This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-1127

In Re the Marriage of:

Steven John Hanner,

petitioner, Respondent,

vs.

Judith Jo Hanner,

Appellant.

Filed December 3, 1996

Affirmed

Randall, Judge

Huspeni, Judge, Concurring in Part,

Dissenting in Part

Washington County District Court

File No. F0-94-2823

D. Patrick McCullough, Dale J. Schoonover, McCullough, Smith, & Wright, P.A., 905 Parkway Drive, St. Paul, MN 55106 (for appellant).

Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff, & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for petitioner, Respondent).

Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Thoreen, Judge[*].

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

RANDALL, Judge

Appellant challenges the duration and amount of spousal maintenance awarded by the trial court and argues the trial court abused its discretion when it refused to award her reasonable attorney fees. Appellant further argues that the trial court erred when it failed to divide respondent's defined and vested benefit plan pursuant to the Janssen formula. We affirm.

FACTS

Following a 28 year marriage, respondent Steven Hanner commenced this dissolution proceeding in April 1994. The parties have two children, Mark and Carolyn, both emancipated. During the marriage, the couple enjoyed a middle class standard of living. Appellant Judith Jo Hanner served primarily as a homemaker, responsible for maintaining the homestead and caring for the children. Respondent has a college degree and is employed as an Administrative Manager by the 3M Corporation, earning $84,000 per year. Appellant is currently employed at Cub Foods, working 30-32 hours per week at $7.82 an hour. During their marriage, appellant had a limited work history. She has worked part-time as a bank teller on two occasions, once being promoted to Bank Manager, as a group sales coordinator for the Chimera Theater, and as an office manager for a real estate company. In May 1992, appellant, who has a high IQ, returned to school and received her bachelor's degree in English and communications from the University of Wisconsin-River Falls, graduating summa cum laude.

Over the years, appellant has suffered from various medical and psychological problems. In June 1993, appellant was forced to discontinue her employment as office manager for the real estate company because of heart irregularities and high cholesterol. Nearly a year later, appellant underwent surgery for hemorrhoids. Due to continuing bowel problems, appellant underwent corrective surgery in December 1994. According to her surgeon, appellant has done well and is back to near normal levels.

In June 1994, appellant was diagnosed as suffering from a major depressive disorder and placed on Prozac and Trasdione. She is currently in therapy and continues to be prescribed medications for this depression. Dr. John Cronin, the psychologist who evaluated appellant per respondent's request, noted that although several of the evaluations he performed indicated scores above the normal range, appellant should be able to return to the "rigors of the job market" by the end of 1995 and that in his estimation, "her psychological and psychiatric needs would, more likely than not, be met within this period." He ultimately concluded that she would be "just fine in taking care of herself in the future."

The parties entered into a partial marital termination agreement, stipulating to many issues with regard to their dissolution. The remaining issues of spousal maintenance, attorney fees, and division of respondent's pension were submitted to the trial court through written submissions in lieu of a trial and live testimony.

The trial court determined respondent's reasonable monthly living expenses to be $1,773. Although appellant listed her reasonable monthly expenses to be $4,582, the trial court found her monthly expenses to be $2,300 and her net monthly income to be approximately $875. The trial court awarded appellant temporary spousal maintenance in the amount of $2,000 per month for a five year period with a step-down reduction of $100 per month each year. The trial court denied appellant's request for attorney fees and declined to divide respondent's ERIP plan pursuant to the formula set forth in Janssen v. Janssen, 331 N.W.2d 752, 756 (Minn. 1983).

Appellant filed a motion for amended findings or a new trial, requesting a permanent award of spousal maintenance in the amount of $2,800 per month with no step-down reduction, attorney fees, and that respondent's ERIP plan be divided according to the formula set forth in Janssen. Respondent brought a counter-motion asking that his spousal maintenance obligation be reduced to $750 per month with a step-down reduction.

The trial court refused to award permanent spousal maintenance or increase the amount of the award, but it did eliminate the step-down reduction of $100 per month per year. The trial court denied both parties' motions in all other respects. This appeal follows.

D E C I S I O N

The trial court has broad discretion in determining the amount and duration of spousal maintenance and its decision will not be reversed absent an abuse of that discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). An abuse of discretion will be found where the trial court reaches a clearly erroneous conclusion against logic and the facts on record. Zamora v. Zamora, 435 N.W.2d 609, 611 (Minn. App. 1989). Appellant argues that given her medical history, age, and limited work history, it is uncertain that she will ever become self-supporting and the trial court was therefore required to award permanent, rather than temporary, spousal maintenance pursuant to Minn. Stat. § 518.552, subd. 2 (1994).

The trial court may award spousal maintenance upon a showing that a party lacks sufficient resources to provide for reasonable needs and is unable to provide for reasonable self-support. Minn. Stat. § 518.552, subd. 1 (1994); Reif v. Reif, 426 N.W.2d 227, 230 (Minn. App. 1988). The maintenance order shall be in the amounts and for periods of time, either temporary or permanent, as the court deems just. Minn. Stat. § 518.552, subd. 2.

After considering the statutory factors, the trial court here concluded that an award of temporary spousal maintenance was appropriate. The trial court specifically found (1) that after the sale of the homestead, the parties' assets would be equally divided, (2) that given appellant's employment history she has the ability to readily incorporate new skills and training, (3) that although appellant has suffered from various physical and mental problems in the past those problems had been successfully resolved through treatment and they would continue to improve, and (4) that within the next five years appellant is capable of obtaining employment that should provide her with an annual income of approximately $20,000 to $25,000. The trial court determined a temporary award of maintenance was appropriate because it would "allow [appellant] to strengthen her physical and mental health, as well as obtain employment in her chosen field equal to her apparent abilities." The trial court rejected appellant's request for an award of permanent maintenance stating,

Although it can be argued that there is some level of 'uncertainty' in any dissolution proceeding, the Court concludes that given the facts and evidence before it, there is no uncertainty as to Respondent's ability to become self-supporting within the parameters of the Court's award of temporary maintenance.

We agree.

As the supreme court noted in Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987):

An award of temporary maintenance is based on the assumption that the party receiving the award not only should strive to obtain suitable employment and become self-supporting but that he or she will attain that goal.

More recently, the court held that

our family law jurisprudence establishes that, to consider an award of permanent maintenance, there must be an exceptional case such as the dissolution of a long-term traditional marriage in which there is 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.

Gales v. Gales, 533 N.W.2d 416, 421 (Minn. 1996) (citing McCelland v. McCelland, 359 N.W.2d 7, 10 (1984)) (emphasis added). The fact that a dissolution of a long-term traditional marriage involves an older spouse is not dispositive of whether a trial court must award permanent maintenance. The trial court must conclude that there is little likelihood of that spouse achieving self-sufficiency. Gales, 553 N.W.2d 419-20 (to award permanent maintenance, the trial court "must determine that there are statutory factors present"); see also McCelland, 359 N.W.2d at 10 (noting that "permanent [maintenance] awards are to be restricted to 'certain exceptional cases' where there is little likelihood of the once-dependent spouse's attaining self-sufficiency."). The evidence submitted to the trial court shows that appellant's medical problems have been successfully resolved, that appellant is way above average intelligence and that she recently obtained her college degree. Her work history indicates that she can be successful in the work place, even attaining managerial positions. We conclude the trial court did not abuse its discretion when it found no uncertainty that appellant will be able to return to the workplace and become self-supporting. We note further, that in the event appellant is unable to become self-sufficient, she is free to go back into court and move for a permanent award. Appellant concedes she has this right.

Next, appellant argues that the trial court erred in setting spousal maintenance at $2,000 per month instead of $2,800. Appellant asks this court to order a higher amount of spousal maintenance, or in the alternative to remand the issue, directing the trial court to set award the award at a higher amount.

A trial court is afforded wide discretion in determining spousal maintenance and its decision will not reversed absent an abuse of that discretion. Erlandson, 318 N.W.2d at 38. "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous." Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). The factors to be considered in determining a maintenance award are set forth in Minn. Stat. § 518.552, subd. 2. "[The] basic consideration is 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." Krick v. Krick, 349 N.W.2d 350, 352 (Minn. App. 1984) (citing Erlandson, 318 N.W.2d 36).

Appellant claims that after taxes, the trial court's award of maintenance, along with her net monthly income, will leave her with a short fall between her monthly living expenses (as determined by the trial court) and her monthly income. According to appellant, the trial court's award will provide her with approximately $2,175 to meet $2,300 in living expenses. Appellant claims that respondent, after paying the current maintenance award of $2,000 and his monthly living expenses of $1,773, has a surplus income of over $780 per month. Further, appellant argues respondent will have a tax benefit in being able to deduct the maintenance he is paying. To that argument, respondent points out that because appellant indicated during the dissolution proceedings that she intended to reoccupy and acquire another homestead, she will be able to deduct all mortgage, interest, and real estate taxes. Thus, he argues that the normal tax consequences to both parties after a dissolution will be in place here. We agree.

Respondent correctly notes that appellant will receive the dividends from the parties' 3M stock which, at their present level, are approximately $750 per year.

We conclude the trial court did not abuse its discretion in awarding maintenance in the amount $2,000 per month. Pursuant to the Partial Marital Termination Agreement entered into by the parties, the trial court divided the marital estate equally. Appellant is to receive one-half of the net proceeds from the sale of the homestead and is to receive one-half of respondent's defined benefit plan. Appellant also received all of the parties' 3M stock. The trial court did not err when it concluded that appellant has sufficient property, along with her award of maintenance, to meet her reasonable needs. See Kohner v. Kohner, 358 N.W.2d 721, 722 (Minn. App. 1984) (holding the trial court did not abuse its discretion by awarding maintenance in the amount of $200 where obligee had monthly expenses of $1,338 but received $98 monthly net rental income from property awarded her in dissolution proceeding and $1000 per month in trust income), review denied (Minn. Feb. 27, 1985). While it appears that respondent is able to pay a higher amount of maintenance, the fact that a spouse is able to pay maintenance "does not * * * obviate the statutory mandate that the other spouse's own independent financial resources must be considered too." Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989).

II.

In dissolution proceedings, the trial court may, after considering the financial resources of the parties, require one party to pay the attorney fees of the other party. Minn. Stat. § 518.14, subd. 1 (1994). "The trial court's discretion is so broad in allocating attorney fees that a reviewing court rarely will reverse the trial court's determination." Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990). The denial of attorney fees cannot be characterized as an abuse of discretion, "[w]here the property and income of the parties is evenly balanced following reapportionment of the marital property and the award of permanent maintenance." Id. (citing Nardini, 414 N.W.2d at 199). Appellant challenges the trial court's decision not to award her reasonable attorney fees, arguing she is in need of assistance and appellant claims that respondent has the means to pay attorney fees.

Here, the trial court declined to award appellant attorney fees, stating that

[g]iven the financial situations of the parties after transfer of spousal maintenance and sale of the home, as well as the division of marital assets, including the award to [appellant] of significant 3M stock, the Court finds that each party should pay his or her own attorney's fees.

In its memorandum accompanying its Order Amending Judgment and Decree, the trial court further noted that appellant chose her attorney, "was aware of his fees, and had final authority over the amount of fees incurred."

The trial court considered the financial resources of the parties, their respective needs, and declined to award attorney fees. On these facts, we conclude the trial court properly exercised its discretion when it declined to award attorney fees.

III.

Finally, appellant argues the trial court abused its discretion when it refused to apply the Janssen formula to divide respondent's 3M ERIP plan.

A trial court has broad discretion in dividing property and its decision will not be reversed absent an abuse of discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). This court must affirm the trial court's division of property if it has "an acceptable basis in fact and principle even though this court may have taken a different approach." Servin v. Servin, 345 N.W.2d 754, 758 (Minn. 1984).

Here, the parties agreed to equally divide respondent's 3M ERIP plan as of December 31, 1994, the agreed-upon date of valuation. However, the parties could not agree on how to calculate the exact marital interest of the plan. Appellant argued that the plan should be divided according to the formula set forth in Janssen. The trial court instead agreed with respondent and awarded appellant half of respondent's accrued benefits under the plan as of December 31, 1994.

As respondent correctly notes, the Janssen formula was developed to handle pensions that are either nonvested or vested but unmatured because they contained contingencies on the actual payment of pension benefits. The Minnesota Supreme Court adopted the following language:

In those instances where it is difficult to place a present value on the pension or profit sharing interest due to uncertainties regarding vesting or maturation * * * then the trial court in its discretion may award each spouse an appropriate percentage of the pension to be paid 'if, as and when' the pension becomes payable. [Citations omitted.] The marital interest in each payment will be a fraction of that payment, the numerator of the fraction being the number of years (or months) of marriage during which benefits were being accumulated, the denominator being the total number of years (or months) during which benefits were accumulated prior to when paid. The trial court, when using this method of allocation, will retain jurisdiction and award the nonemployee spouse some percentage of the marital interest in each payment.

Janssen, 331 N.W.2d at 756.

Appellant argues that Janssen is appropriate because she is entitled to any future increase in respondent's salary, and hence benefits, because such an increase is a result of her support as a mother and homemaker during the parties' 28 year marriage. This argument circumvents the distinction between marital and nonmarital property. Minn. Stat. § 518.54, subd. 5 (1994), specifically provides that property acquired by a spouse after the valuation date is "nonmarital property." Here, any increase in respondent's pension will occur from those years he is single.

These facts are like the situation where, pursuant to the property division, one spouse receives the house while the other receives cash or its equivalent, a lien. Then, because the house is situated in a desirable part of town, it increases in value over the next few years, well over and above what the two parties and their appraisers agreed was the fair market value at the time of the divorce. It is undisputed that in such a case, all the overage goes to the spouse receiving the house.

Here, the trial court declined to apply Janssen, because unlike the facts in that case, respondent's pension is vested, matured, and capable of an immediate and a definite valuation. There is a fixed, defined figure for the court to divide. The trial court, in its discretion, split it evenly. While it is true that appellant cannot today cash out this amount, the same holds true for respondent. The trial court treated each party exactly alike, each receiving one-half of a vested and matured known figure. Respondent can quit his job in the near future and then both he and appellant, when the pension is payable, will receive an equal amount. Or respondent can exercise the option to keep on working, and then when he retires, his pension will be more than the share allotted to appellant, but the increase will be restricted solely to the years he worked while he was single.

After reviewing the purpose of the Janssen formula, and the facts of this case, we conclude that given the broad discretion afforded trial courts when deciding property, the trial court did not abuse its discretion when it apportioned respondent's 3M ERIP plan between the parties.

Affirmed.

HUSPENI, Judge (concurring in part and dissenting in part)

I concur in the determination of the majority that the trial court did not abuse its discretion either in setting the level of maintenance at $2,000 per month or in ordering each party to pay his or her own attorney fees. I respectfully dissent, however, on the issues of duration of maintenance and division of respondent's 3M ERIP Plan.

l. Duration of Maintenance

Minnesota Statutes § 518.552, subd. 3 (1994) provides in part:

Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.

(emphasis added); see Minn. Stat. § 645.44, subd. 16 (1994) ("'Shall' is mandatory").

I submit that, as a matter of law, this case contains the uncertainty addressed in the statute. The parties' marriage was one of 28 years and appellant was 48 when the marriage ended. She had been primarily a homemaker. Work outside the home was sporadic and part time until 1983, when appellant left the labor market to devote herself entirely to the care of an ill child. She returned to work for a few months in 1993. The trial court recognized respondent's "extensive health problems" in the three years preceding the divorce. These problems included gastro-intestinal tract difficulties, a variety of surgeries, and depression.

Had appellant's history concluded with these observations, I suspect the trial court would have recognized that this case required an award of permanent maintenance. But the trial court was apparently dazzled by appellant's I.Q. and recent academic accomplishments. It noted:

[Appellant] is a very capable and intelligent woman, with a recorded IQ score of 132. She possesses a bachelor's degree in English and communications from the University of Wisconsin-River Falls. Said degree was granted on May 24, 1992. A review of [appellant's] college transcripts indicates high academic achievement, and the Court notes that [appellant] earned a 4.0 grade point average during her studies at the university. Based upon the evidence, the Court finds that [appellant] has the ability to quickly incorporate new skills and training.

While an IQ of 132, a 4.0 grade point average, and a bachelor's degree in English and communications are laudable traits and achievements, they do not resolve the doubt about whether appellant can become fully rehabilitated after five years of maintenance. See Nardini v. Nardini, 414 N.W.2d 184, 197 (Minn. 1987) ("[b]eing capable of employment and being appropriately employed are not synonymous"). Maintenance should be permanent, subject to modification or termination in the happy event that appellant does realize full rehabilitation.[1]

The majority cites the Supreme Court's recent opinion in Gales v. Gales, 553 N.W.2d 416 (Minn. 1996). Gales is distinguishable on its facts. That case involved an 11-year childless marriage, a 32-year-old obligee, and a trial court that stated that rehabilitative maintenance was appropriate, but neglected to designate when payments would cease and then refused to modify the maintenance provision when asked to do so in post-trial motions. The Supreme Court found that the trial court abused its discretion in awarding permanent maintenance.

I submit that the decision in Gales supports an award of permanent maintenance to appellant here. The Supreme Court, in effect, described appellant when it observed that the candidate for permanent maintenance would be "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." 553 N.W.2d at 421. I would remand the maintenance issue to the trial court with direction to award appellant permanent maintenance in the sum of $2,000 per month.

2. The 3M ERIP Plan

Valuation and division of pension plans at the time of divorce have been the subject of numerous Minnesota cases throughout the last 20 years. DuBois v. DuBois, 335 N.W.2d 503 (Minn. 1983); Janssen v. Janssen, 331 N.W.2d 752 (Minn. 1983); Taylor v. Taylor, 329 N.W.2d 795 (Minn. 1983); Jensen v. Jensen, 276 N.W.2d 68 (Minn. 1979); Elliott v. Elliott, 274 N.W.2d 75 (Minn. 1978). Review of these cases convinces me that while trial courts are accorded broad discretion both in valuing and in dividing pension plan interests, that discretion is not unlimited. Two methods of dividing pension plan interests seem to have evolved: (1) determine the "present value" of the marital portion of the pension and divide that value in some proportion between the parties as part of the overall marital property division, while leaving the pension interest, in specie, with the party in whose name that interest accrued; or (2) in cases where "present value" is difficult to ascertain,

award each spouse an appropriate percentage of the pension to be paid "if, as, and when" the pension becomes payable. The marital interest in each payment will be a fraction of that payment, the numerator of the fraction being the number of years (or months) of marriage during which benefits were being accumulated, the denominator being the total number of years (or months) during which benefits were accumulated prior to when paid.

Janssen, 331 N.W.2d at 756 (quoting In re Marriage of Hunt, 397 N.E.2d 511, 519 (1979)). Case law regarding pension divisions is clear that the term "present value" is a term of art. It does not mean the value of a pension account as of the date the pension account is valued. It does mean

the sum which a person would take now in return for giving up the right to receive an unknown number of monthly checks in the future.

DuBois, 335 N.W.2d at 506 (emphasis in original). Alternatively stated "'[p]resent value' discounts an award to that amount which, if presently received, could be invested in order to yield the future sum." Id. (emphasis in original). It is because the concept of "present value" contemplates the present receipt and investment of funds in exchange for a foregoing of rights to receive pension payments in the future that:

It is not just or equitable to determine the present value of future pension rights, award the non-employee spouse one-half of that value, and then delay receipt of the non-employee spouse's share until the employee spouse retires or reaches the age of 65.

Id.

Here, while the language of the decree regarding division of the ERIP plan is not a model of clarity, both the parties and the majority opinion seem to accept that there has been an immediate division and award to appellant of half of the value of the plan as of December 31, 1994, but that her receipt of this interest has been delayed. If so, appellant is placed in a lose/lose situation; she has an asset worth a specific sum, but can neither realize the enjoyment of that asset at present nor enjoy the benefit of interest accrued by its investment at reasonable rates of interest. This result would seem to violate the principles of DuBois set out above.

The majority analogizes the ERIP plan division to that of homestead equity, where one spouse receives the house and the other cash or a lien. The analogy is apt. In the homestead example, however, the trial court may either provide for a "floating" lien (nonpossessory party receives a percentage of the equity--less certain fixed expenses--as determined at a future date and upon the happening of a "triggering" event) or the trial court may decree a fixed lien of certain value but delay enjoyment of the lien proceeds to a future time. If a "floating" lien is decreed, the nonpossessory party may benefit substantially by any increase in the market value of the homestead between the date of the divorce and the date of payment of the lien. If the trial court decides to decree a fixed lien, however, the court must either provide for a reasonable rate of interest on the lien or make specific findings as to why no interest was awarded. Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn. App. 1987).

Assuming that in this case an immediate pension interest division could be combined with a delayed receipt of that interest, under Thomas the district court would either have to award interest for the period between the pension interest's division and its receipt or explain why such interest was not awarded. Here, the district court apparently implemented an immediate division/delayed receipt of the pension but neither awarded interest for the period between division and receipt nor explained why such interest was not awarded.

Because the homestead equity and pension plan situations are analogous, I conclude that, at the very least, the issue of division of the ERIP plan should be remanded to enable the trial court either to provide for reasonable interest on appellant's share of ERIP or make specific findings as to why interest is not being awarded.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[ ]1The burden to demonstrate changed circumstances under a permanent maintenance award would be upon respondent, of course, whereas that burden under an award of rehabilitative maintenance would be appellant's. See Poehls v. Poehls, 502 N.W.2d 217, 218 (Minn. App. 1993) ("A designation of 'permanent maintenance' is a term of art which places the burden on the spouse obligor to demonstrate that a maintenance award should be lessened or terminated"); McClelland v. McClelland, 393 N.W.2d 224, 227 (Minn. App. 1986) (maintenance award, even if classified as permanent, may be modified "at any time during its effectiveness"), review denied (Minn. Nov. 17, 1986). Nonetheless, the drafters of the statute must be presumed to have been aware of this circumstance when they enacted as the public policy of the State of Minnesota, section 518.552, subd. 3, which requires that permanent maintenance be awarded where there is uncertainty about a maintenance recipient's need for it.