This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






In re the Marriage of:


Sharon Ann Kimball, petitioner,





Barney Edward Kimball,



Filed February 27, 2007


Worke, Judge


Anoka County District Court

File No. F2-95-4373


Brian K. Flakne, Flakne Law Offices, P.A., 9304 Lyndale Avenue South, Bloomington, MN 55420 (for respondent)


Timothy A. Costley, Costley Law Firm, 609 First Avenue, P.O. Box 340, Two Harbors, MN 55616 (for appellant)


            Considered and decided by Dietzen, Presiding Judge; Worke, Judge; and Crippen, Judge.[*]

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from the denial of appellant’s motion to modify his spousal-maintenance obligation upon his retirement, appellant argues that (1) his retirement constituted a substantial change in circumstances justifying a modification; (2) a correct application of the factors described in Richards v. Richards, 472 N.W.2d 162, 165 (Minn. App. 1991), shows that the findings that appellant retired in bad faith and is voluntarily unemployed are unsupported by the record; and (3) the record does not otherwise show bad faith by appellant.  We affirm.     


            Appellant Barney Edward Kimball argues that the district court’s findings in denying his motion to reduce his spousal maintenance and granting respondent Sharon Ann Kimball’s motion to modify spousal maintenance are not supported by the record.  Appellant did not move for amended findings or for a new trial in the district court before filing this appeal.  When there has been no motion for amended findings or for a new trial, review is limited to whether the evidence supports the findings and whether the findings support the conclusions and judgment.  Erickson v. Erickson, 434 N.W.2d 284, 286 (Minn. App. 1989).           

            An order for maintenance may be modified upon a showing of, among other things, substantially increased or decreased gross income or substantially increased or decreased need of a party.  Minn. Stat. § 518A.39, subd. 2(a) (2006).  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 (2006), as they exist at the time of the motion.  Minn. Stat. § 518A.39, subd. 2(d) (2006).  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 district court addressed each of these factors in denying appellant’s motion.  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).  Here, both parties moved to modify spousal maintenance.  The district court denied appellant’s motion finding that appellant had failed to meet his burden of proof, and granted respondent’s motion finding that she had met her burden.

            Pursuant to the parties’ amended judgment and decree, appellant was ordered to pay respondent permanent spousal maintenance.  In May 2005, appellant retired at the age of 59 and made his last spousal-maintenance payment.  In August 2005, the district court found appellant in contempt for his failure to pay spousal maintenance and scheduled an evidentiary hearing on the parties’ motions.  The district court granted respondent’s motion to modify spousal maintenance, finding that there had been a substantial decrease in respondent’s income and a substantial increase in her need, rendering the prior award unreasonable and unfair.  The district court also found that appellant was voluntarily unemployed in bad faith and because he provided scant evidence of his current income, the district court imputed income in the amount listed in the October 1998 order and increased appellant’s monthly spousal-maintenance obligation. 

            Appellant argues that the district court’s finding addressing the elements necessary to find bad faith retirement is clearly erroneous.  With regard to bad faith retirement, this court has stated, “when an obligee raises a colorable claim of bad faith, an obligor must show by a preponderance of the evidence that a decision to retire early was not primarily influenced by a specific intent to decrease or terminate maintenance.”  Richards v. Richards, 472 N.W.2d 162, 165 (Minn. App. 1991).  Whether an obligor’s early retirement is in bad faith depends on a number of factors, including: the obligor’s health and employment history, the parties’ expectations regarding early retirement at the time of dissolution, and the employer’s policies and the general economic conditions prevailing at the time of retirement.   Id.

            The district court’s findings and conclusions are supported by the evidence.  The district court found that appellant had retired in bad faith because he “presented no evidence that he has any current health problems which prevent him from working full-time” and that he “presented no evidence of any managerial policy that may have influenced his decision to retire nor did he present any evidence of any economic conditions affecting his decision.”  The district court further found that appellant’s claim that he is unable to work due to health reasons is not supported by the evidence.  Appellant retired at the age of 59, the earliest possible time.  There was no managerial retirement policy requiring him to retire at age 59, and despite his allegations that he could no longer work full-time due to health problems, appellant presented no evidence to support this claim.  Further, while appellant had a cancerous kidney removed in 2003, he continued to work full-time until the date of his retirement.  Appellant also essentially retired without any notice to respondent.  Appellant’s argument that he did not move to reduce his spousal-maintenance obligation prior to retiring because he was advised by his attorney that the court calendars were too backed up and he would not get on the calendar before he retired is not a sufficient reason to stop paying spousal maintenance in violation of the court order.  Respondent’s only source of support is social security and appellant’s spousal-maintenance payments.  Further, appellant presented no evidence to support his argument that he is living off of his pension, savings, and personal assets awarded to him in the decree.  Finally, the district court determined that appellant’s testimony that he did not retire to avoid his spousal-maintenance obligation was not credible.  This court gives deference to the district court’s opportunity to assess the credibility of witnesses.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). 

            Appellant also argues that he had no opportunity to rebut a claim of bad faith because it was not raised by respondent, but rather first appeared in the district court’s order.  “[W]hen an obligee raises a colorable claim of bad faith, an obligor must show by a preponderance of the evidence that a decision to retire early was not primarily influenced by a specific intent to decrease or terminate maintenance . . . .”  Richards, 472 N.W.2d at 165.  Even if appellant had no notice of a colorable claim of bad faith, the issue of whether appellant retired “early” was discussed at length at the evidentiary hearing, and his lack of notice does not negate the fact that appellant voluntarily chose to retire and he was physically capable of continued employment in the same or similar position.

            Based on a review of the record, the district court’s findings are supported by the evidence.  Also, the district court’s conclusion that appellant was voluntarily unemployed and had not met his burden of proving by a preponderance of the evidence that his decision to retire early was not primarily influenced by a specific intent to decrease or terminate his spousal-maintenance obligation is supported by the findings. 


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