This opinion will be unpublished and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
C2-96-189


In Re the Marriage of:,
Marcus W. K. Heffelfinger, petitioner,
Appellant,

vs.

Marcia Long Heffelfinger,
n/k/a Marcia Marshall Long,
Respondent.


Filed August 13, 1996
Remanded and motion granted
Schultz, Judge*


Hennepin County District Court
File No. DW73 724


Richard D. Goff, Goff, Kaplan & Wolf, P.A., 900 Capital Centre, 
386 North Wabasha, St. Paul, MN  55102 (for Appellant)

Nancy Zalusky Berg, Gary A. Debele, Walling & Berg, P.A., 701 
Fourth Avenue South, Suite 650, Minneapolis, MN  55415-1873 
(for Respondent)


	Considered and decided by Randall, Presiding Judge, 
Parker, Judge, and Schultz, Judge.

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

SCHULTZ, Judge
	The judgment dissolving the marriage of appellant-husband 
Marcus W.K. Heffelfinger and respondent-wife Marcia Long 
Heffelfinger, n/k/a Marcia Marshall Long, awarded wife an 
interest in payments from husband's pension "as maintenance."  
Husband claims that the award was actually part of the property 
division and that therefore the district court lacked jurisdiction to 
modify that award.  We remand.

FACTS

	The 1980 judgment dissolving the parties' marriage  ruled 
that, given an equitable division of marital property and a share of 
husband's pension, wife would not lack sufficient property to 
provide for her needs.  The judgment then awarded wife half of 
husband's pension payments "as maintenance."  When wife sought 
increased maintenance in May 1995, husband argued that the 
pension payments were labeled "maintenance" for tax reasons but 
were actually part of the property division and that the district 
court lacked jurisdiction to modify the award.  In August 1995, a 
family court referee found that the trial court intended to award 
wife her interest in the pension payments as property, but 
concluded that the judgment's label of the payments as 
"maintenance" was controlling and ordered an evidentiary hearing. 
 The  referee did not find whether the pension payments had been 
labeled "maintenance" for tax reasons.  Husband appealed to the 
district court and, in December 1995, the district court affirmed.  
Husband appeals.

D E C I S I O N

	1.	A dissolution judgment's maintenance award may be 
modified, but, absent circumstances not present here, a property 
award may not.  Minn. Stat.  518.64, subds. 1 (1994) 
(maintenance), 2(d) (Supp. 1995) (property).  The parties agree 
that whether wife's pension award is maintenance, and subject to 
modification, or property, and not subject to modification, depends 
on the trial judge's intent in making the award.   Wife's failure to 
seek district court review of the referee's finding that the trial judge 
intended to award wife the pension payments as property does not 
preclude our review of that issue.  Warner v. Warner, 391 N.W.2d 
870, 873 (Minn. App. 1986).  Wife did not notice review of that 
issue to this court, however, and we need not address it.  Watson v. 
Watson, 379 N.W.2d 588, 591 (Minn. App. 1985).  The issue is 
critical to the appeal.  Therefore, we exercise our discretion to 
review it.  See Minn. R. Civ. App. P. 103.04 (appellate court may 
address issues as justice requires); Arndt v. American Family Ins. 
Co., 394 N.W.2d 791, 794 (Minn. 1986) (whether to review an 
issue under Minn. R. Civ. App. P. 103.04 when the respondent did 
not file a notice of review is discretionary with the court of 
appeals).
	2.	Determining whether the judgment awarded wife the 
pension payments as property or maintenance requires construction 
of the dissolution judgment.  Judgments "must be construed in 
light of applicable statutes" and "full effect must be given to that 
which is necessarily implied in the judgment, as well as to that 
actually expressed therein."  Palmi v. Palmi, 273 Minn. 97, 104, 
140 N.W.2d 77, 82 (1966); Stieler v. Stieler, 244 Minn. 312, 319, 
70 N.W.2d 127, 131-32 (1955) (respectively). 
	Here, the judgment awards both parties their interests in 
husband's pension as property.  Also, the relevant statute defined 
vested pension interests as property.  Minn. Stat.  518.54, subd. 5 
(1980).  Further, because the judgment stated that wife did not lack 
sufficient property to meet her needs, the trial court functionally 
found that wife did not satisfy the statutory requirements to receive 
maintenance.  See Minn. Stat.  518.552, subd. 1(a) (1980) (to 
receive maintenance, recipient must lack sufficient property to 
provide for his or her needs).  Thus, several aspects of the 
dissolution judgment suggest that the trial court awarded wife half 
of husband's pension payments as property.
	Other aspects of the judgment, however, suggest that the 
trial court awarded wife half of husband's pension payments as 
maintenance.  The judgment sets wife's payments in an amount 
equal to wife's temporary maintenance award, explicitly designates 
the pension payments "as maintenance," and states that the 
payments will terminate on the occurrence of events that typically 
terminate maintenance.  See Minn. Stat.  518.64, subd. 3 (1980) 
(listing conditions which automatically terminate maintenance 
obligations).  The existence of ambiguity in a dissolution judgment 
is a legal question.  Head v. Metropolitan Life Ins. Co., 449 
N.W.2d 449, 452 (Minn. App. 1989) (citing Halverson v. 
Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986)), review denied 
(Minn. Feb. 21, 1990).  Because the judgment can be read in more 
than one way, it is ambiguous.  See Landwehr v. Landwehr, 380 
N.W.2d 136, 138 (Minn. App. 1985) (ambiguity exists if, "judged 
by its language alone," judgment could reasonably have more than 
one interpretation).  Because ambiguity exists, extrinsic evidence 
may be used to resolve the ambiguity, and we remand for the 
district court to address explicitly the question of whether the 
award to wife of half of husband's pension payments was made as 
part of the property award or as a maintenance award.  See 
Koecher v. Koecher, 374 N.W.2d 542, 546 (Minn. App. 1985) 
(where judgment provision was ambiguous, district court should 
have received extrinsic evidence to interpret the provision (citing 
Stieler, 244 Minn. at 319, 70 N.W.2d at 131)), review denied 
(Minn. Nov. 26, 1985).    
	3.	On this record, we award wife $2,500 for attorney 
fees on appeal.    
	4.	Nothing in this opinion is an expression of how the 
district court should decide the case on remand.  
	Remanded and motion granted.



     * Retired judge of the district court, serving as judge of the 
Minnesota Court of Appeals by appointment pursuant to Minn. 
Const. art. VI,  10.
        We reject wife's claim that maintenance may be modified 
because the district court has "inherent power" to do equity in 
family court cases.  The question here is whether the 
district court has the jurisdiction to do the equity to which wife 
claims entitlement.  See Stevens v. Stevens, 501 N.W.2d 634, 
637 (Minn. App. 1993) (district court lacks jurisdiction to 
"convert" a property award to a maintenance award).  The 
cases wife cites to support this aspect of her argument are 
distinguishable.