This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
In re the Marriage of:
Loren Helen Faibisch, petitioner,
Filed August 21, 2007
Affirmed; motions denied
Ramsey County District Court,
File No. F2-97-487
Shellie L. Lundgren, Grostyan and Associates
John M. Jerabek, Jessica L. Kramer, Neimi, Barr & Jerabek, P.A., 510 Marquette Avenue, Suite 200, Minneapolis, MN 55402-1121 (for respondent)
Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.
Appellant-mother Loren Faibisch argues that the district court should have awarded her attorney fees, held an evidentiary hearing on her motion to modify maintenance, and increased and made permanent her maintenance award. She also moves for attorney fees on appeal. Respondent-father Manuel Esguerra moves this court to strike parts of mother’s brief. We affirm the district court and deny both parties’ motions.
The judgment dissolving the parties’ marriage awarded appellant physical custody of the parties’ child and reserved spousal maintenance. Appellant later moved for $750 in permanent monthly maintenance. The district court’s November 2005 order adopted a child-support obligation set by a child support magistrate (CSM) and denied appellant’s maintenance motion, but awarded appellant $199 in temporary monthly maintenance without identifying when maintenance was to end. Respondent later moved the district court to set a maintenance termination date. Appellant moved for $750 permanent monthly maintenance or for the duration of her award to be set at 25 years. In July 2006, the district court denied appellant’s motion, set May 30, 2007 as the maintenance termination date, and denied both parties’ motions for attorney fees. This appeal follows. Respondent moves to strike part of appellant’s brief, and appellant moves for attorney fees on appeal.
The disputed parts of appellant’s brief are consistent
with the record. We generally will not base
a decision on matters outside the record on appeal or consider matters not
received in evidence below. See Thiele
v. Stich, 425 N.W.2d 580, 582-83 (
In a proceeding under chapter 518, a district court “shall” award need-based attorney fees if the fees are needed for a party’s good-faith assertion of rights, the payor can pay the fees, and the recipient cannot. Minn. Stat. § 518.14, subd. 1 (2006). The district court denied appellant’s motion for need-based attorney fees, ruling, based on its adoption of the income and expense figures in the CSM’s order, that respondent lacked the ability to pay a fee award. The CSM found that respondent had reasonable monthly expenses (not including maintenance and support) of $1,866 and net monthly income of $2,348.
Respondent’s submissions to the CSM
suggested that appellant’s net monthly income was $2,651. Appellant argues that the denial of her
motion for attorney fees is based on an understatement of respondent’s ability
to pay. Appellant also argues that the
finding of respondent’s expenses fails to consider that respondent’s current
wife should share expenses with him. But
the CSM, in addressing respondent’s expenses, reduced the figure claimed by
county child-support staff by $271 before finding
“[respondent’s] monthly living expenses are $1,866 for himself and the child.” Because appellant’s challenges to the CSM’s findings are arguments that those findings are incorrect, her arguments are an improper collateral attack on the CSM’s ruling. See Nussbaumer v. Fetrow, 556 N.W.2d 595, 599 (Minn. App. 1996) (stating that Minnesota does not permit collateral attack of facially valid judgments and that judgments alleged to be merely erroneous or founded on nonjurisdictional defects are “not subject to attack”), review denied (Minn. Feb. 26, 1997); see also Dieseth v. Calder Mfg. Co., 275 Minn. 365, 370, 147 N.W.2d 100, 103 (1966) (stating that “[e]ven though the decision of the trial court in the first order may have been wrong, if it is an appealable order it is still final after the time for appeal has expired”). Respondent’s net monthly income ($2,348), less reasonable monthly expenses ($1,866), less monthly child support ($293.50), less monthly maintenance ($199) leaves respondent with a $10.50 monthly deficit. He lacks the ability to pay the $1,217.03 in attorney fees sought by appellant. We affirm the denial of appellant’s motion for attorney fees.
Appellant moved for attorney fees on appeal under Minn.
Stat. § 518.14, subd. 1. While that
provision allows awards of both need-based and conduct-based fees, appellant
does not identify the type or types of fees she seeks. Respondent’s inability to pay precludes an
award of need-based fees. Respondent did
not file a notice of review or unreasonably contribute to the length and
expense of the appeal. And while his
motion to strike was unsuccessful, it was based on a legitimate argument. Thus, an award of conduct-based fees is
While the caption of one argument in appellant’s brief
states that the district court should have held an evidentiary hearing on her
motion to modify maintenance, the associated text argues only that the district
court should have kept the record open to receive additional submissions from appellant. Unbriefed issues are waived. In re
Olson, 648 N.W.2d 226, 228 (
Appellant argues that, under Mathias v. Mathias, 365 N.W.2d 293 (
Whether to modify maintenance is discretionary with the
district court, and its decision will not be reversed absent a clear abuse of
that discretion, which occurs if the district court resolves the matter in a
manner contrary to logic and the facts on record. Rutten
v. Rutten, 347 N.W.2d 47, 50 (
With respondent’s monthly deficit of $10.50, his inability to pay additional maintenance is impaired. Appellant argues that the district court failed to fully consider her health and job-loss in addressing her ability to support herself.
The district court noted appellant’s assertions that she received $1,199 in assistance from the state on June 22, 2005, and that she did not expect to receive any benefits in the future. The district court then stated:
[Appellant] provides no documentation to
support her assertion that she would not be receiving those funds from the State
We defer to the district
court’s determination that appellant’s assertions on this subject are not
credible. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (
After reciting appellant’s allegations about her job loss
and her resulting $800 decrease in monthly income, the district court rejected appellant’s
argument, noting, consistent with caselaw, that appellant had not adequately
documented her assertions. See Eisenschenk
v. Eisenschenk, 668 N.W.2d 235, 243 (
Benefits of $1,199, plus $800 in employment income, plus
$199 in maintenance totals $2,198. The
district court found appellant’s reasonable monthly expenses to be $2,190. The $199 monthly maintenance award to
appellant was easily within the range of reasonable discretion. See
Lyon v. Lyon, 439 N.W.2d 18, 22 (
The district court “shall” award permanent maintenance, leaving the award open for modification, if there is uncertainty about the necessity of permanent maintenance. Minn. Stat. § 518.552, subd. 3 (2006); see Minn. Stat § 645.44, subd. 16 (2006) (stating “‘[s]hall’ is mandatory”). Given appellant’s current monthly ability to support herself, the lack of information about her attempts to find employment, the fact that she previously received monthly benefits from the state greater than those she currently receives, and the district court’s belief that appellant is eligible for similar benefits, the record does not show serious uncertainty about her ability to support herself.
Affirmed; motions denied.
 The district court, possibly misreading the CSM’s order, understated respondent’s monthly income by $15. Because use of the correct figure would not alter our rulings, we will not remand on this point. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis technical error).
We reject any argument that, because the CSM’s order set a temporary support
obligation, the prohibition on collateral attacks on prior final rulings does
not apply. Because the district court’s
November 2005 order adopted the support obligation set by the CSM, the CSM’s
temporary ruling become final as a result of the November 2005 order. And not only was the November 2005 order not
appealed, but its omission of a termination date for its “temporary”
maintenance award does not render it nonfinal.
Cf. Gales v. Gales, 553 N.W.2d 416, 418 (
The CSM’s order states that mother, while not receiving benefits at the time of the CSM’s order, previously received benefits of $1,390 per month.