This opinion will be unpublished and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

C1-96-1351

In Re the Marriage of:

Linda Scharpe, f/k/a/ Linda Lucille Voigt, petitioner,

Respondent,

vs.

Warren Winfred Voigt,

Appellant.

Filed November 26, 1996

Reversed and Remanded

Parker, Judge

Scott County District Court

File No. 9309566

Steve L. Bergeson, 111 South Broadway, Jordan, MN 55352-1505 (for respondent)

Gerald W. Von Korff, Rinke-Noonan, 700 Norwest Center, 400 First Street South, St. Cloud, MN 56302 (for appellant)

Considered and decided by Huspeni, Presiding Judge, Parker Judge, and Lansing, Judge.

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

PARKER, Judge

On remand from this court, the district court denied Warren Voigt's motion to modify maintenance. He appeals, arguing that the district court erred by deciding the motion without a hearing, thus depriving him the opportunity to address his change of circumstances since the judgment and decree. We reverse and remand.

D E C I S I O N

According to the 1993 judgment and decree, Voigt was required to pay $1,600 per month permanent spousal maintenance to respondent Linda Scharpe. On December 23, 1994, and July 12, 1995, the district court denied Voigt's motions to modify his maintenance obligation. Voigt subsequently appealed, and we reversed and remanded

for the district court to examine the change in circumstances since the 1993 judgment and decree and to consider modification of maintenance accordingly.

In an accompanying footnote, we stated:

We note that on remand Voigt should be allowed to argue that the December 23, 1994, order was misinterpreted by the July 12, 1995, order.

On May 21, 1996, the district court again denied Voigt's motion to modify, without a hearing and without submission of written arguments by the parties.

The district court is not ordinarily required to hold an evidentiary hearing on a motion for modification of maintenance. Minn. Stat. § 518.64, subd. 2(e) (Supp. 1995). Nevertheless, our specific remand instruction required, at the very least, that the district court allow the submission of legal memoranda and, if requested by counsel, oral argument on whether the cumulative changes to Voigt's earnings and expenses constituted such a substantial change of circumstances as to warrant modification. See Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn. App. 1991) (modification warranted when the cumulative changes, since the last order setting the maintenance level, constitute a substantial change of circumstances). By rendering a decision on remand without allowing the parties the opportunity to present arguments, the district court failed to execute this court's instructions. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (district court's duty on remand is to execute the mandate of the remanding court strictly according to its terms).

On remand, the district court examined the cumulative changes since the judgment and decree, the last order setting the level of maintenance. As found and used in the judgment and decree, Voigt's monthly income totaled $3,652, which included $2,260 in wages and $1,292 in expense reimbursement. The $1,600 monthly maintenance award was 44 percent of his net income. It is undisputed that Voigt's employer now reimburses him only for actual expenses incurred, and Voigt makes little to no profit from this reimbursement. In addition, Voigt incurred substantial medical expenses related to a heart attack. In its May 21, 1996, order, the district court found that Voigt's average monthly income totaled $2,584.35, which included $2,343 in wages and $241.35 for expense reimbursement. Further, Voigt's monthly medical expense related to the heart attack is $250. Although the $1,600 monthly maintenance award now constituted 62 percent of Voigt's monthly net income, the district court concluded that Voigt failed to show a substantial change of circumstances.

We hold as a matter of law that Voigt's decrease in monthly income of more than $1,000, coupled with the $250 monthly medical expense, constitutes a substantial change of circumstances making the terms of the original award of maintenance unreasonable and unfair. Minn. Stat. § 518.64, subd. 2. Since the parties have already been put to great attorney fee expense, and to conserve future expenses as well as the district court's limited resources, we remand for an evidentiary hearing on the issue of a modified maintenance award. We direct the district court to reopen the record and examine all relevant factors in determining the proper amount of maintenance. Oral argument will be particularly necessary because it appears that Voigt's reimbursement invoices require explanation.

Reversed and remanded.