This opinion will be unpublished and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

C3-96-86

In Re the Marriage of:

Francoise C. Struthers, petitioner,

Respondent,

vs.

James A. Struthers,

Appellant.

Filed June 4, 1996

Affirmed

Short, Judge

Hennepin County District Court

File No. 194373

Ned E. Ostenso, John T. Brandt, Merrigan, Quayle, Brandt & Ostenso, P.L.L.P., 25 Ninth Avenue North, Hopkins, MN 55343 (for Respondent)

Lawrence D. Olson, Lawrence D. Olson & Associates, P.A., 2860 Snelling Avenue North, Roseville, MN 55113 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Stone, Judge.*

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

SHORT, Judge

This dispute arises out of a 1994 dissolution judgment. In August 1995, James A. Struthers moved to reduce or eliminate spousal maintenance and to establish the requirements of the trust order. The referee denied all relief and the trial court affirmed. On appeal, Struthers argues: (1) the trial court should review his maintenance obligation de novo; (2) even if the parties did not waive their statutory rights regarding maintenance modification, he has shown a substantial change in circumstances rendering the original award unreasonable and unfair; (3) the judgment's trust provision requires clarification; and (4) the referee and the trial court each abused their discretion in awarding attorney fees to his former spouse. We affirm.

D E C I S I O N

Trial courts enjoy broad discretion to modify spousal maintenance obligations and to award attorney fees, and will not be reversed absent an abuse of discretion. Rubenstein v. Rubenstein, 295 Minn. 29, 32, 202 N.W.2d 662, 663-64 (1972) (maintenance); Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (attorney fees). We must affirm the trial court's factual findings unless they are clearly erroneous. Minn. R. Civ. P. 52.01.

Preliminary Motions

After the parties submitted their briefs, Struthers's former spouse moved to strike certain references to her deposition testimony. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) (stating a reviewing court will strike portions of a party's brief that are not part of the appellate record), aff'd, 504 N.W.2d 758 (Minn. 1993); see also Minn. R. Civ. App. P. 110.01 (defining the record on appeal). Although Struthers never formally placed the deposition testimony into evidence, his former spouse failed to object when Struthers referred to such deposition testimony in his petition for modification. Because there was no timely objection in the trial court, we may consider the testimony. Jones v. Fleischhacker, 325 N.W.2d 633, 639 (Minn. 1982); see also Pacific Equip. & Irrigation, Inc. v. Toro Co., 519 N.W.2d 911, 918 (Minn. App. 1994) (stating an affidavit, which was presented to the district court, constituted part of the record and any motion to strike should have been brought in district court), review denied (Minn. Sept. 16, 1994).

We grant the motion with regard to the reproduced transcript, which does not appear in the trial court's record. See Midwest Family Mut. Ins. Co. v. AMCO Ins. Co., 422 N.W.2d 758, 760 (Minn. App. 1988) (striking appendix material that never came before the trial court), review denied (Minn. June 29, 1988). We deny the request for attorney fees on this motion because the record does not show Struthers's attorney acted in bad faith, and we have not relied on information outside the record in reaching our decision. See St. Paul Fire & Marine Ins. Co. v. Mori, 486 N.W.2d 803, 809 (Minn. App. 1992) (striking portions of a party's appendix, but declining to award bad-faith attorney fees), review denied (Minn. Aug. 4, 1992); Borgeson v. Borgeson, 461 N.W.2d 402, 404 (Minn. App. 1990) (refusing to award attorney fees for bringing a motion to strike because the record did not suggest bad faith).

I.

At a settlement hearing, the parties stipulated to the contents of the dissolution agreement. When Struthers signed the judgment, however, he acknowledged his agreement with its terms, but added the following language at the end of the document: "subject to the amount of maintenance being adjusted by the petition of the respondent [Struthers]." Due to this addition, Struthers argues the trial court should have reviewed his maintenance obligation de novo because the parties waived the necessity of establishing a substantial change in circumstances. See Minn. Stat.  518.64, subd. 2(a) (Supp. 1995) (requiring a showing of a substantial change in circumstances that renders the original award unreasonable and unfair before a court may modify a spousal maintenance order). While parties to a dissolution action may waive statutory rights, the stipulation must specifically incorporate an express waiver into the judgment. Loo v. Loo, 520 N.W.2d 740, 745 (Minn. 1994) (express waiver); Berens v. Berens, 443 N.W.2d 558, 564 (Minn. App. 1989) (specific findings), review denied (Minn. Sept. 27, 1989); see also Geiger v. Geiger, 470 N.W.2d 704, 707 (Minn. App. 1991) (requiring that a waiver "express the parties' clear intent" on its face), review denied (Minn. Aug. 1, 1991). The dissolution court did not address Struthers's unilateral "waiver" in its factual findings or conclusions of law, and the provision merely reiterates Struthers's statutory right to seek modification and does not create a new standard for obtaining relief. See Loo, 520 N.W.2d at 745 (finding no waiver of the right to seek a maintenance modification when the language merely restated existing law); Geiger, 470 N.W.2d at 707 (finding no waiver of the burden of proof when the parties only restated the language of the visitation statute and the best interests standard). Furthermore, the stipulation and judgment clearly set the amount of Struthers's maintenance obligation, to which he unambiguously agreed on record. Under these circumstances, the evidence does not support his assertion that the dissolution court reserved this issue.

II.

Struthers next argues that, even if the parties did not waive the statutory scheme regarding modification of maintenance, a substantial change in circumstances has occurred. See Minn. Stat. 518.64, subd. 2(a) (permitting courts to modify an original maintenance award upon a showing of a substantial change in circumstances that renders the original order unreasonable and unfair). A substantial change in circumstances may include the increased or decreased earnings or needs of a party. Id. However, courts should hesitate to modify an obligation when the parties have expressed their intentions through stipulated terms. See Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977) (stating courts should be "even more reluctant" to alter the terms of a stipulation under these circumstances); Cisek v. Cisek, 409 N.W.2d 233, 237 (Minn. App. 1987) (noting stipulations indicate the intentions and expectations of the parties even though they do not completely bar modification of maintenance), review denied (Minn. Sept. 18, 1987).

Struthers argues evidence of (1) his former spouse's decrease in living expenses, (2) an increase in her income, and (3) a decrease in his income establish the requisite change in circumstances. Although the trial court may have erred in determining the monthly increase in the income of Struthers's former spouse, the record shows this error does not affect its determination that there has not been a change in circumstances sufficient to make Struthers's stipulated maintenance obligation unreasonable and unfair. See Minn. R. Civ. P. 61 (requiring courts to disregard errors that do not affect the substantial rights of parties). First, the expenses of Struthers's former spouse that he alleges establish a decrease in her needs are similar to or higher than those originally claimed by his former spouse and in no way suggest that her circumstances have changed. Second, the parties clearly did not base the maintenance award on a strict consideration of the parties' needs and income. The stipulation incorporated neither a balancing of these factors nor an estimation of the parties' monthly expenses. Furthermore, Struthers's former spouse could have met her basic living expenses, the amount of which she had submitted with her motion for temporary maintenance, through her employment earnings and investment income. Third, his former spouse's potential inheritance was known and considered during settlement negotiations. And fourth, a letter, written by Struthers at the time of dissolution, supports the trial court's finding that Struthers's decreased income resulted directly from the judgment. In this letter, Struthers correctly estimated that payment of the property settlement would reduce his income by approximately $8,000 in 1994. Thus, he cannot complain that this change in his finances renders the maintenance award unfair. See Abuzzahab v. Abuzzahab, 359 N.W.2d 329, 333 (Minn. App. 1984) (noting the obligor's financial problems, which resulted largely from the property division and were considered when the court divided the property, were not the type of change contemplated by the statute). In addition, Struthers has submitted no evidence to suggest alternative reasons for this decline in his income. See Peterson v. Peterson, 304 Minn. 578, 580, 231 N.W.2d 85, 87 (1975) (indicating the moving party has the burden of proving the statutory criteria necessary for the modification of maintenance); Christenson v. Christenson, 490 N.W.2d 447, 450 (Minn. App. 1992) (quoting Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980), and requiring the movant to show by "clear proof" that a substantial change makes modification equitable), review dismissed (Minn. Feb. 16, 1993). Given these facts, the trial court did not abuse its discretion in finding no substantial change in circumstances rendered the original award unreasonable and unfair. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (declining to remand for additional findings because the movant failed to show a substantial change in circumstances).

III.

Struthers also argues a provision in the judgment requiring him to fund a trust is ambiguous. However, the clause simply orders him to secure future maintenance payments by placing assets in a trust. The requirement is unambiguous despite Struthers's discretion in managing the trust and its income. If Struthers was not satisfied with its terms, he should have appealed the judgment. However, he failed to do so, and we may not now review or modify its terms. See Minn. R. Civ. App. P. 104.04, subd. 1 (requiring appeal to be taken within 90 days after the entry of a judgme8nt and decree of dissolution).

IV.

A court may award attorney fees in dissolution proceedings if a party (1) unreasonably contributed to the length or expense of the proceedings or (2) acted in bad faith. Minn. Stat. secs. 518.14, subd. 1 (length and expense), 549.21, subd. 2 (1994) (bad faith). The referee and the trial court ordered Struthers to pay $2,000 and $1,000 in attorney fees for his bad faith extension of these proceedings. Struthers argues those awards constitute an abuse of discretion.

The record establishes: (1) Struthers stipulated to his maintenance obligation; (2) this case represents Struthers's second motion to modify maintenance within the two-year period following entry of the judgment; (3) in the first post-decree order, which was issued in March 1995 and not appealed, the trial court found Struthers acknowledged there had been no change in circumstances since dissolution; (4) while Struthers has been ordered to comply with the trust provision, he apparently has failed to do so; and (5) Struthers did not appeal the judgment. Under these circumstances, we cannot say either the referee or the trial court clearly abused its discretion in granting these

reasonable fee awards. We decline to award attorney fees on appeal because the motion made by counsel at oral argument is not properly before us. See Minn. R. Civ. App. P. 127 (requiring parties to seek relief by written motion).

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, sec. 10.