This opinion will be unpublished and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
CX-95-2634

In Re the Marriage of:
Janet Ann Evensen, petitioner,
Respondent,

vs.

Mark Harry Evensen,
Appellant.

Filed July 30, 1996
Reversed and remanded
Klaphake, Judge

Washington County District Court
File No. FX-94-626

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Respondent)

Melva D. Radtke, 620 Quixote Avenue North, Lakeland, MN 55043 (for Respondent)

Neal H. Nelson, Jr., 2277 West Highway 36, #244, Roseville, MN 55113 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Toussaint, Chief Judge, and Holtan, Judge.*

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

KLAPHAKE, Judge

Appellant Mark Evensen moved to modify or terminate his maintenance obligation to respondent Janet Evensen, as established in their 1994 dissolution decree. Because we conclude that appellant has demonstrated a substantial change in the parties' circumstances to warrant modification, we reverse the district court's order and remand to set the appropriate amount of maintenance.

D E C I S I O N

Minn. Stat. ' 518.64, subd. 2 (1994) generally allows modification of maintenance if there is a showing of substantially increased or decreased earnings or needs of a party that make the terms of the original decree unreasonable and unfair. Maintenance may be modified "only upon clear proof of facts showing a substantial change of circumstances from those existing at the time of dissolution." Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980). On appeal, modification of spousal maintenance is subject to an abuse of discretion standard. Wiese, 295 N.W.2d at 372.

We conclude that the district court abused its discretion by declining to modify appellant's maintenance payment of $1,400 per month. The record establishes that appellant's earnings have decreased because of his termination from employment and that respondent's needs have decreased and her earnings have increased. While the memorandum of law incorporated into the district court's order demonstrates the court's consideration of the appropriate statutory factors, we disagree with the court's conclusion that appellant has not demonstrated a substantial change in circumstances that make the original maintenance award unfair. [1]

Appellant clearly established that he became unemployed on January 15, 1995. From January through May 1995, he received negotiated severance pay of $31,703.57. Thereafter, the court found he received $5,423 in expense reimbursement through July 1995 from his new consulting business. The court's memorandum does not establish the net amount of other proceeds appellant received from investment income and stock options. It is clear, however, that appellant's total net income decreased substantially from $5,092.38, his net monthly income at the time of the decree.

Additionally, the record establishes that respondent has experienced a slight increase in net income. The record further establishes that her needs have decreased approximately 40%, from $2,852 to $1,728, once her claimed monthly expenses are adjusted for voluntary expenses she assumes on behalf of the parties' adult children. See Musielewicz v. Musielewicz, 400 N.W.2d 100, 103 (Minn. App. 1987) (maintenance award may not consider needs of adult children), review denied (Minn. Mar. 25, 1987). Under these circumstances, we conclude the district court abused its discretion in determining that appellant had failed to demonstrate a basis for modification. We reverse and remand for a modification in maintenance consistent with this opinion and the needs and actual income of both parties. See Wiese, 295 N.W.2d at 372.

Reversed and remanded.


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]The absence of findings in this case does not impede appellate review because the order incorporates a memorandum enumerating the factors upon which the district court based its legal conclusion. See Dillavou v. Peters, 349 N.W.2d 610, 612 (Minn. App. 1984).