This opinion will be unpublished and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-96-1011

In Re the Marriage of:

Rosalyn O'Leary Podratz, petitioner,

Respondent,

vs.

Karl Clarence Podratz,

Appellant.

Filed October 29, 1996

Affirmed; motion denied

Willis, Judge

Olmsted County District Court

File No. F0902483

Lawrence Downing, Lawrence Downing & Associates, 330 Norwest Center, 21 First Street S.W., Rochester, MN 55902 (for Respondent)

Judith L. Oakes, Galtier Plaza, Suite 780, 175 East Fifth Street, Box 15, St. Paul, MN 55101 (for Appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

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

WILLIS, Judge

On appeal following a remand from this court, Karl C. Podratz challenges (1) the district court's determination that spousal maintenance will not terminate automatically upon the remarriage of respondent Rosalyn O. Podratz and (2) the valuation of certain assets as of a date later than the date of the prehearing conference. Because the district court acted within its discretion in deciding both matters, we affirm.

FACTS

The parties' 28-year marriage was dissolved in 1994. Appellant, a physician, earns net income of approximately $15,000 per month from his employment as a department chairman at the Mayo Clinic. Respondent has a bachelor's degree in nursing and a master's degree in education. She was employed during the marriage in various capacities including nurse, nursing instructor, and research coordinator. Respondent's net monthly income from her last position as supervisor of a quality assurance unit at the Mayo Clinic was approximately $2,550.

In July 1991, respondent terminated her employment with the Mayo Clinic in order to seek an academic degree. In the original dissolution action, the district court awarded respondent permanent maintenance of $5,000 per month and directed appellant to pay respondent's tuition, fees, and book expenses for three years if respondent pursued a Ph.D. degree at any accredited university within three years of the decree. The judgment provided that maintenance would be reviewed if respondent remarried.

The district court divided the substantial marital assets approximately equally between the parties. Although the date of the parties' prehearing conference was March 20, 1991, the district court valued and divided appellant's retirement accounts as of March 1, 1992.

In the first appeal, both parties raised issues regarding the maintenance award and the property division. This court (1) modified the cost of living provision of the maintenance award, (2) reversed and remanded for additional findings on the district court's determination that maintenance would be reviewed upon respondent's remarriage and on the district court's use of inconsistent valuation dates, and (3) affirmed on all other issues. Podratz v. Podratz, No. C5-94-1977 (Minn. App. Apr. 18, 1995). On remand, the district court made findings supporting its determination that maintenance would not terminate automatically upon respondent's remarriage and its valuation of appellant's retirement accounts. This appeal followed.

D E C I S I O N

1. The district court has broad discretion in deciding whether to award maintenance and in determining the duration and amount of maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Before this court will find that a district court abused its discretion, there must be a clearly erroneous conclusion that is against logic and the facts in the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

The obligation to pay future maintenance terminates upon the remarriage of the party receiving maintenance, unless otherwise agreed in writing or expressly provided in the decree. Minn. Stat. § 518.64, subd. 3 (1994). The district court has discretion to direct that a spousal maintenance award will continue after the remarriage of the spouse receiving maintenance. Novak v. Novak, 458 N.W.2d 725, 727 (Minn. App. 1990).

On remand, the district court found that maintenance will not terminate in the event of respondent's remarriage, based on the length of the marriage, the standard of living of the parties while married, respondent's anticipated need for further education, and other equitable considerations. The district court specified, however, that respondent's remarriage may constitute a change of circumstances warranting modification of maintenance.

The record supports the district court's findings that the parties had a lengthy marriage, that they enjoyed a high standard of living, and that respondent has an anticipated need for further education. The record also shows that the parties moved frequently during the marriage, interrupting respondent's career to facilitate appellant's education. As a result, appellant has a significantly greater earning capacity than respondent. Considering the totality of these circumstances, we cannot say that the district court abused its broad discretion in providing that maintenance will not terminate automatically upon respondent's remarriage.

2. The district court is afforded broad discretion in making valuation decisions. Letsch v. Letsch, 409 N.W.2d 239, 242 (Minn. App. 1987). The district court's findings of fact on issues of valuation will not be set aside unless clearly erroneous. Hertz v. Hertz, 304 Minn. 144, 145, 229 N.W.2d 42, 44 (1975).

The district court must value marital assets as of the date of the initially scheduled prehearing settlement conference, "unless a different date is agreed upon by the parties, or unless the court makes specific findings that another date of valuation is fair and equitable." Minn. Stat. § 518.58, subd. 1 (1994). The statute also authorizes the district court to adjust the valuation of an asset if there is a substantial change in value between the date of valuation and the date of final distribution. Id.

Although the prehearing conference was held on March 20, 1991, the district court valued appellant's retirement accounts as of March 1, 1992. On remand, the district court found that a thorough review of the file showed that the use of the March 1, 1992 valuation date was supported by the relative economic situations of the parties, the period of time that respondent did not receive maintenance after the parties' separation, and the significant change in the value of the retirement accounts while this action was pending.

Appellant does not dispute that the value of the retirement accounts increased significantly during the pendency of the dissolution. Even if the district court had valued the retirement accounts as of the March 20, 1991 prehearing conference, the court had authority to adjust the valuation of the accounts to reflect subsequent changes. See Minn. Stat. § 518.58, subd. 1 (1994). Again, considering the totality of the circumstances, including the increase in value of the assets and the disparity in the parties' earning abilities, the district court did not abuse its broad discretion in determining the valuation date for the retirement accounts. See id. (providing that parties' relative incomes and opportunities for future acquisition of capital assets be considered in determining property division); Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979) (indicating that division of marital property need not be mathematically equal; it need only be just and equitable).

3. Respondent moves for an award of attorney fees on appeal, citing her lack of discretionary income. Because respondent did not provide specific information regarding her current income and expenses, we decline to award attorney fees for the appeal. See Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994) (holding that party moving for attorney fees based on inability to pay has the burden to provide adequate documentation to support the relief requested).

Affirmed; motion for attorney fees denied.