This opinion will be unpublished and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
C4-95-2368

In Re the Marriage of:
Shirley Jean Wehr, petitioner,
Respondent,

vs.

David Donald Wehr,
Appellant.

Filed July 2, 1996

Affirmed
Stone, Judge*

Carlton County District Court
File No. F1931005

K. Scott Belfry, Belfry Law Office, Chtd., 6 - 13th Street, Cloquet, MN 55720 (for Appellant)

Dennis J. Korman, Korman Law Office, 6 - 11th Street, Cloquet, MN 55720 (for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Stone, Judge.

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

STONE, Judge

Appellant David Donald Wehr challenges the trial court's supplemental findings of fact, conclusions of law, and order for judgment. Appellant argues that the trial court erred in awarding respondent $1,643 per month in permanent spousal maintenance and in ordering him to pay $4,192 of respondent's $12,578.49 attorney fees because he had failed to comply with discovery and the stipulated temporary order and because he had the ability to pay. We affirm.

FACTS

The parties were married in 1967. Both appellant and respondent are 55 years old. They had three children, all now adults. In December 1995, the parties entered into a stipulated property settlement. The marriage was dissolved by a judgment and decree entered pursuant to the parties' stipulation. Respondent was awarded, inter alia, the homestead and adjacent lot, half of a Prime Account at Piper Jaffray valued at $26,338, and half of an IRA account valued at $6,157.

Following a trial solely on the issues of spousal maintenance and attorney fees, the trial court issued its supplemental findings of fact, conclusions of law, and order for judgment. The court found that appellant, who owns half of a construction company known as Q.W. Marble and is the operational head of the company, had an annual income of $48,058.00. The court found that respondent had injured her knee twice, making it "difficult or impossible" for her to do work involving moderate to heavy physical labor. The court also found that at the time of trial, she was being trained as an inventory checker and that if she completed the training successfully, she would be employed part-time earning $6.25 per hour with no benefits.

The court awarded respondent $1,643 per month in permanent spousal maintenance. Appellant was ordered to pay $4,192 of respondent's attorney fees (her total fees were $12,578.49) because appellant had failed to comply with discovery and the stipulated temporary order and because respondent had the ability to contribute to her attorney fees. This appeal followed.

D E C I S I O N

Appellant did not move for a new trial. Thus, our review is limited to examining "whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment." Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).

I. Spousal Maintenance

Appellant argues that the trial court erred in awarding respondent $1,643 per month in permanent spousal maintenance.

The standard of review on appeal from a spousal maintenance award is whether the trial court abused its wide discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

Appellant argues that respondent does not meet the statutory criteria for an award of spousal maintenance. See Minn. Stat. ' 518.552, subd. 1 (1994).

Appellant contends that respondent got a large enough property settlement to provide for her needs, thus she does not need maintenance. See Minn. Stat. ' 518.552, subd. 1(a) (trial court may award maintenance if it finds that the spouse seeking maintenance "lacks sufficient property * * * to provide for reasonable needs of the spouse * * *"). Appellant asserts that: (1) respondent will have a home with a very small mortgage; (2) she has the option of selling the property, paying off the mortgage, and putting a down payment on another home; and (3) she will be left with sufficient money for investment and retirement.

However, the trial court found that:

The Court is fully informed and aware of the property division stipulated to by the parties. The property division and the share awarded to Petitioner will not allow her to be self-supporting without an award of substantial spousal maintenance to be paid by the Respondent. The income that Petitioner will receive from the property settlement would be minimal. Petitioner testified that she would be using a substantial portion of her property settlement to try to acquire some business entity that she could successfully operate to improve her own ability to earn income. It is uncertain whether Petitioner will be able to acquire such a business and whether such a business would produce income that would allow her to be self-supporting.

Appellant also argues that respondent is able to support herself. See Minn. Stat. ' 518.552, subd. 1(b) (trial court may award maintenance if it finds that the spouse seeking maintenance "is unable to provide adequate self-support * * * through appropriate employment * * *"). He notes that: (1) she has worked outside the home since the marriage; (2) she graduated from high school and has some college credits, whereas he only has a 10th grade education; and (3) she has "numerous work-related skills," "some expertise in running a business," and "fully intended to run her own business."

The trial court found that during the marriage, respondent worked as a painter, but no longer can do such work because of her knee injury; that at the time of trial she was training to be an inventory checker, and if she successfully completed the course, she would work part-time earning $6.25 per hour with no benefits; she got a few college credits in nursing a number of years ago, but she is not close to obtaining a degree or certification; and "[i]t is uncertain whether Petitioner will be able to acquire such a business and whether such a business would produce income that would allow her to be self-supporting." These findings support an award of maintenance to respondent.

Appellant also argues that the trial court erred regarding the amount and duration of spousal maintenance. [1] He contends that the maintenance should have been "temporary and rehabilitative." Appellant notes that respondent was gainfully employed during the marriage. However, the trial court found that she is no longer able to do the work she did during the marriage--painting. In addition, the trial court found that her job skills are not transferable to a "sedentary occupation."

Appellant points out that respondent was not absent from the marketplace for an extended period of time during the marriage. However, the trial court found that respondent spent "many" of the early years of the parties' marriage as a full-time homemaker, and that the job skills she acquired during the marriage are of no use to her now because of her injury.

Appellant claims that respondent has more education than he and has no need for "retooling." It is true that respondent had two more years of high school than appellant and that she took a few nursing courses. However, she is a long way from a nursing degree, and has no other significant job skills. In addition, the trial court found that "[i]t is doubtful whether she will be able to acquire sufficient education or training to enable her to substantially enhance her employability." Appellant, on the other hand, has many years of experience in a high-paying blue-collar field (and owns half a company).

Appellant asserts that respondent's physical condition is not an obstruction. He notes that "she can still dance and limbo without much difficulty." However, the trial court found that her injuries "would make it difficult or impossible for her to do any type of work involving moderate to heavy physical labor."

Appellant claims that the trial court ignored evidence regarding his monthly expenses. The court did not make a finding regarding appellant's monthly expenses. It did, however, find that appellant's income allows him to pay "substantial permanent spousal maintenance" and still enjoy a "reasonably comfortable middle-class standard of living."

Respondent is in her mid-fifties, is physically able to do only light work, has little work experience except as a painter (but cannot do that any more), and is making $6.25 an hour part-time with no benefits. She has no significant job skills. Thus, the trial court's findings support its award of permanent spousal maintenance in the amount of $1,643 per month.

Appellant argues that his own income production seems to be "at grave risk" with the move of Grandma's Incorporated to the Carolinas (because 90% of appellant's company's work is for Grandma's Incorporated). As respondent properly notes, if appellant's income does decrease significantly, he can bring a motion for modification based on that decrease, but if his income does not decrease, there would be no reason to decrease his support obligation. See Minn. Stat. ' 518.64 (1994 & Supp. 1995).

II. Attorney Fees

The trial court ordered appellant to pay $4,192 of respondent's $12,578.49 in attorney fees. The trial court found that a substantial portion of respondent's attorney fees were caused by appellant's "unreasonable failure to comply with discovery" and "unreasonable failure to comply with the stipulated Temporary Order." The court also concluded that appellant has the ability to contribute to respondent's attorney fees. See Minn. Stat. ' 518.14, subd. 1 (1994) (allowing need based and conduct based attorney fee awards).

Appellant argues that, even though he is one-half owner of the construction company, and the operational head of the company, he was unable to get the requested documents in time and that respondent had the ability to get the documents herself. He also claims that if he was "occasionally" late in paying some bills, it was because he "believed that his financial situation only allowed partial payments." Appellant's arguments do not establish a clear abuse of discretion by the trial court. See Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987) (an award of attorney fees in a dissolution case will not be reversed absent a clear abuse of discretion).

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, ' 10.

[1]Respondent notes that the court made an award of spousal maintenance in an amount that would almost exactly equalize the net disposable income of the parties after tax consequences.