This opinion will be unpublished and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

C1-95-2621

Dennis James Ashlin,

Appellant,

vs.

Peggy Ann Ashlin, n/k/a

Peggy Moritko,

Respondent.

Filed June 18, 1996

Affirmed and motion for attorney fees granted in part

Willis, Judge

Hennepin County District Court

File No. DC183229

Matthew A. Tubridy, First National Bank Building, Suite E 1401, 332 Minnesota Street, St. Paul, MN 55101 (for Appellant)

Mary C. Sherman, Suite 320 Rainbow Building, 1422 West Lake Street, Minneapolis, MN 55408 (for Respondent)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Husband appeals from an order denying a motion to modify spousal maintenance, claiming that the district court erred by finding that changes in the parties' circumstances were not substantial. Wife requests attorney fees on appeal. We affirm and grant, in part, wife's request for attorney fees.

FACTS

The 20-year marriage of Dennis Ashlin and Peggy Moritko ended by a dissolution decree entered in October 1993. The decree awarded Ashlin all right, title, use, and occupancy of the marital homestead, but required him to pay Moritko $33,449.50, which represented one-half of the equity interest, within six months of the entry of the decree. The dissolution court awarded physical custody of the parties' son to Ashlin and physical custody of the parties' daughter to Moritko. Neither party was ordered to pay child support until the son's emancipation, at which time Ashlin would pay Moritko guideline child support for the daughter.

The dissolution court determined that Ashlin had a net monthly income of $2,371, with reasonable monthly expenses of $1,846. While Moritko received no salary from her floral business, the court found that she was capable of earning a net monthly income of $1,045 and had reasonable monthly expenses of $1,883. The court concluded that Moritko was in need of spousal maintenance and ordered Ashlin to pay her $450 per month.

Approximately two years later, Ashlin moved to modify his spousal maintenance obligation, claiming substantial changes in the financial circumstances of both parties. The court acknowledged the changes, but found they were not substantial within the meaning of Minn. Stat. ' 518.64.

D E C I S I O N

I.

To modify a spousal maintenance award, the district court must determine whether either party has experienced a substantial change of financial circumstances that makes the terms of the current obligation unfair and unreasonable. Minn. Stat. ' 518.64, subd. 2(a) (Supp. 1995). Application of this standard to the facts is a matter within the district court's discretion. Abuzzahab v. Abuzzahab, 359 N.W.2d 329, 332 (Minn. App. 1984). Additionally, the court must apply "the factors for an award of maintenance under section 518.552 that exist at the time of the motion." Minn. Stat. ' 518.64, subd. 2(b). Absent an abuse of discretion, a reviewing court will not disturb a district court's decision on spousal maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

Ashlin contended that three changed circumstances justified modification of his spousal maintenance obligation. First, he presented evidence that his hourly wage had decreased from $22.07 to $20.25, resulting in a net earnings decrease of $167 per month, or 7%. The addition of a third shift at his place of employment also reduced his overtime earnings. Second, Ashlin argued that his reasonable monthly expenses had increased by 38% due, for the most part, to a second mortgage that he obtained to pay Moritko a lump-sum cash settlement as ordered in the dissolution decree. In sum, he claimed a "45% detrimental change in [his] circumstances since the Judgment and Decree." Third, Ashlin argued that Moritko was earning 6% more than anticipated in the decree and that her monthly expenses had decreased by 6%, resulting in a combined 12% favorable change in her circumstances.

The district court did not err by focusing on Ashlin's 7% decrease in income and finding that a 7% decrease was not substantial. The court noted that Ashlin managed more than $8,000 in overtime earnings in 1994 and that his 1995 pay stubs continued to reflect overtime earnings. The court properly refused to deem factors such as the second mortgage payment or the lump-sum cash settlement received by Moritko as relevant to a determination of Ashlin's continued obligation to pay spousal maintenance. See Abuzzahab, 359 N.W.2d at 332 ("[C]hanges directly resulting from the property division are not the type of changes contemplated in ' 518.64, subd. 2.").

Even if we viewed the changes in the parties' financial circumstances as substantial, we are not persuaded that these changes render the terms of the order to pay spousal maintenance unfair or unreasonable. The record shows that Ashlin continues to have substantially greater income and significantly greater earning potential than Moritko. See Hellerstedt v. Hellerstedt, 409 N.W.2d 65, 67-68 (Minn. App. 1987), review denied (Minn. Sept. 30, 1987) (concluding that continued disparity in parties' incomes and expenses justified denial of husband's motion to modify spousal maintenance obligation, even though husband's earnings had decreased 50% and wife's new job provided her with an additional $1,000 per month in income).

Ashlin argues that the district court should have considered all of the factors listed in Minn. Stat. ' 518.552, subd. 2, in deciding whether to modify his spousal maintenance obligation. The district court thoroughly reviewed and compared the parties' financial circumstances as they existed when the dissolution decree was entered and as they existed at the motion hearing. See Minn. Stat. ' 518.64, subd. 2(b). The record shows no substantial change from the circumstances that were anticipated by the dissolution decree. The dissolution court calculated Moritko's earning capacity at $1,045 per month. The record shows she earned $1,111.48 per month. The dissolution court ordered Ashlin to pay spousal maintenance to supplement Moritko's imputed income. Moreover, the dissolution decree contemplated the property award and ordered spousal maintenance in addition to the cash settlement. Because Ashlin failed to show a substantial change in circumstances that made the original award unfair and unreasonable, the district court properly denied his motion to modify his spousal maintenance obligation.

II.

An award of attorney fees on appeal rests within the discretion of this court. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989). An appellate court may award attorney fees upon finding that "the fees are necessary for the good-faith assertion of the party's rights," that the party requesting fees does not have the means to pay, and "that the party from whom fees * * * are sought has the means to pay them." Minn. Stat. ' 518.14, subd. 1 (1994). Moritko also asserts a claim for attorney fees pursuant to Minn. Stat. ' 549.21, subd. 2 (1994), which provides for costs and fees against a party or an attorney who has acted in bad faith, asserted a frivolous or unfounded claim that is costly to the other party, acted to delay the proceeding or to harass, or committed a fraud on the court.

We believe that an award of attorney fees to Moritko for this appeal is justified under Minn. Stat. ' 518.14. While Moritko's financial circumstances remain unchanged since the August 1995 hearing, an affidavit submitted by Moritko in support of her motion for attorney fees states that Ashlin sold the homestead in February 1996. Ashlin therefore no longer has an obligation to make the second mortgage payments that were the primary motivation for his motion to modify spousal maintenance.

Based on the parties' relative financial resources, Moritko is entitled to attorney fees in the amount of $2,000 for responding to this appeal. See Erickson v. Erickson, 452 N.W.2d 253, 256 (Minn. App. 1990) (awarding attorney fees on appeal based on parties' respective financial resources).

Affirmed and motion for attorney fees granted in the amount of $2,000.