This opinion will be unpublished and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:

Loren Helen Faibisch, petitioner,





Manuel Esguerra,



Filed August 21, 2007

Affirmed; motions denied

Randall, Judge


Ramsey County District Court,

Family Division

File No. F2-97-487


Shellie L. Lundgren, Grostyan and Associates PLC, Barrister Trust Building, 247 Third Avenue South, Minneapolis, MN 55414 (for appellant)


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.

U N P U B L I S H E D   O P I N I O N


            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 (Minn. 1988); Minn. R. Civ. App. P. 110.01 (defining record on appeal).  We deny respondent’s motion to strike.


            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[1].

            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”).[2]  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 inappropriate.  See Minn. Stat. § 518.14, subd. 1 (allowing conduct-based fee awards against a party unreasonably contributing to the length or expense of the proceeding).  We deny appellant’s motion for attorney fees on appeal.


            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 (Minn. 2002).  Were we to address the question under Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 491 (Minn. 1997), appellant’s argument would be unpersuasive.  Noncontempt family motions are decided without an evidentiary hearing, “unless otherwise ordered by the court for good cause shown.”  Minn. R. Gen. Pract. 303.03(d).  Here, respondent scheduled the motion hearing; he did not ask that the hearing be an evidentiary hearing, and appellant did not request an evidentiary hearing.  There was no error by the district court in not holding an evidentiary hearing.  None was requested.

            Appellant argues that, under Mathias v. Mathias, 365 N.W.2d 293 (Minn. App. 1985), the district court, in light of appellant’s release from a hospital stay, should have kept the record open after the hearing to allow her to make post-hearing submissions.  But Mathias involved whether the district court abused its discretion by not allowing reasonable discovery and whether, under then-applicable rules, an evidentiary hearing was required.  365 N.W.2d at 296-98.  Here, discovery is not at issue.  The current rules presume that no evidentiary hearing will occur and require a request for an evidentiary hearing.  We note that the hearing here occurred more than two months after appellant’s release from the hospital.  Why that amount of time was inadequate for appellant to acquire the information necessary for her argument is not explained.


            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 (Minn. 1984); see Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court has “wide discretion” in setting the amount and duration of maintenance, and absent an abuse of its discretion, its maintenance award “is final.”  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  While Minn. Stat. § 518.552 (2006) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive, and the issue is basically the recipient’s need balanced against the obligor’s financial condition.  Erlandson, 318 N.W.2d at 39-40. 

            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,[3] 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 of Minnesota at a later time.  The fact is that [appellant] can and is going to be receiving assistance from the State of Minnesota.  Nothing has been proven to change this fact.  Additionally, [appellant] could apply for social security if she believes that she cannot work due to physical or emotional health issues.


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 (Minn. 1988).  If the assumption that appellant can receive benefits is later shown to be incorrect, the incorrectness of the assumption can be argued in a future motion to modify maintenance.  See Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (stating failure of an assumption underlying a maintenance award can justify modification of that award).

            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 (Minn. App. 2003) (stating “[o]n appeal, a party cannot complain about a district court’s failure to rule in her favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question”).  The district court also found that appellant had not exhausted her opportunities for employment income, including attempts to find employment, and a discrimination suit against her former employer regarding her job loss that appellant led the district court to believe she might file.  Appellant simply has not shown that the district court’s findings on these subjects are clearly erroneous under Minn. R. Civ. P. 52.01.

            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 (Minn. 1989) (stating maintenance depends on a showing of need).


            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.

[1] 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).

[2] 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 (Minn. 1996) (noting that failure “to designate when the payments [of temporary maintenance] would end” “[effectively] awarded permanent maintenance”).  Thus, whether the CSM’s order was final or later became final as a result of the November 2005 order, the prohibition on collateral attacks applies here.

[3]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.