This opinion will be unpublished and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:

Larry Thorvold Vee, petitioner,


Cheryl Yvonne Vee,


Filed December 31, 2007

Affirmed in part and remanded in part; motion remanded

Wright, Judge


Anoka County District Court

File No. F6-96-7559



Elizabeth A. Schading, Barna, Guzy & Steffen, 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Minneapolis, MN  55433 (for appellant)

Fred J. Ojile, Messinger & Ojile, 950 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN  55415 (for respondent)



            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.



U N P U B L I S H E D   O P I N I O N


Appellant-wife challenges the district court’s denial of her motion to modify respondent‑husband’s spousal-maintenance obligation, arguing that she established a substantial change in circumstances, thereby rendering the existing maintenance award unreasonable and unfair.  Appellant also challenges the district court’s decision to deny attorney fees, and she seeks attorney fees and costs on appeal.  We affirm in part and remand in part.  We also remand wife’s motion for appellate attorney fees. 


            Appellant-wife Cheryl Vee and respondent-husband Larry Vee ended their 34-year marriage in 1998.  When they divorced, husband’s net monthly income was approximately $3,600, and his reasonable monthly living expenses were $2,000.  Wife’s net monthly income was $935.97, and her reasonable monthly living expenses were $2,828. 

            Although it took several years and substantial negotiation, the parties eventually reached a comprehensive settlement.  Under this agreement, wife was awarded monthly spousal maintenance of $1,800.  Wife also received a 50-percent interest in husband’s retirement benefits as a property settlement.  The agreement also provided:

When [husband] reaches the age of 55, [wife] shall elect to receive pension payments(s) at which time [husband]’s spousal maintenance obligation shall be the difference between the monthly amount of [wife]’s pension payment(s) and the $1,800.00 monthly obligation.  [Husband]’s obligation shall continue until he reaches the age of 65, or until age 62 if he is retired from his employment with the Minnesota Cement Masons.


In approving this agreement, the district court found it to be “a fair arrangement” that the parties had “worked very hard” to reach. 

            Husband turned 55 in June 1999, triggering the pension payments and the corresponding reduction in husband’s out-of-pocket maintenance obligation.  Wife began receiving monthly pension benefits of $1,311.65, requiring husband to pay out of pocket $488.35—the remainder of the $1,800 maintenance obligation.

In November 2003, however, the company administering husband’s pension advised wife that it miscalculated her monthly pension benefit and had been overpaying her by $611.50 monthly, totaling $32,409.50.[1]  Wife’s monthly pension benefits, therefore, were “reduced” to $700.15, which was the amount she would have been receiving had there been no initial miscalculation. Under the agreement, husband was required to make up the difference as out-of-pocket maintenance. 

            Toward the end of 2005, husband advised wife of his intent to retire in January 2006.  But he agreed that he was obligated to continue paying maintenance until he reached the age of 62 in June.  Thus, although wife would continue to receive payments from husband’s pension after his 62nd birthday, husband no longer would be obligated to pay any maintenance out of pocket.  Asserting changed circumstances, wife moved to modify husband’s maintenance obligation and for attorney fees.

            The district court denied wife’s motion, finding that wife failed to establish a significant change of circumstances that warranted modification.  The district court reasoned that the parties knew when they divorced that “certain pension payments would end, [husband] would eventually retire, and the amount of retirement funds available would vary depending on the tenure of [husband]’s employment.”  Wife’s request for attorney fees was summarily denied without particularized findings.  This appeal and a motion for appellate attorney fees followed. 



Wife argues that the district court clearly erred by finding that there were no changed circumstances that warranted modification of husband’s maintenance obligation.  A district court has broad discretion in deciding whether to modify a party’s maintenance obligation.  Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. App. 2004), review denied (Minn. Sept. 28, 2005).  We will not disturb the district court’s decision absent an abuse of that discretion.  Schallinger v. Schallinger, 699 N.W.2d 15, 22 (Minn. App. 2005).  Such an abuse of discretion occurs when the district court’s decision “is against logic and the facts on record.”  Kielley, 674 N.W.2d at 775 (quotation omitted).

Before the district court can modify a maintenance award, the moving party must provide “clear proof” of a “substantial change of circumstances” since the maintenance obligation was established that renders the award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2004); Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).   Such circumstances include a substantial increase or decrease in a party’s “earnings” or a substantial increase in a party’s needs.  Minn. Stat. § 518.64, subd. 2(a).  When a stipulated decree is at issue, the circumstances the parties originally agreed were equitable establish “the baseline circumstances against which claims of substantial change are evaluated.”  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

A district court should exercise restraint when considering a motion to modify the terms of the original decree when, as here, it embodies the parties’ agreement “fixing [their] respective rights and obligations” with regard to maintenance.  Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Although a stipulation does not completely bar subsequent modification if a party establishes the required statutory factors,[2] a district court’s reluctance to modify a stipulated decree is warranted because “it represents the parties’ voluntary acquiescence in an equitable settlement.”  Id.; Cisek v. Cisek, 409 N.W.2d 233, 237 (Minn. App. 1987) (noting that existence of stipulation is an “important consideration restraining, although not controlling, the court’s authority” to modify previous decree (quotation omitted)), review denied (Minn. Sept. 18, 1987). 

Wife argues that the pension administrator’s overpayment was a substantial change in circumstances because it reduced the maintenance husband was required to pay out of pocket.  Under the decree, wife was given a 50-percent interest in husband’s pension as a property settlement and was required to elect to receive pension payments when husband reached the age of 55.  The stipulated decree provides that, once wife began receiving pension payments, husband’s “spousal maintenance obligation shall be the difference between the monthly amount of [wife]’s pension payment(s) and the $1,800.00 monthly obligation.” 

After husband turned 55, wife began to receive monthly pension payments of $1,311.65.  Husband was therefore required to pay the remaining $488.35, representing “the difference between [$1,311.65] and the $1,800.00 monthly obligation.”  Unknown to either party, however, a pension administrator had initially miscalculated wife’s monthly payment, overpaying her by $611.50 for the first 53 months.  Had the mistake not occurred, husband would have been obligated to pay the difference between the correct amount, $700.15, and $1,800, which would have been $1,099.85.  Although a monthly reduction of $611.50 in out-of-pocket maintenance payments can be properly characterized as a windfall for husband, the district court did not abuse its discretion by determining that it did not constitute a substantial change in circumstances. 

Rather than stating a fixed amount, the parties agreed to use a simple formula for determining husband’s maintenance obligation, which is the baseline against which any changed circumstances must be measured.  Hecker, 568 N.W.2d at 709.  We first observe that, under this formula, whatever wife received in pension payments necessarily decreased husband’s out-of-pocket obligation by an equal amount.  As “the difference between the monthly amount of [wife]’s pension payment(s) and the $1,800.00 monthly obligation” becomes smaller, so does husband’s out-of-pocket obligation.  For example, if wife receives only one dollar in pension payments, husband must pay the difference between one dollar and $1,800, which is $1,799.  Conversely, if wife receives $1,799 in pension payments, husband’s obligation is only one dollar, the difference between $1,799 and $1,800.  Therefore, the monthly pension overpayment of $611.50 translated directly into a corresponding reduction in the amount husband otherwise would have been paying out of pocket.  But there also is no evidence in the record that the parties expected wife to receive any particular amount from the pension each month when the parties agreed to this arrangement in 1998.  Accordingly, the stipulated decree apparently anticipated a wide range of possible amounts by which husband’s out-of-pocket maintenance payments could be reduced. 

            We also observe that wife received the same amount of money every month regardless of the particular value of the pension payments.  Whether “the difference between the monthly amount of [wife]’s pension payment(s) and the $1,800.00 monthly obligation” is one dollar or $1,799, wife is entitled to exactly $1,800.  Thus, although the amount wife receives in pension payments directly impacts husband’s out-of-pocket obligation, the amount of spousal maintenance she is entitled to receive is fixed.   And in light of the parties’ agreement that husband was obligated to ensure that wife received this fixed amount regardless of whether he was “employed or unemployed,” the parties agreed to the reduction of husband’s out-of-pocket maintenance payments by the amount of pension payments without regard to whether husband had employment-related income available to meet this obligation.   

            Thus, the baseline against which we measure the parties’ circumstances is an equation in which wife’s award is fixed but the particular amount of husband’s obligation is variable.  The district court did not abuse its discretion because the parties’ agreement did not require husband to satisfy any particular amount of his monthly obligation out of pocket. While the monthly pension overpayment changed husband’s monthly out-of-pocket obligation, the pension payment was within the range contemplated by the parties’ agreement and had no effect on what wife actually received. 

Wife argues that the district court erroneously failed to consider the termination of husband’s maintenance obligation to be a substantial change in circumstances.   This argument is without merit.  Under the terms of the agreement, wife was awarded monthly maintenance of $1,800 “until [husband] reaches the age of 65, or until age 62 if he is retired from his employment with the Minnesota Cement Masons.”  Thus, the baseline set of circumstances explicitly contemplated that husband’s maintenance obligations would terminate.  That these circumstances have come to pass does not constitute a change at all.

Wife also contends that, in light of the termination of husband’s maintenance obligation, her failure to become self-supporting is a substantial change in circumstances.  We have recognized that “failure to achieve a status anticipated by the decree could constitute a material change in circumstances.”  Katter v. Katter, 457 N.W.2d 750, 753 (Minn. App. 1990) (citing Rydell v. Rydell, 310 N.W.2d 112 (Minn. 1981)).  As the district court observed, the original agreement embodied substantial negotiation in which the parties agreed to terms that explicitly anticipate that husband’s maintenance obligations will end no later than his 65th birthday.  However, there is no evidence in the record that the stipulated length or amount of the maintenance obligation was based on an assumption that wife would become self-supporting. Because the circumstances anticipated by the agreement are the baseline against which we measure any changes, the district court’s determination is consistent with both logic and the facts in the record.  Thus, we will not disturb the district court’s decision in this regard.

            Wife also raises numerous arguments regarding the fairness of the original agreement.  After a moving party proves that there is a substantial change in circumstances, that party also must prove that those changes render the original award “unreasonable and unfair.”  Minn. Stat. § 518.64, subd. 2(a), (b); Tuthill, 399 N.W.2d at 232.  But because the record supports the district court’s finding that wife failed to prove a substantial change in circumstances, these arguments are necessarily unavailing.


Wife maintains that the district court erroneously denied her request for attorney fees for bringing her modification motion.  A party generally may not recover attorney fees without specific authorization.    Geske v. Marcolina, 624 N.W.2d 813, 816 (Minn. App. 2001).  In a dissolution case, section 518.14 supplies a basis to award attorney fees on a motion to modify the decree.  Id.; Minn. Stat. § 518.14, subd. 1 (2006) (specifically including modification proceedings).  Fee awards under section 518.14 may be either need-based or conduct-based.  Minn. Stat. § 518.14 (2006).  Here, wife sought both types.

A district court “shall” award need-based attorney fees if it finds that (1) the fees are necessary to a party’s good-faith claim; (2) the party from whom fees are sought has the means to pay them; and (3) the party who seeks the fees does not have the means to pay them.  Id., subd. 1.  But “there is neither a mandate nor discretion to award such fees without those findings and the evidence to sustain them.”  Mize v. Kendall, 621 N.W.2d 804, 810 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001).  If the district court does not make findings on the parties’ relative financial position and need, further consideration by an appellate court cannot proceed; the district court must make the “findings necessary to exercise its discretion” before we can exercise meaningful appellate review.  See Wende v. Wende, 386 N.W.2d 271, 276 (Minn. App. 1986) (remanding district court’s denial of need-based fees without any findings).

Here, the district court did not make any finding on the statutory factors other than ordering “[e]ach party [to] be responsible for his or her own attorney[ ] fees.”  We, therefore, remand to the district court for findings addressing the statutory factors.


Wife also seeks need-based attorney fees on appeal. We have discretion to award such fees based on the same statutory factors as the district court.  LaChapelle v. Mitten, 607 N.W.2d 151, 167 (Minn. App. 2000), review denied (Minn. May 16, 2000).  Wife’s request includes costs and disbursements that may be taxed in favor of the prevailing party in accordance with Minn. R. Civ. App. P. 139.03, in addition to more than $7,000 in attorney fees.  Because we remand for findings regarding attorney fees for the district court proceedings, and because those findings would impact any award of appellate attorney fees on remand, the district court also shall address wife’s request for attorney fees incurred in this appeal.  See Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991) (stating that “[a]n award of attorney fees on remand may include fees incurred on the original motion, and fees incurred on appeal”); see also Minn. R. Civ. App. P. 139.06 1998 advisory comm. cmt. (stating that appellate court may remand question of attorney fees for appeal).

Affirmed in part and remanded in part; motion remanded.

[1] The pension administrator originally informed wife that she would not receive payments for several years in light of the overpayment.  Although the record does not indicate how the pension would account for the overpayment, wife continued to receive the “reduced” amount without being required to disgorge it.  There is likewise no indication in the record that the overpayment diminished husband’s share.

[2]As wife’s counsel has emphasized, the parties may always move for modification of a previous maintenance decree unless a stipulated provision of a previous decree affirmatively divested the district court of jurisdiction.  Loo v. Loo, 520 N.W.2d 740, 743 (Minn. 1994).  This point of law is uncontested.  But wife’s argument that the parties’ failure to affirmatively divest the district court of the jurisdiction to hear a motion to modify the decree somehow required it to modify that decree is misplaced.  That the parties did not stipulate to a jurisdictional waiver was simply a necessary condition for the district court to hear wife’s motion at all.  The district court clearly exercised that jurisdiction and ruled on the merits.  Had the parties waived jurisdiction, wife could not receive a ruling on the merits because the district court would have been unable to reach them.