This opinion will be unpublished and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

C2-96-869

In Re the Marriage of:

Ronald Wayne La Friniere, petitioner,

Appellant,

vs.

Elizabeth Marie LaFriniere,

Respondent.

Filed October 29, 1996

Affirmed

Parker, Judge

Clearwater County District Court

File No. FX95100

Jana M. Austad, Kief, Fuller, Baer & Wallner, Ltd., 514 America Avenue, Bemidji, MN 56619-0880 (for appellant)

Geri L. Napuck, Napuck Law Offices, P.A., 905 Twelve Oaks Center, 15500 Wayzata Boulevard, Wayzata, MN 55391 (for respondent)

Considered and decided by Short, Presiding Judge, Parker, Judge, and Crippen, Judge.

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

PARKER, Judge

Ronald LaFriniere appeals from the trial court's award of permanent spousal maintenance in this marital dissolution action. He contends the trial court abused his discretion by awarding respondent Elizabeth LaFriniere $400 per month permanent spousal maintenance. He further contends the trial court erred in failing to consider income which could be generated by the marital property award to her. We affirm.

D E C I S I O N

Trial courts exercise broad discretion in deciding whether to award maintenance and in determining its amount and duration. Zamora v. Zamora, 435 N.W.2d 609, 611 (Minn. App. 1989). On appeal, a trial court's determination of spousal maintenance is final and will not be reversed absent an abuse of discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Furthermore, the conclusion must be clearly erroneous and against logic and the facts on the record before an appellate court will find that the trial court abused discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

1. Spousal Maintenance

Ronald LaFriniere argues that the trial court abused discretion in awarding $400 per month permanent spousal maintenance because his former wife has sufficient marital property and sources of income to meet her needs. He does not argue that he lacks sufficient income to make the monthly maintenance payments. Rather, he contends that, before and after retirement, she has and will have the ability to generate sufficient income through employment, investments, investment interest income, social security, and the award of one-half of his NSP pension.

Minn. Stat. § 518.552, subds. 1(a), 1(b) (1994), authorizes a trial court to award spousal maintenance if it finds that the spouse seeking maintenance:

(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse, considering the standard of living established during the marriage * * *; or

(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment * * *.

Minn. Stat. § 518.552, subd. 2 (1994), sets forth specific factors, along with other factors found relevant, to be taken into consideration by the trial court when determining the amount of maintenance and the duration of time, either temporary or permanent.[1] Although the statute lists eight factors to be considered in determining a maintenance award, the basic considerations are the financial need of the spouse receiving maintenance and the ability to meet that need, balanced against the financial condition of the spouse providing the maintenance. Novick v. Novick, 366 N.W.2d 330, 334 (Minn. App. 1985) (citing Krick v. Krick, 349 N.W.2d 350 (Minn. App. 1984)). If uncertainty exists as to whether a permanent maintenance award is needed, a court must order a permanent award, leaving it open for future modification. Minn. Stat. § 518.552, subd. 3 (1994). See Gales v. Gales, ___ N.W.2d ___ (Minn. Sept. 19, 1996) (addressing standard for awarding permanent maintenance).

We find sufficient evidence to support the trial court's decision to award permanent maintenance. The trial court did not abuse its wide discretion by attempting to reach an equitable result based on the circumstances of the case. Trial courts are authorized to look beyond the bare needs of the spouse seeking maintenance; courts must also consider the duration of the marriage, the standard of living established during the marriage, as well as the age, education, and physical condition of the spouse seeking maintenance. See Minn. Stat. § 518.552, subd. 2(a)-(h).

The parties here were married for 37 years. Elizabeth LaFriniere is 60 years old, in poor physical condition, and has only a high school education. During the marriage, she worked only part time and functioned as the primary homemaker and caretaker of this seven-child family. Her former husband functioned as the primary wage-earner and, at the time the parties separated, earned $63,373.95. She re-entered the job market full time, from necessity, after the separation. He was able to retire in 1991 at age 58, while she continued to work full time to meet her reasonable needs. The facts and evidence on record support the trial court's conclusion that in the absence of a permanent maintenance award he would enjoy a comfortable retirement, receiving a monthly income that exceeded his needs, while she would be forced to continue to work full time to get by. See Gales, ___ N.W.2d at ___ (permanent maintenance is appropriate upon dissolution of a "long-term traditional marriage" involving "an older, dependent spouse who has little likelihood of achieving self-sufficiency because of an absence from the labor market for a long period of time"). It is inequitable to assume that she has an ongoing obligation to maintain full-time employment until she is eligible for social security while he is able to enjoy retirement at age 58.

The record also supports the trial court's conclusion that, post-retirement, Elizabeth LaFriniere will lack sufficient property to provide for her reasonable monthly needs, considering the standard of living established during the marriage. Without maintenance, she would have to depend solely on her very limited pension income and her portion of her former husband's NSP pension. Based on these factors, it was clearly within the equitable discretion of the trial court to allow her to receive a reasonable amount in excess of her present monthly expenses in order to allow her to save for retirement. We hold that the trial court did not abuse discretion in awarding her $400 per month permanent maintenance under these circumstances.

2. Interest Income from Property Award

Ronald LaFriniere argues that the trial court erred in failing to consider and include income which could be generated by the marital property award to his former wife. He contends that the trial court clearly erred in imposing upon him the duty to maintain 47 percent of his property in an income-generating investment without the court imposing the same requirement upon her.

Minn. Stat. § 518.552, subd. 2(a), requires courts to consider financial resources, which includes income generated by liquid assets. Broms v. Broms, 353 N.W.2d 135, 137 (Minn. 1984). Courts normally do not expect spouses to invade the principal of their investments to satisfy their monthly expenses. Id.

Although the trial court made an equal division of the value of the marital estate, the division leaves him with 47 percent of his marital property award in income-producing NSP stock, while the value of his former wife's marital property award is tied up in her Crystal homestead. She did receive liquid assets of $29,889.34, consisting of a cash "equalizer" award, her savings account, and the cash value of her life insurance. Liquid assets aside, in order to invest 47 percent of her marital property award, she would be forced to sell her primary residence. Of course, if she sells her house and has to move into an apartment, her monthly expenses will increase and she will have a claim for additional maintenance. This is clearly inequitable and contrary to case law. See Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (spouse was not required to invade the principal of her investments to meet her reasonable needs). Therefore, it was not an abuse of discretion for the trial court to consider the income generated by his marital property award, while not imposing such a requirement upon her property.

3. Respondent's Requests

Mrs. LaFriniere argues that she is entitled to post-judgment interest on the cash property settlement "equalizer" the trial court ordered to be paid within 60 days of the decree, when such payment was not made despite absence of a stay or supersedeas bond. She requests that this court award her simple interest of five percent on the total settlement "equalizer" due, since investment of this sum would reasonably have yielded a similar return of her investment.

According to Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988), an appellate court may consider "only those issues that the record shows were presented and considered by the trial court in deciding the matters before it." A reviewing court may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence below. Id. at 583.

The trial court ordered Mr. LaFriniere to pay her $23,688.84 within 60 days of the date of the decree to effectuate an equal marital property division. There is no evidence in the record that the issue of enforcement and interest has been brought before the trial court. This issue is therefore outside our review and should instead be directed to the trial court.

Mrs. LaFriniere requests that she be awarded attorney fees incurred responding to this appeal. She bases this request on the disparity in available liquid assets between the parties and on the fact that she will likely have to use a portion of her "equalizer" payment in order to pay her attorney fees.

Under Minn. Stat. § 518.14, subd. 1,

the court shall award attorney fees, costs, and disbursements in an amount necessary to enable a party to carry on or contest the proceeding if it finds: (1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of theproceeding; (2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and (3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Also, in Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991), we held that attorney fees on appeal may be awarded if the appeal was frivolous or made in bad faith.

It appears that she will have the resources to pay her attorney fees. Her financial condition is not such as to justify this court awarding her attorney fees on appeal. Furthermore, while we affirm, we do not view Mr. LaFriniere's appeal as frivolous or made in bad faith. Thus, we hold that she is not entitled to attorney fees incurred in responding to this appeal.

Affirmed.

[ ]1 Minn. Stat. § 518.552, subd. 2, provides a list of eight factors the trial court must consider when deciding whether to order temporary or permanent maintenance:

(1) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently * * *;

(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party's age and skills, of completing education or training and becoming fully or partially self-supporting;

(3) the standard of living established during the marriage;

(4) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

(5) the loss of earnings, seniority, retirement benefits, and other employment opportunities foregone by the spouse seeking spousal maintenance;

(6) the age, and the physical and emotional condition of the spouse seeking maintenance;

(7) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance;

(8) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party's employment or business.