This opinion will be unpublished and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

C1-96-1365

In Re the Marriage of:

Anne Dorweiler, petitioner,

Respondent,

vs.

Julius L. Dorweiler,

Appellant.

Filed January 29, 1997

Affirmed in part and reversed and remanded in part.

Amundson, Judge

Concurring specially, Schumacher, Judge

Hennepin County District Court

File No. 62215N

Louis M. Reidenberg, Ellen E. Barton, Louis M. Reidenberg Law Offices, 625 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for Respondent)

Richard J. Schieffer, Johnson & Wood, P.A., 1055 East Wayzata Boulevard, Suite 300, Wayzata, MN 55391 (for Appellant)

Considered and decided by Klaphake, Presiding Judge, Schumacher, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Appellant Julius Dorweiler challenges the district court's award of spousal maintenance and attorney fees to respondent Anne Dorweiler. We affirm in part and reverse and remand in part.

FACTS

The parties were married in 1954 and their marriage was dissolved in 1978. During the marriage, appellant worked for the Department of Transportation and respondent was a homemaker who also worked minimally outside the home. In the dissolution stipulation appellant was awarded his pension, which was not valued, and the marital property was otherwise divided. Spousal maintenance was reserved.

From 1978 until 1994, respondent worked at a variety of jobs, but her mainstay was her accounting work. In the 1980s, she began her own accounting business. She maintained one house-cleaning job, producing minimal income. She also rented rooms to Taiwanese exchange students. Appellant continued working for the government and earned additional income as a rodeo announcer and from selling trailers. In 1990, appellant retired and began receiving his pension and annuities.

By the beginning of 1994, respondent was experiencing financial difficulties, began anticipating retirement, and petitioned for spousal maintenance. The referee awarded respondent $500 in spousal maintenance per month and $5,000 in attorney fees. The referee also decided that the value of appellant's pension in excess of its value at the dissolution date should be considered income. He appealed to the district court.

The district court: (1) vacated the referee's award; (2) allotted respondent $1000 per month spousal maintenance; (3) concluded that appellant should pay 60% of respondent's attorney fees; and (4) remanded to the referee to determine the amount of attorney fees. The referee concluded that appellant owed $10,530 in attorney fees. This appeal followed.

D E C I S I O N

This court will uphold a district court's findings of fact regarding spousal maintenance unless they are clearly erroneous. Kottke v. Kottke, 353 N.W.2d 633, 635 (Minn. App. 1984), review denied (Minn. Dec. 20, 1984). This court reviews maintenance determinations to decide whether the district court abused its wide discretion. See Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

I. Jurisdiction

Appellant contends that the district court lacked jurisdiction to modify the original dissolution stipulation because the court did not find that any of the conditions existed that would statutorily justify modifying a final maintenance decree according to Minn. Stat. § 518.64, subd. 2(d). However, Minn. Stat. § 518.55, subd. 1 allows a district court to "reserve jurisdiction of the issue of maintenance for determination at a later date," as the court did in this case. Further, the Minnesota Supreme Court has held that it is reversible error for a district court to reserve the issue of spousal maintenance and later decline to award maintenance because it does not have jurisdiction. Harder v. Harder, 312 Minn. 300, 302, 251 N.W.2d 703, 704 (1977). Because the district court reserved the right to determine maintenance at a later date, the court had jurisdiction to determine spousal maintenance.

II. Maintenance

Appellant asserts that the district court relied upon clearly erroneous and insufficient findings to assess respondent's needs and capabilities to provide for herself. Appellant suggests that: (1) respondent is receiving more for renting rooms than her tax returns indicate; (2) respondent may rent additional rooms; and (3) respondent's business has a greater income-producing capacity than the court estimated.

A district court is only at liberty to award maintenance if, among other things, the spouse petitioning for maintenance either lacks sufficient property, including marital property, to provide for reasonable needs, or if that spouse is unable to provide adequate self-support through appropriate employment. See Minn. Stat. § 518.552, subd. 1 (1994). The court must also determine that the spouse ordered to provide maintenance is able to pay. See id., subd. 2(g).

The district court found that respondent had picked up some additional income from renting rooms in her home to foreign students. The district court found that respondent owned NSP and Hamel stock. The court also found that respondent's net profit from her business in 1994 was $10,179, yielding a net monthly income of $605 before any I.R.A. deduction. The court found that her expenses totaled $2,000 per month and concluded that respondent does not have the ability to meet her needs.

We agree with appellant that the district court's findings were insufficient to conclude that respondent was incapable of supporting herself. Respondent has previously rented rooms to students, but stated that she doubted that she would be able to find other foreign students to rent to in the future because of immigration restrictions on Taiwanese students. The referee stated that "presumably, the petitioner could rent to other individuals." The district court did not include findings detailing how much additional income she may obtain from renting rooms. Despite mention of the NSP and Hamel stock, the court did not include dividend income in its calculation of respondent's total income. Further, respondent earns approximately $40 per month in house-cleaning that the court did not include. Thus, the district court's findings regarding respondent's income were clearly erroneous.

Appellant next suggests that the district court's finding that respondent's expenses are $2000 per month is not substantiated by the evidence because the court's calculation did not reflect that some of respondent's expenses had been (or soon would be) eliminated. The record before this court reveals very little to shed light on appellant's allegation on this issue. The burden of showing error rests upon appellant. Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464-65 (1944). It is also appellant's duty to order the transcript. See Minn. R. Civ. App. P. 110.02. Because appellant did not provide this court with a transcript or adequate evidence that there were reductions in respondent's expenses, this court will not conclude that the district court's finding regarding respondent's expenses was clearly erroneous.

Appellant contends that the district court's findings detailing his income were clearly erroneous. He asserts that the district court erred by considering his gross income instead of his net income. The district court must make a determination of the payor spouse's net pay. Kostelnik v. Kostelnik, 367 N.W.2d 665, 670 (Minn. App. 1985), review denied (Minn. July 26, 1985). Because: (1) the district court found that appellant "receives current monthly annuity payments of $2994;" (2) in an answer to an interrogatory, appellant stated that he received a net pension payment of $2,012.95 per month; and (3) the Office of Personnel Management indicated that his gross income was $2,994, we conclude that the district court's finding regarding appellant's monthly pension income was based on gross income and, therefore, was clearly erroneous.

Appellant next alleges that this court should consider the district court's calculation of his income relative to his 1993 and 1994 income tax returns. Appellant had not filed those returns before the district court's hearing and they were not properly submitted to the district court. This court will consider "only those issues that the record shows were presented and considered by the district court in deciding the matter before it." See Thayer v. American Fin. Advisers, Inc., 322 N.W.2d 599, 604 (Minn. 1982). Thus, we will not consider the income tax returns.

Finally, appellant states that the district court's finding regarding his expenses was clearly erroneous because it was based on respondent's calculation of his expenses rather than his budget. Appellant did not directly submit a budget of his expenses to the court. However, there was a budget that he created in the record from his response to appellant's written interrogatory requests. In a case in which a party failed to submit a complete picture of his expenses to the district court, this court held that that party could not complain because his inadequate submission of documentation led, at least in part, to the district court's determination. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987). We will not require the district court to recalculate appellant's expenses because appellant's failure to submit a budget, at least partially, resulted in the court's determination.

We conclude that two of the district court's findings were clearly erroneous. We reverse and remand for more adequate findings regarding respondent's ability to support herself and appellant's net income.

III. Pension

Appellant contests the district court's decision to consider part of his pension income, rather than property. He contends that the original dissolution stipulation awarded him his full pension, including future interests, as property. Pensions may be property or income, but not both. Taylor v. Taylor, 329 N.W.2d 795, 797-98 (Minn. 1983).

The referee and district court impliedly agreed with respondent that appellant's full pension could not have been awarded him in the original dissolution stipulation because the law did not recognize that pensions were either property or income until after the entry of judgment pursuant to the stipulation. See Elliot v. Elliot, 274 N.W.2d 75, 77 (Minn. 1978). Thus, the referee and the district court determined that once appellant received the value of the pension at the time of the divorce, any excess or additional payments were available to be considered income for spousal maintenance. See Kruschel v. Kruschel, 419 N.W.2d 119, 123 (Minn. App. 1988) (once pension recipient has received from the pension an amount equivalent to its value as determined in the original property distribution, the pension may be considered income for spousal maintenance purposes). We agree.

Appellant further asserts that the district court incorrectly relied upon Kruschel because that case was a maintenance modification case and this is a case requiring an original determination of spousal maintenance. We disagree. In the most analogous case, the original dissolution decree was also issued before Elliot and this court determined that pensions may be property or income. Neubauer v. Neubauer, 433 N.W.2d 456 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989). In Neubauer, as here, the district court made no specific reference to the value of appellant's pension in the dissolution decree. See id. The district court in that case decided to characterize the pension as property or income for the first time during a subsequent action. See id. This court held that the district court may use its discretion either to treat the pension as property or to treat the original award as property and the excess value of the pension as income under the Kruschel formulation. See Neubauer, 433 N.W.2d at 461-62. We are not persuaded that the distinction between a modification case and an original determination case makes a difference given such similar circumstances. Therefore, we conclude that the district court was well within its discretion to use the principles in Kruschel to make a determination in this case.

In the alternative, appellant asserts that the district court denied him the full value of his property award by calculating the value of the pension in 1978 dollars. Because this court, in Kruschel, held that a district court may determine the value of a pension as of the date of the original property distribution and deem proceeds from the pension after that date to be income for maintenance purposes, we disagree and conclude that Kruschel anticipated that the increased value of the pension would be income. See Neubauer, 433 N.W.2d at 123.

Appellant also asserts that he contributed to the growth of the pension since 1978 and that the amount that he contributed to his pension solely from his efforts should not be considered income. In an analogous case, this court held:

[O]nce the pension becomes payable, the pensioner may present evidence showing what part of the post-dissolution salary increases are attributable solely to his own efforts, such as increments resulting from promotions. Those amounts may be excluded from division.

Petschel v. Petschel, 406 N.W.2d 604, 607 (Minn. App. 1987). However, appellant did not submit evidence that his pension increased due to promotions or any other increased effort on his part. Absent presentation of evidence to show that the district court erred, this court will not reverse. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949).

IV. Attorney Fees

Appellant challenges the district court's award of attorney fees to respondent, alleging that: (1) respondent is capable of paying her attorney fees; (2) he is not able to pay the attorney fees; (3) respondent contributed to the length and expense of the proceedings; and (4) respondent's attorney's bills are duplicitous, inflated, and do not reflect amounts customarily charged.

A district court may award attorney fees "in an amount necessary to enable a party to carry on or contest" a case if: (1) the fees are necessary for a party to assert rights in good faith; (2) the party assessed the fees has the ability to pay them; and (3) the party receiving the fees does not have the means to pay fees. See Minn. Stat. § 518.14, subd. 1 (1994). This court reviews awards of attorney fees for abuse of discretion. See Davis v. Davis, 306 Minn. 536, 538, 235 N.W.2d 836, 838 (1975), cert. denied, 426 U.S. 943 (1976).

Because the district court did not make sufficient findings regarding appellant's or respondent's income, this court does not have sufficient information to decide whether the district court's calculation of either party's means constituted an abuse of discretion. However, we conclude that the district court did not abuse its discretion by ignoring respondent's contribution to the length and expense of proceedings because the court's 60/40 split of the attorney fees obligation shows that the district court took into account both parties' responsibility for respondent's fees. Finally, because the referee reviewed respondent's attorney's billing ledger delineating amounts for exclusion and because the proceeding's duration was lengthy, we conclude that the district court did not abuse its discretion by failing to find that the amount of attorney fees respondent requested was excessive.

V. Fees on Appeal

Respondent requests that this court award her $3,500 in attorney fees for this appeal on the grounds that the appeal was frivolous or in bad faith. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991). The appeal in this case was neither frivolous nor in bad faith. Additionally, this court has discretion to decide whether the award of fees is necessary according to Minn. Stat. § 518.14. See Gales v. Gales, 553 N.W.2d 416, 422 (Minn. 1996). We decline to award respondent attorney fees on appeal.

Affirmed in part and reversed and remanded in part.

SCHUMACHER, Judge (concurring specially).

I concur with the majority's conclusions that this case must be remanded for the district court to readdress respondent's ability to support herself and appellant's net monthly income. I also concur with the majority's analysis of the attorney fee issues. I write separately, however, to address the issue of appellant's pension.

The majority concludes that appellant could not have received the entirety of his pension in the dissolution because the parties' stipulation predates Elliot v. Elliot, 274 N.W.2d 75 (Minn. 1978), the first case to recognize pensions as property divisible in a dissolution. I am not convinced this is the case. Since before Elliot, parties to a dissolution have been able to stipulate to that which a court could not order. LaBelle v. LaBelle, 302 Minn. 98, 115-16, 223 N.W.2d 400, 410 (1974). Thus, even if the district court lacked the ability to divide appellant's pension before Elliot, the parties still had the ability to do so by stipulation. Here, the parties' stipulated judgment states that appellant received "all right, title and interest in and to his * * * retirement plan, free and clear from any claim by [respondent]." This language seems to unambiguously show that all aspects of the pension were awarded to appellant. See Robertson v. Robertson, 376 N.W.2d 733, 735-36 (Minn. App. 1985) (judgments to be enforced according to their terms unless ambiguous). Alternatively, if the stipulated judgment is ambiguous, a remand for the district court to address the parties' intent is proper. See Koecher v. Koecher, 374 N.W.2d 542, 546 (Minn. App.1985) (district court may interpret ambiguous judgment), review denied (Minn. Nov. 26, 1985). If, on such a remand, the district court rules that the parties intended that appellant receive the entire pension, the pension would be unavailable to support a maintenance award. Kruschel v. Kruschel, 419 N.W.2d 119, 123 (Minn. App. 1988).

Also, the majority cites Neubauer v. Neubauer, 433 N.W.2d 456 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989) to affirm the district court's decision to treat, as income, that portion of appellant's pension exceeding the value of the pension at the time of the dissolution. In Neubauer, this court ruled that, in a maintenance modification proceeding, the district court had the discretion to decide whether to treat a pension which had not been mentioned or discussed in the dissolution judgment as either income or property. 433 N.W.2d at 461-62. Like the majority, I reject appellant's claim that Neubauer is distinguishable from this case because it involved a maintenance modification while this case involves the original setting of maintenance. This case, however, involves a stipulated judgment which not only mentions the pension, but which specifically awards the pension to appellant as property. As such, I would conclude that the breadth of a district court's discretion described in Neubauer is not enough to allow the district court here to treat a portion of appellant's pension as income. If a marital portion of this pension were left undivided at the time of the dissolution, and I am not sure that happened here, I would remand for the district court to divide the undivided portion of the pension as property. See Neubauer 433 N.W.2d at 461 n.1 (property not divided in a prior dissolution judgment may be divided as "omitted property").