This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1112

In Re the Marriage of:

Roberta Rae Norman f/k/a

Roberta Rae Gerhardt, petitioner,

Respondent,

vs.

Ronald Erwin Gerhardt,

Appellant.

Filed January 28, 1997

Affirmed

Willis, Judge

Mower County District Court

File No. F8911323

Scott Richardson, Richardson Law Office, 132 Third Avenue Northwest, Austin, MN 55912 (for Respondent)

Bryan J. Baudler, Baudler, Baudler, Maus & Blahnik, 108 North Main Street, Austin, MN 55912 (for Appellant)

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Willis, Judge.

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

WILLIS, Judge

Appellant Ronald Gerhardt appeals from the district court's denial of his motion to modify the spousal maintenance award to respondent Roberta Norman. Gerhardt claims Norman's substantial increase in salary constitutes a substantial change in circumstances that renders the original award unfair. We affirm.

FACTS

In June 1992, the parties' 23 year marriage was dissolved. The district court found that because Norman was a homemaker during most of the marriage, she did not attain the employment status and income that she would have if she had remained a nurse full-time throughout the marriage. The district court noted the parties' disparate incomes and earning capacities, computed their projected monthly expenditures, and ordered Gerhardt to pay Norman $700 monthly in permanent maintenance.

In January 1996, Gerhardt filed a motion to eliminate, or alternatively, to reduce, maintenance because Norman's income had increased from a net income of $17,400 to a gross income of approximately $50,000 per year.[1] Following a hearing, the district court denied Gerhardt's motion, based on its findings that (1) Norman's expenses have increased since the dissolution due to her move from Austin to Overland Park, Kansas, for a new job, (2) her expenses continue to exceed her income, (3) a gap remains in the parties' respective earning capacities, and (4) Norman continues to require permanent maintenance.

D E C I S I O N

To modify a spousal maintenance award, the moving party must show both (1) that there has been a substantial change in a party's earnings, need, or cost of living and (2) that the current terms of the decree are unreasonable and unfair as a result of the change. Rapacke v. Rapacke, 442 N.W.2d 340, 343 (Minn. App. 1989); Minn. Stat. § 518.64, subd. 2(a) (1996). The district court "should modify [a maintenance] award only when clear proof of facts show that a substantial change in circumstances renders modification equitable." Halvorson v. Halvorson, 402 N.W.2d 168, 171 (Minn. App. 1987). If a substantial change in circumstances is shown, the court must consider the standards for determining maintenance found in Minn. Stat. § 518.552 (1996). Rapacke, 442 N.W.2d at 343.

The purpose of maintenance is to provide for the recipient spouse's needs after divorce, not to provide the spouse with a lifetime profit-sharing plan. Snyder v. Snyder, 298 Minn. 43, 53, 212 N.W.2d 869, 875 (1973). A court may grant a spouse maintenance if it finds that, considering the standard of living established during the marriage, the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs and cannot provide adequate self-support through employment. Minn. Stat. § 518.552, subd. 1. The court must determine the amount and duration of the maintenance order after considering all relevant factors, including (1) the financial resources of the party seeking maintenance, (2) the time the recipient needs to acquire education or training leading to appropriate employment, (3) the couple's standard of living during the marriage, (4) the duration of the marriage and the length of a homemaker's absence from employment, (5) the employment opportunities foregone by the spouse seeking spousal maintenance, (6) the age and health of the spouse seeking spousal maintenance, (7) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance, and (8) each party's contribution in acquiring the marital property. Id., subd. 2. Absent an abuse of discretion, this court will not disturb a maintenance determination. Halvorson, 402 N.W.2d at 171.

Gerhardt contends the district court erred by denying his motion to modify the maintenance award because the significant increase in Norman's income since the dissolution is a significant change in circumstances that renders the original maintenance award unfair. Gerhardt argues the district court's statement that

[c]urrent case law does not classify a rise in the obligee's income as a substantial change in circumstances which will justify modifying a permanent maintenance award

shows that it disregarded the provisions of Minn. Stat. § 518.64, subd. 2. We disagree. Although a party's substantially increased income is a ground to modify maintenance, the party seeking to modify maintenance also must show that the increase makes the terms of the maintenance order unreasonable or unfair. Rapacke, 442 N.W.2d at 343.

[R]ecipients of permanent maintenance, once the decision has been made to award permanent rather than temporary maintenance, are not automatically penalized by loss of their permanent maintenance if, following a dissolution in which they were employed at that time, their earnings increase through the years. Permanent maintenance is compensatory in nature.

Borchert v. Borchert, 391 N.W.2d 74, 76 (Minn. App. 1986).

At the time of dissolution of the parties' marriage, Norman had a net income of $17,400 and Gerhardt had a net income of $42,000. Four years later, the district court found Norman's annual gross income to be $50,000 and Gerhardt's annual gross income to be $73,000.[2]

Although Norman's income has increased significantly, the evidence shows that Norman's need for maintenance has not decreased. See Halvorson, 402 N.W.2d at 172-73 (concluding that, because husband did not show that wife's need for maintenance had substantially decreased, district court did not abuse its discretion in denying husband's motion to terminate maintenance even though both parties' incomes increased from the time of dissolution). The record supports the district court's finding that Norman's monthly expenses are $3653, due to increases in the cost of living and increased expenses arising from Norman's new job. Moreover, the record shows that Norman's monthly net income at the time of the district court proceedings was approximately $3000 per month.[3] Thus, there continues to be a disparity of approximately $653 between Norman's monthly expenses and her monthly net income.

The district court noted that Gerhardt did not present evidence of his personal monthly expenses, independent of expenses connected with his remarriage. See Halvorson, 402 N.W.2d at 172 (concluding that remarriage is an insufficient change of circumstances to support a termination of maintenance). Moreover, Gerhardt conceded he is able to pay his current maintenance obligation of $700 per month. See Minn. Stat. § 518.552, subd. 2(g) (listing ability to pay as a consideration in determining amount and duration of maintenance). The district court did not abuse its discretion by refusing to modify the maintenance award.

Affirmed.

[ ]1 In 1992, the district court made findings on the parties' net incomes and did not expressly determine their gross incomes at that time. The court based Gerhardt's ability to pay maintenance on his then-projected annual gross income of $67,000.

[ ]2 Gerhardt challenges the district court's finding that he has a monthly gross income of $6083, which translates to a monthly net income of $4224. Evidence at the hearing on Gerhardt's motion for amended findings shows that Gerhardt's annual gross income was approximately $73,000 ($6,083.33 per month). Thus, the district court did not clearly err in determining Gerhardt's income.

[ ]3 The evidence does not support the district court's finding that Norman has a net monthly income of $2860. Norman's January 1996 pay statement reflects an increase in net monthly salary to approximately $3000 and in the district court proceedings, she acknowledged that she has a net monthly income close to $3000.