This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Brenda Lee Johnson,
f/k/a Brenda Lee
Jeffrey Thomas Lesewski,
Washington County District Court
File No. F0-99-2730
James J. Lawton, III, 1100 West Seventh Street, St. Paul, MN 55102 (for respondent)
Brian L. Sobol, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for appellant)
Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.
Appellant-husband challenges the district court’s decision to modify respondent‑wife’s spousal-maintenance award, arguing that wife failed to establish a substantial change in circumstances rendering the existing maintenance award unreasonable and unfair. We reverse.
The May 2000 judgment and decree dissolving the marriage of appellant Jeffrey Lesewski and respondent Brenda Johnson awarded Johnson sole physical custody of the parties’ four children, found that she was unemployed and had reasonable monthly expenses of $4,523.45, and found that Lesewski had a monthly net income of $8,491.98 and reasonable monthly expenses of $3,400. A stipulated provision of the judgment and decree awarded Johnson temporary rehabilitative spousal maintenance for six years, which the parties anticipated would permit Johnson to attend school, become certified as a medical transcriptionist, and become self-supporting. The stipulated provision required Lesewski to pay Johnson monthly spousal maintenance of $1,800, with periodic incremental decreases during the six-year term. The parties stipulated that spousal maintenance would terminate on April 30, 2006.
In 2002, Lesewski moved to decrease his spousal-maintenance obligation. The district court granted the motion, finding that Lesewski’s monthly net income had decreased by approximately $3,000, which constituted a substantial change in circumstances rendering the existing maintenance obligation unreasonable and unfair. Lesewski’s monthly maintenance obligation was reduced to $1,000. When the district court reduced the spousal maintenance, Johnson remained unemployed with monthly expenses of $4,523.45. But she was expected to complete school by fall 2003.
In July 2003, Lesewski again moved to decrease his spousal-maintenance obligation, and the district court denied the motion. Johnson was diagnosed with breast cancer in March 2005. In March 2006, Johnson moved to modify spousal maintenance from temporary to permanent and to increase the monthly amount to $1,500. Lesewski filed a counter-motion to terminate spousal maintenance as of April 30, 2006, as stipulated under the judgment and decree.
Based on Johnson’s 2005 IRS W-2 form, the district court determined that Johnson has an annual net income of $8,157.30, or $680 per month, and reasonable monthly expenses of $4,749.58. The district court found that Lesewski’s monthly net income fluctuates between $5,500 and $6,000, and his reasonable monthly expenses are $2,975. Based on these findings, the district court granted Johnson’s motion to modify spousal maintenance by making it permanent until Johnson remarries, dies, or further order of the district court and increasing the monthly amount to $1,200. 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 (
When seeking a
modification of spousal maintenance, the moving party must demonstrate a
substantial change in circumstances that makes the current maintenance award
unreasonable and unfair. Minn. Stat.
§ 518.64, subd. 2(a) (2004); Tuthill v. Tuthill, 399 N.W.2d 230, 231-32 (
In granting Johnson’s motion, the district court found that, contrary to the expectations of the parties and the district court when the judgment was entered, Johnson is now unable to become self-supporting. Accordingly, there is a substantial change in circumstances rendering Johnson’s existing temporary maintenance award unreasonable and unfair. See Hecker v. Hecker, 568 N.W.2d 705, 709-10 & n.2 (Minn. 1997) (holding that failure to attain status assumed by judgment can be substantial change in circumstances justifying modification of maintenance). Lesewski argues that this determination is not supported by the record. We agree.
The district court’s finding that Johnson “had health issues over the past year and thus far has not found employment that enables her to become self-supporting” is without support in the record. Although it is undisputed that Johnson has been treated for breast cancer, the district court did not address, nor does the record show, what effect, if any, her diagnosis, treatment, and prognosis have on her ability to become self-supporting.
Johnson’s attorney averred at the modification hearing that Johnson’s medical condition prevented her from working for “huge parts” of 2005. But her medical records indicate otherwise. After her March and April 2005 surgeries and May 2005 chemotherapy treatment, she was instructed to resume normal activity “as tolerated.” In April 2005, Johnson was instructed to follow supplemental-care instructions, which were not included in the record. After reconstructive surgery in November 2005, Johnson was advised that she could resume work in three days, and following a December 2005 procedure, she was discharged with “no limitations.”
affidavit asserts that she “will have another surgery in the next few months,” but
she failed to provide medical evidence or expert affidavit testimony to address
the length of recovery; the need for ongoing treatment, if any; and the impact
on her ability to work. We must base our
decision on “evidence actually presented to the [district] court and shown by
the record on appeal.” W. World Ins. Co. v. Anothen, Inc., 391
N.W.2d 70, 73 (
Lesewski argues that the district court’s determination that Johnson is not self-supporting also is erroneous because the district court understated Johnson’s net income. The record does not contain Johnson’s individual income tax returns or pay stubs. But based on Johnson’s 2005 IRS W-2 form, which does not indicate the number of hours she worked, the district court found that Johnson’s annual gross income is $10,235.09. In doing so, the district court fails to reconcile this determination with its finding, based on Johnson’s 2006 affidavit testimony, that she works between 35 and 40 hours each week for $13 an hour (resulting in a minimum annual gross income of $23,660). Nor did the district court address the fact that this annual income results in a monthly income level that is greater than the rehabilitative maintenance that Johnson was receiving when she moved to modify the award.
addition, Lesewski contends that the district court’s income determination for Johnson
was deficient because it failed to assess whether Johnson had rental income
and, if so, the amount of that income. The
financial resources of the party seeking maintenance include income produced by
the party’s assets. Fink v. Fink, 366 N.W.2d 340, 342 (
When viewing the evidence in the light most favorable to the district court’s decision to modify spousal maintenance, the record does not support the district court’s determination that there has been a substantial change in circumstances that renders the maintenance award unreasonable and unfair. Accordingly, the district court’s decision to modify the spousal-maintenance award was an abuse of discretion.
 The 2004 version of Minn. Stat. §518.64 governed modification of both child support and spousal maintenance. In the 2006 revision of the child-support statutes that became effective January 1, 2007, Minn. Stat. §518.64, subd. 2 (2004), was amended and renumbered as Minn. Stat. § 518A.39 (2006). Because this maintenance appeal does not involve child support, we cite the 2004 version of the statute.
 In light of our decision, we do not reach Lesewski’s argument that the district court’s findings as to Lesewski’s reasonable monthly expenses were clearly erroneous.
 We observe that Johnson did not seek, as an alternative, the reservation of maintenance should her condition require spousal maintenance in the future. See Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) (reversing when party argued that district court abused its discretion by not reserving question of maintenance should health condition recur). We, therefore, decline to address the issue.