This opinion will be unpublished and

may not be cited except as provided by

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






Terry R. DeRohan, petitioner,


William E. DeRohan,


Filed December 31, 2007

Affirmed in part, reversed in part, and remanded

Lansing, Judge


Dakota County District Court

File No. F6-01-6537


Terence G. O’Brien, Jr., May & O’Brien LLP, 204 Sibley Street, Suite 202, Hastings, MN 55033 (for appellant)


Theresa A. Peterson, Huemoeller, Bates & Gontarek, PLC, 16670 Franklin Trail, Prior Lake, MN 55372 (for respondent)


            Considered and decided by Lansing, Presiding Judge; Wright, Judge; and Ross, Judge.

U N P U B L I S H E D   O P I N I O N


            The district court granted William DeRohan’s motion for a spousal-maintenance modification following his voluntary early retirement.  In this appeal from the modification order, Terry DeRohan challenges the district court’s determination of good faith, the admission of affidavit testimony from her former attorney, and the adequacy of the findings to support a termination of maintenance in three years.  Although the record is factually limited, we conclude that it is adequate to support the district court’s determination that William DeRohan’s retirement was in good faith and that the affidavit evidence, which is relevant primarily to procedural issues, did not result in reversible error.  But because the record contains no findings on future financial resources that would support termination of maintenance, we reverse and remand for additional findings and, if necessary, further proceedings. 


William and Terry DeRohan were married from 1974 to 2001.  When they dissolved their marriage in 2001, two of their three children had reached the age of majority, and the DeRohans stipulated to the custody and support of their minor child.  They also stipulated to property division and spousal maintenance.  Each retained his or her own pension, and the dissolution judgment referred to the pension plans as assets, noting that “the division of retirement benefits is a property settlement.”  They also agreed that William DeRohan would provide for the future support of Terry DeRohan “through the payment of permanent maintenance in the amount of $1,750 per month.”  Due to cost-of-living increases, William DeRohan’s maintenance payment was $1,826 at the time of the October 2005 modification motion. 

            At the time of dissolution, Terry DeRohan worked for United Airlines and earned a net monthly income of $2,775.12.  Her affidavit submitted in response to the 2005 modification motion stated that her employment status had changed since December 2001.  She left her job at United Airlines to assist her ailing ninety-year-old father.  She has since obtained a job at Pottery Barn, currently earns about $958 per month, and receives a net monthly pension of $2,100 from United Airlines.  Her pension will decrease to a monthly amount of $900 when she reaches the age of sixty-six in 2010.  She additionally stated that her expenses have increased since the dissolution, at least in part, due to her attempts to assist the DeRohans’ son who is struggling with drug and alcohol dependency.  She estimated her total monthly expenses to be $4,007. 

            William DeRohan, at the time of dissolution, worked for Northwest Airlines (Northwest) and earned a net monthly income of $6,738.  He also received an annual bonus and a monthly payment of $520.16 from a United Airlines Retirement account.  In August 2005 he retired from his position at Northwest, and in October 2005 he filed the motion to modify his spousal-maintenance obligation.  In support of his motion, he submitted an affidavit stating that his only income consisted of monthly social-security payments of $1,449.  He estimated that his monthly expenses were $5,667. 

In his October 2005 affidavit, William DeRohan did not provide a reason for his early retirement.  Terry DeRohan’s memorandum, in response to the motion, emphasized William DeRohan’s failure to state his reasons for retiring early.  In her accompanying affidavit she acknowledged that “many Northwest Airlines employees retired early in order to preserve their pensions.”  

            The DeRohans initially attempted to resolve the modification dispute.  William DeRohan submitted an affidavit stating they had reached an agreement in early 2006 that he would pay Terry DeRohan $500 a month until she reached sixty-six years of age.  Terry DeRohan disputed the settlement and submitted a memorandum stating that she had never accepted a settlement offer.  The district court denied William DeRohan’s motion to enforce the alleged settlement.  As part of this dispute, Terry DeRohan submitted an affidavit from her former attorney stating that Terry DeRohan had not authorized him to settle or compromise the spousal-maintenance dispute but that during the negotiations he had told Terry DeRohan that he thought the settlement offer was reasonable and that she should accept the offer. 

            Following the denial of the motion to enforce the alleged settlement, William DeRohan submitted a second affidavit again stating that his only income is a monthly social-security payment of $1,449.  The affidavit, however, also refers to “financial resources” of “retirement of $2,500.”  The affidavit also states that his monthly expenses, excluding spousal maintenance, total $5,667 and that his total monthly shortfall amounts to more than $2,000. 

            The district court conducted a hearing on the modification motion and issued an order modifying the original judgment by decreasing William DeRohan’s monthly spousal maintenance to $500 and terminating the obligation on February 2010, the month before Terry DeRohan turns sixty-six.  The district court found, in relevant part, that William DeRohan’s monthly income had decreased by more than fifty percent, his early retirement was in good faith, and the timing of his retirement coincided with financially challenging times for Northwest that resulted in its filing for Chapter 11 bankruptcy protection.  The court also found that Terry DeRohan’s former attorney recommended that she accept the settlement offer of $500 a month through February 2010 and that he believed the offer to be reasonable. 

            Terry DeRohan filed a motion for an amended order under Minn. R. Civ. P. 52.02.  In response to the motion, William DeRohan submitted a third affidavit explaining that he accepted the early retirement package to protect his pension.  In response, Terry DeRohan argued that the affidavit should be struck from the record as an improper response.  The district court denied Terry DeRohan’s motion for an amended order.  The district court’s order did not refer to or decide whether to strike William DeRohan’s third affidavit.  Terry DeRohan subsequently filed this appeal, challenging (1) the district court’s determination of good faith, (2) the admission of affidavit testimony from her former attorney, and (3) the adequacy of the findings to support a termination of maintenance in three years.



When an obligor seeks a spousal-maintenance modification based on a voluntary change of circumstances, the obligor generally has the burden of proving that he changed his circumstances in good faith toward his maintenance obligation.  See Garcia v. Garcia, 415 N.W.2d 702, 705 (Minn. App. 1987) (holding that, when seeking modification, obligor has burden to prove he made good-faith effort to comply with court order); see also Giesner v. Giesner, 319 N.W.2d 718 (Minn. 1982) (holding that, if obligor makes voluntary change in good faith, child and separated spouse should share in hardship). 

In Richards v. Richards,however, we recognized that a different standard applies in early-retirement cases involving the possible invasion of assets that were part of the marital-dissolution property settlement:  in these cases the initial burden of production on the issue of bad faith rests with the obligee who opposes the modification.  472 N.W.2d 162, 165 (Minn. App. 1991).  On appeal, Terry DeRohan asserts that the traditional rule applies in this case rather than the Richards rule, and, therefore, William DeRohan, as the obligor seeking the modification, has the burden of proving that he took his early retirement in good faith toward his maintenance obligation.

            The analysis in Richards builds on the rule developed in Kruschel v. Kruschel, 419 N.W.2d 119 (Minn. App. 1988).  Under Kruschel, when the obligor’s pension benefits constitute property that is divided in the dissolution agreement rather than income, the obligor ordinarily cannot be ordered to make spousal-maintenance payments from those benefits.  419 N.W.2d at 123. 

            Our decision in Richards reaffirmed the Kruschel rule but carved out an exception that applies when the obligor’s decision to retire early was primarily influenced by a specific intent to decrease or terminate maintenance.  Id. at 165-66.  To establish that the Richards exception applies, the obligee opposing the Kruschel modification has the initial burden of raising a colorable claim of bad-faith retirement.  Id. at 165.  After the obligee raises a colorable claim of bad faith, the burden shifts to the obligor who “must show by a preponderance of the evidence that [his or her] decision to retire early was not primarily influenced by a specific intent to decrease or terminate maintenance under Kruschel.”  Id.  In those limited circumstances, a district court may order the obligor to make maintenance payments from his pension benefits even though the benefits constitute property previously distributed in the marital-dissolution judgment.  Id.

Although pension benefits were part of the DeRohans’ original property settlement, the record does not indicate that the district court’s maintenance modification was based on the Kruschel rule.  Instead the district court, after considering each of the DeRohans’ expenses and financial resources, determined that monthly maintenance should be reduced to $500, which is less than the total amount of William DeRohan’s monthly nonpension income of $1,449.  Because the modification at issue was not made to preserve the original property distribution and therefore does not implicate Kruschel, William DeRohan had the burden of proof on the issue of good faith, and we apply that standard to the district court’s modification decision.

            A district court may modify a spousal-maintenance order if the party seeking the modification demonstrates that the obligor’s gross income has substantially decreased and the decrease in gross income makes the terms of the maintenance order unreasonable and unfair.  Minn. Stat. § 518A.39, subd. 2(a)(1) (2006).  We apply an abuse-of-discretion standard when reviewing a district court’s determination on the amount and duration of spousal maintenance.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  The abuse-of-discretion standard also applies to spousal-maintenance modifications and terminations.  Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn. App. 2000); see also Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981) (noting that “the trial court is vested with broad discretion to determine the propriety of a [spousal-maintenance] modification”).  A district court abuses its discretion in making a maintenance determination if its findings of fact are unsupported by the record or if it improperly applies the law.  Dobrin, 569 N.W.2d at 202 & n.3.

            Terry DeRohan argues that the district court abused its discretion when it determined that William DeRohan retired early in good faith because William DeRohan failed to provide evidence that explained or justified his early retirement.  When assessing the obligor’s motives for retiring early, the district court “should consider the obligor’s health and employment history, the availability of and expectations regarding early retirement at the time of the divorce, and the prevailing managerial policies and economic conditions at the time of retirement, together with whatever subjective reasons the obligor may offer.”  Richards, 472 N.W.2d at 165 (discussing factors to consider when obligor requests Kruschel modification and obligee challenges obligor’s motives for early retirement).  When a district court is asked to change the terms of a dissolution order that has been negotiated by the parties, the court should exercise considerable discretion and only reluctantly alter the terms.  Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).

            The district court took judicial notice that the timing of William DeRohan’s retirement coincided with financially challenging times for Northwest and that Northwest filed for Chapter 11 bankruptcy protection the month after his retirement.  The court also noted that Terry DeRohan conceded that some Northwest employees retired early to preserve their pensions and that retiring early was a logical decision for these employees to make.  We conclude that the court did not abuse its discretion in making these findings and determining that circumstantial evidence demonstrated that William DeRohan’s retirement was in good faith.

            Under Minn. R. Evid. 201, a court may take judicial notice of a fact “not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”  A reviewing court will not reverse evidentiary rulings, such as the taking of judicial notice, absent an abuse of discretion.  State v. Ali, 679 N.W.2d 359, 364 (Minn. App. 2004).   

            No Minnesota cases address whether appearance of a fact in a daily newspaper can itself establish that the fact is “generally known within the territorial jurisdiction of the trial court.”  But a federal court interpreting an identical rule in the federal rules of evidence has held that “facts reported in newspaper articles may be considered ‘generally known’” meeting the judicial notice requirement.  Nw. Bypass Group v. U.S. Army Corps of Eng’rs, 488 F. Supp. 2d 22, 25 (D.N.H. 2007).  Additionally, the filing of the bankruptcy proceeding constitutes a public record.  A federal court has held that courts may take judicial notice of matters of public record because they are “capable of accurate and ready determination.”  Lee v. City of Los Angeles, 250 F.3d 668, 689-90 (9th Cir. 2001) (taking judicial notice of, among other things, fact that extradition hearing took place because it was matter of public record); see also Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 497 n.1 (Fed. Cir. 1997) (taking judicial notice of administrative-board record). 

            Terry DeRohan does not claim that the facts relating to Northwest are subject to reasonable dispute.  Rather she suggests that the facts do not meet either of the two criteria in Minn. R. Evid. 201.  We disagree.  Because Northwest’s financial state was reported widely in newspapers, on the radio, and on the Internet, it was within the court’s discretion to conclude that it was generally known within the jurisdiction that Northwest was challenged financially.  Additionally, because Northwest’s filing for bankruptcy was a matter of public record, it was within the district court’s discretion to determine that the bankruptcy filing was capable of accurate and ready determination.  Consequently, the court did not abuse its discretion when it took judicial notice of these facts.

            The district court also did not abuse its discretion when it took into account that Terry DeRohan conceded in an affidavit that some Northwest employees retired early to preserve their pensions and that retiring early was a logical decision for those employees.  This concession is consistent with the district court’s determination that the circumstances at Northwest were generally known and not subject to dispute.

            The combination of the judicial notice and the concession provide circumstantial evidence that William DeRohan retired early to protect his pension.  See Baker v. Citizens State Bank of St. Louis Park, 349 N.W.2d 552, 558 (Minn. 1984) (stating that district courts may draw inferences from circumstantial evidence).  The district court did not abuse its discretion in finding that William DeRohan’s early retirement was a good-faith response to his retirement options. 



            Terry DeRohan also claims that the court erred when it considered portions of her former attorney’s affidavit and that the error was prejudicial.  She specifically refers to the district court’s findings that her former attorney recommended she “accept [William DeRohan’s] settlement offer of $500.00 [a] month in spousal maintenance through February, 2010” and that the attorney “found said settlement offer to be reasonable under the circumstances.” 

            Under Minn. R. Evid. 401, “‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”  Relevant evidence generally is admissible.  Minn. R. Evid. 402.  To provide a basis for reversal, the party challenging the ruling must show that the evidence was not only inadmissible, but prejudicial.  See Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 46 (Minn. 1997) (stating that complaining party must demonstrate prejudicial error). 

            Although the statements included in the affidavit of Terry DeRohan’s former attorney are primarily relevant to the settlement dispute and the procedural development of the case, we conclude that they do not provide a basis for reversal for two reasons.  First, because Terry DeRohan submitted the affidavit of her former attorney to oppose William DeRohan’s motion to enforce the settlement agreement, she cannot object to it being used for another purpose.  See Matter of Welfare of S.A.M., 570 N.W.2d 162, 167 (Minn. App. 1997) (stating that “[e]vidence, if admitted by a trial court, is admitted for all purposes unless the court rules otherwise or there is a contrary rule of evidence”).  Second, Terry DeRohan has not demonstrated that admission of the evidence was prejudicial.  There is no indication that the district court relied on the statements of her former attorney in any significant way, and the district court’s findings are sufficient exclusive of the attorney’s statements.  The district court relied on William DeRohan’s fifty-percent decrease in income and the comparison between William DeRohan’s and Terry DeRohan’s monthly shortfall.


            Terry DeRohan’s final argument is that the district court abused its discretion when it changed William DeRohan’s permanent obligation to pay spousal maintenance to a temporary obligation. 

            We review a district court’s modification of maintenance duration with the same abuse-of-discretion standard that we apply to a modification of the amount of maintenance.  See Bury v. Bury, 416 N.W.2d 133, 137 (Minn. App. 1987) (granting district court wide discretion to determine duration and amount of maintenance).  When deciding whether to modify the duration of a maintenance award, a district court is required to apply “the factors for an award of maintenance under section 518.552 that exist at the time of the motion.”  Minn. Stat. § 518A.39, subd. 2(d) (2006). 

            The factors outline several considerations, but the district court’s main objective is to balance the needs of the spouse receiving the maintenance against the financial condition or ability to pay of the spouse providing maintenance.  See Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982) (noting that, while statute lists several factors, issue is basically balancing of need against ability to pay).  Section 518.552 also states that, although the court should not favor temporary maintenance over permanent maintenance, when “there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.”  Minn. Stat. § 518.552, subd. 3 (2006).  

            The district court’s findings of fact provide a limited picture of the future financial circumstances of the parties.  While the district court notes that Terry DeRohan has a part-time job, it does not state the amount she earns, and nothing in the record indicates whether she is likely to continue to work and, if so, for how long.  Additionally, the district court’s findings do not take into account that Terry DeRohan’s pension will decrease by more than $1,000 in March 2010.  Finally, although it is possible to infer that Terry DeRohan will begin receiving social-security benefits in March 2010, nothing in the record explicitly states that Terry DeRohan will receive social-security benefits or indicates how much she will receive.  Because a district court is required to grant permanent maintenance if there is “some uncertainty as to the necessity of a permanent award,” the findings on the change to temporary maintenance are incomplete without ascertaining the future financial resources of both parties.

In summary, we conclude that the district court acted within its discretion when it determined that William DeRohan’s early retirement was in good faith toward his maintenance obligation.  We also conclude that Terry DeRohan’s argument to strike the affidavit she submitted is insufficient to support reversal.  The district court, however, has not made findings sufficient to support its determination to terminate spousal maintenance in three years.  Consequently, we remand this case for additional findings and, if necessary, further proceedings that assess the prospective financial conditions of the parties.

            Affirmed in part, reversed in part, and remanded.