This opinion will be unpublished and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
C4-95-2497

In Re the Marriage of:
Margaret H. Shaw, petitioner,
Respondent,

vs.

Richard M. Supalo,
Appellant.

Filed August 6, 1996
Affirmed
Holtan, Judge*

Dakota County District Court
File No. F49013666

Peter D. Mikkalson, 300 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for Respondent)

Matthew L. Fling, 5100 Eden Avenue, Suite 306, Edina, MN 55436 (for Appellant)

Considered and decided by Huspeni, 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

HOLTAN, Judge

Appellant Richard Supalo contests a trial court order denying his motion to terminate his maintenance obligation to respondent Margaret Shaw. We affirm.

FACTS

This case is before us on appeal for the second time. The parties were divorced in 1991. The judgment and decree ordered appellant to pay respondent maintenance of $900 per month, to decrease to $600 per month after nine months. The court also ordered appellant to pay the parties' substantial marital debt.

Approximately 22 months after the judgment and decree, appellant unilaterally stopped paying maintenance. Six months later, in January 1994, appellant moved to terminate maintenance, alleging substantial changes in his financial circumstances rendering him unable to afford the $600 per month payments. The trial court refused to terminate maintenance, finding that appellant had made a bad faith decision to retire from his airline mechanic job.

Appellant appealed the trial court's order, and this court affirmed the court's findings that appellant's decision to retire early was in bad faith and that the income he had been earning as an airline mechanic should be imputed to appellant. This court remanded for findings pertaining to appellant's ability to pay $600 per month on the imputed income of an airline mechanic. Specifically, this court requested a finding of appellant's reasonable monthly expenses and a finding regarding the status of the marital debt appellant was ordered to pay.

The trial court held a remand hearing and issued an order affirming its original order denying appellant's motion to terminate maintenance. In its order, the court imputed reasonable monthly expenses of $1,158 to appellant, found that appellant was "deliberately choos[ing]" not to repay his debt to avoid maintenance, and indicated numerous times its belief that appellant had available to pay his various financial obligations money that he had not disclosed to the trial court. Appellant now lives in Florida and has retired from his mechanic position, although he has been trained and is working as a real estate agent.

D E C I S I O N

We will not reverse a trial court's determination of maintenance absent an abuse of the court's "wide discretion" in the form of a clearly erroneous conclusion that is against logic and the facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Moreover, we must defer to the trial court's assessment of the credibility of witnesses and the weight to be given to their testimony. General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987); Fontaine v. Hoffman, 359 N.W.2d 692, 694 (Minn. App. 1984).

Appellant contends the trial court abused its discretion by refusing to terminate his maintenance, specifically alleging clear error in the court's findings (1) that he has not made a reasonable effort to decrease his debt load, and (2) that his reasonable monthly expenses are $1,158 per month.

1. Debt

The trial court's finding that appellant has not made a reasonable effort to decrease his debt load and stabilize his financial situation was not clearly erroneous. Appellant testified that he has only decreased some debts by incurring others. The record indicates that appellant has been advised by the trial court throughout this case that his debt load is unmanageable and that he should declare bankruptcy. In this context, the trial court's finding that appellant was "deliberately choos[ing] not to pay off the * * * debt in an attempt to avoid his spousal maintenance" was not clearly erroneous.

Appellant argues that his heavy debt load renders him unable to pay maintenance and still meet his monthly expenses. See Minn. Stat. ' 518.552, subd. 2(g) (1994) (directing courts to consider obligor's ability to meet expenses when ordering maintenance). Appellant's imputed monthly income is $2,248.91; his imputed monthly expenses, according to the trial court's findings, are $1,158.00; and his monthly maintenance obligation is $600. This leaves appellant with $490.91 per month, which is less than his monthly debt obligation of between $970 and $1,364 per month. The trial court, however, expressed doubt that appellant is making the minimum credit card payments and suggested that appellant could declare bankruptcy if unable to meet his debt obligations. In light of these findings, supported by the record, the trial court was within its wide discretion to order appellant's maintenance obligation to continue despite his large debts. See Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (addressing similar situation and holding that "given all the circumstances of the case," the trial court's decision to award maintenance in an amount that left the obligor with a $200 deficit per month was within its discretion); see also Crampton v. Crampton, 356 N.W.2d 768, 770 (Minn. App. 1984) (where maintenance arguments are "properly addressed to the trial court," an appellate court "cannot substitute * * * [its] judgment on * * * [their] merits").

2. Appellant's Expenses

Appellant asserts the trial court's determination of his imputed monthly expenses was too low. After a great deal of detailed testimony with respect to appellant's needs and spending practices, the trial court found that appellant's reasonable monthly expenses as an airline mechanic would be $1,158, a slightly lower figure than appellant's own estimate of his monthly expenses as a retiree in Florida. The trial court gave numerous reasons for its chosen amount, including (1) the fact that appellant's estimate allowed "generous amounts for food and miscellaneous personal items," (2) the fact that appellant's current wife could share his expenses, (3) the fact that the court did not find appellant's claim that he pays his wife rent legitimate, (4) the fact that appellant's purported $2,460 in contributions to charities in 1994, if authentic, showed that appellant had spare money that could be used for maintenance, and (5) the fact that the court did not find credible appellant's claim that he was not making money as a realtor. In general, the court found "[appellant] lacks credibility when testifying to his financial matters, income, expenses, and ability to pay spousal maintenance."

Appellant claims his imputed reasonable expenses should be calculated as if he were employed as a mechanic in Minnesota, because the court imputed to him the income he earned as a mechanic in Minnesota, and he alleges reasonable expenses of $2,300 per month while living in Minnesota. In response to questioning about why his expense estimate for his life as a retiree in Florida was so much lower than his expense estimate for his life as a mechanic in Minnesota, appellant vaguely testified to additional car, rent and clothing expense and then claimed he would have increased recreation, entertainment, personal, social, and church expenses totaling $520 per month. In light of the trial court's wide latitude to judge the credibility of witnesses and in light of the voluminous and conflicting evidence in the record with respect to appellant's expenses, the trial court did not clearly err in determining appellant's monthly expenses. Cf. Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (no abuse of discretion where trial court considered appellant's "earning capacity" rather than actual income after "effectively" making a bad faith determination by finding that obligor's "testimony * * * as to cash flow [wa]s not credible").

3. Other Issues

Appellant also contends that the trial court erred in considering his current wife's income as a possible source of money for appellant. We need not reach this question; even if this finding was in error, it is only one of several findings the trial court made to show that appellant has resources and disposable income that he refuses to acknowledge or disclose. The other findings are adequate to affirm the court's refusal to modify appellant's maintenance obligation; any district court error in addressing the income of appellant's wife is harmless. See Minn. R. Civ. P. 61 (harmless error to be ignored).

Finally, appellant alleges the trial court erred in refusing to terminate his maintenance obligation at the time of the remand hearing based on new evidence of respondent's financial situation. Specifically, appellant contends the trial court erred in determining respondent's current monthly income and monthly expenses. The trial court found respondent's net monthly income as of August 1995 to be $945.68 and her reasonable monthly expenses to be $1,292. Appellant contends the correct income figure is $1,045 and the correct expenses figure is $1,220. The trial court's findings are supported by testimony at the remand hearing and are not clearly erroneous. Moreover, even accepting appellant's version of the exact amounts, appellant has demonstrated only minor improvement in respondent's circumstances, not a substantial increase making the original maintenance award "unreasonable and unfair." Minn. Stat. ' 518.64, subd. 2 (Supp. 1995).

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.