This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Janelle Erickson Tice, petitioner,
Kenneth M. Tice,
Filed June 4, 1996
Anoka County District Court
File No. FX948211
Nancy L. Ponto, 450 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for Respondent)
Michael D. Dittberner, Kissoon, Clugg, Linder & Dittberner Ltd., 3205 West 76th Street, Edina, MN 55435-5244 (for Appellant)
Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Short, Judge.
U N P U B L I S H E D O P I N I O N
Kenneth M. Tice appeals from the district court's denial of his motion to modify spousal maintenance, arguing the district court erred in totaling monthly expenses and calculating spousal maintenance. We affirm.
Husband and respondent Janelle Erickson Tice were married on December 29, 1987. They had three children before separating and starting dissolution proceedings in July 1994.
In her petition for dissolution, wife moved for temporary child support, temporary spousal maintenance, and possession of the parties' home. By a stipulation and temporary order of September 12, 1994, husband retained possession of the home, but was required to place the home up for immediate sale. The stipulation also required husband to pay $1,000 per month in temporary child support. The issue of temporary spousal maintenance was reserved until trial. The homestead still had not been sold.
Before trial, the parties stipulated to computer-generated financial schedules depicting various combinations of spousal maintenance and 401(k) deductions and their effects on both parties' incomes. The stipulated schedules were based on the assumptions that each party would own similarly-valued homes and that husband would pay $1,130 per month in statutory child support. The parties agreed the purpose of the schedules was to assist the court, but that the court was not bound or limited in any way by the schedules. These stipulated schedules were admitted at trial.
The judgment and decree ordered husband to pay $1,130 in child support and $1,000 in temporary spousal maintenance. Child support and spousal maintenance were based on the parties' net monthly income, a 5 percent 401(k) deduction as contained in the stipulated schedules, and estimated monthly expenses as submitted by the parties in their prehearing statement.
Husband subsequently moved for amended findings because he believed the spousal maintenance was too high. Husband proposed amended findings for both parties' reasonable monthly expenses.
In the amended findings of fact, conclusions of law, order for judgment, and judgment and decree, the district court amended wife's reasonable monthly expenses by deleting a $78 monthly expense for preschool that was unnecessary. All other findings for monthly expenses and net monthly income were unchanged. Husband appeals.
D E C I S I O N
A trial court's determination of spousal maintenance will not be overturned absent an abuse of the wide discretion accorded the trial court. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The decision must be clearly erroneous and against logic and the facts before the trial court will be found to have abused its discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).
A reviewing court must generally only consider "'those issues that the record shows were presented and considered by the trial court in deciding the matter before it.'" Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (quoting Thayer v. American Fin. Advisers, 322 N.W.2d 599, 604 (Minn. 1982)). "Nor may a party obtain review by raising the same general issue litigated below but under a different theory." Id.
1. Husband claims the spousal maintenance award was based on incorrect net monthly income amounts for himself and wife. We find that husband is barred from raising this issue for the first time on appeal. See id. Husband's motion for amended findings included changes in his ability to pay spousal maintenance and his monthly expenses, but did not include any argument that the net income figures were incorrect. We note that husband even included the same net monthly income amounts in his request for amended findings as was in the original findings. Moreover, the net monthly income amounts used by the trial court were part of the stipulated schedules both parties agreed to before trial.
2. Husband argues the trial court erred in calculating his portion of the mortgage payment as $950, while wife' portion was $1,100. Husband is barred from raising this issue for the first time on appeal because he did not object to the stipulation at trial. See id. The trial court based the mortgage payment amounts on the stipulated assumption that each party would be living in a home of approximately the same value once their homestead sold. Husband agreed to this assumption in the stipulation admitted at trial.
3. Husband argues the trial court erred in making calculations of spousal maintenance with a 5 percent 401(k) deduction when he stated at trial that he wished to deduct 15 percent. Husband is barred from raising this issue for the first time on appeal because he failed to raise it in his motion for amended findings. See id. In any event, the 401(k) deductions were also part of the stipulated schedules, which the parties agreed allowed the trial court the freedom to choose any deduction amount it deemed appropriate.
4. Husband argues the trial court erred by assuming husband's mortgage interest deduction would be $9,000. Husband is barred from raising this issue for the first time on appeal because he did not raise it in his motion for amended findings. See id. Furthermore, the $9,000 mortgage interest deduction was one of the stipulated assumptions used to calculate the spousal maintenance award.
5. Husband argues there is no support for wife's award for increased food and clothing expenses. Husband is barred from raising this issue for the first time on appeal because he failed to raise it in his motion for amended findings. See id.
6. Wife requests $4,098.90 in attorney fees for this appeal. The record shows the parties' financial situations are somewhat disparate, with wife unable to pay the fees without difficulty. In light of these factors, we award wife $2,000 in attorney fees. See Minn. Stat. ' 518.14, subd. 1 (1994).