that because he did not act in bad faith during the proceedings, the court erred by awarding conduct-based fees.  But “[w]hile bad faith could unnecessarily increase the length or expense of a proceeding, it is not required for an award of conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1.”  Geske, 624 N.W.2d at 818-819 (emphasis in original).  Hence, whether Borth acted in bad faith is not determinative when, as here, he unreasonably contributed to the length and expense of the proceeding. 


[1] Both Minn. Stat. § 518.145, subd. 2 (2), and Minn. R. Civ. P. 60.02(b) provide that a district court may, upon such terms as are just, relieve a party from a judgment for newly discovered evidence that could not have been discovered in time to move for a new trial under Minn. R. Civ. P. 59.03, or, in this case, 30 days after the service of notice of filing of the district court order.  Here, the discovery of the “new evidence” and the filing of the motion to reopen occurred within 30 days after service of notice of filing.  Thus, the motion does not meet the specific requirements of Minn. Stat. § 518.145.

[2] The same judge issued the original order and reviewed the petition for modification in 2002.