This opinion will be unpublished and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

C1-96-1852

In Re the Marriage of:

Dawn M. Fortin, petitioner,

Respondent,

vs.

Darwin J. Fortin,

Appellant.

Filed April 15, 1997

Affirmed in part, Reversed in part, and Remanded

Kalitowski, Judge

Ramsey County District Court

File No. F9932065

J. Peter Wolf, Shelly D. Rohr, Goff, Kaplan & Wolf, P.A., 900 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102-1308 (for Respondent)

R.M. Bracewell, Kelly McSweeney, R.M. Bracewell & Assoc., 2420 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for Appellant)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Mulally, Judge.[*]

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

KALITOWSKI, Judge

Appellant Darwin J. Fortin challenges the district court's award of permanent spousal maintenance in the amount of $1,100 per month to respondent Dawn M. Fortin, arguing the district court failed to adequately consider the statutory factors of Minn. Stat. § 518.552, subd. 2 (1996), in making its determinations. Respondent seeks to recover attorney fees incurred on this appeal. We affirm in part, reverse in part, and remand.

D E C I S I O N

I.

The district court has broad discretion in awarding maintenance and it will not be reversed absent a clear abuse of discretion. O'Brien v. O'Brien, 343 N.W.2d 850, 852 (Minn. 1984). The underlying findings of fact must be affirmed if not clearly erroneous. Minn. R. Civ. P. 52.01.

A court may award 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, especially, but not limited to, a period of training or education, 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, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Minn. Stat. § 518.552, subd. 1 (1996). The maintenance order shall be in amounts and for periods of time as the district court deems just after considering all the relevant factors. Minn. Stat. § 518.552, subd. 2 (1996). Although there are eight statutory factors, "the issue is basically the financial needs of [respondent] and her ability to meet those needs balanced against the financial condition of [appellant]." Bourassa v. Bourassa, 481 N.W.2d 113, 115 (Minn. App. 1992) (citing Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982)).

Appellant argues the district court failed to adequately consider the statutory factors set forth in Minn. Stat. § 518.552 in awarding spousal maintenance. Specifically, appellant argues the district court erred in finding respondent's average gross monthly income to be $875. We disagree. Respondent's 1993 self-employment tax return indicates she has a gross monthly income of $865.70 and her 1995 calendar with notations of her business income indicates her gross monthly income to be $856. Because the district court apparently relied on the 1993 tax return and the 1995 working calendar in determining respondent's gross monthly income, we cannot say the district court's finding is clearly erroneous.

Appellant argues the district court erred in allowing respondent's income to be based on 22.50 hours per week, stating that the district court should impute an additional 21.50 hours of minimal wage or an additional 7.5 hours a week at an $11 per hour rate. We disagree. Based on respondent's testimony concerning her recent wrist surgery and problems with her right elbow, the district court found respondent cannot work more than 22.50 hours a week without difficulty due to her physical condition. We conclude the district court's finding is supported by the record and that the district court did not err in not imputing additional hours to respondent's working week.

Appellant argues the district court's determination of respondent's reasonable monthly expenses is erroneous. Specifically, appellant took issue with the district court's inclusion of an IRA contribution; a $100 transportation reserve; restaurant, entertainment, and vacation expenses; and $163 in taxes in determining respondent's reasonable monthly expenses. The record indicates the district court did not include the IRA contribution or the transportation reserve in determining respondent's monthly expenses. Further, the district court acted within its discretion in including $250 in restaurant, entertainment, and vacation expenses. Appellant, however, is correct in maintaining that the $163 in tax deduction should not be included in respondent's monthly expenses, because the taxes were already considered when the court calculated respondent's net monthly income. Accordingly, $163 should be subtracted from respondent's monthly expenses of $1,814, and we remand to the district court to determine appellant's maintenance obligation in light of this change in respondent's expenses.

Appellant also argues the district court failed to adequately consider appellant's needs and his ability to meet those needs while paying respondent spousal maintenance. Specifically, appellant argues the district court erred in finding appellant's monthly expenses to be $1,500, based on the two bank deposits of $2,961 and $1,902 made on December 5, 1994, and May 12, 1995. The district court determined as a result of these deposits that appellant's "monthly expenses are clearly less than claimed or his income is greater than shown." The district court's findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. Giving due deference to the district court, we conclude the district court's finding of appellant's monthly expenses is not clearly erroneous.

Appellant also argues the district court erred in awarding respondent permanent spousal maintenance. Minn. Stat. § 518.552, subd. 3 (1996) provides:

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.

Generally, permanent maintenance should be awarded in cases where there is an older, dependent spouse in a lengthy "traditional" marriage with little likelihood that the spouse will become self-sufficient. Gales v. Gales, 553 N.W.2d 416, 419 (Minn. 1996). Here, the district court found respondent will never be able to be self-supporting and maintain the standard of living established during the marriage, given her age, the length of the marriage, her lack of skills for high paying jobs, and retirement benefits. We conclude the record supports the finding and that an award of permanent spousal maintenance is appropriate.

Appellant further argues maintenance should not be permanent because if maintenance continues through his retirement, he will be required to pay respondent from his pension, which was awarded to him in the property distribution. We disagree. If appellant's retirement results in a substantial change in circumstances that make the maintenance award unreasonable or unfair, appellant can petition for modification of the maintenance award. See Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn. App. 1988) (when the original maintenance award requires a former husband to deplete his property award to pay maintenance, the award is subject to modification).

Lastly, appellant argues the district court abused its discretion in nearly doubling appellant's maintenance obligation without finding a substantial change of circumstances for either party. This argument lacks merit. First, the maintenance award resulted from an evidentiary hearing held after a remand, not a modification proceeding. Second, this court in its July 26, 1995, opinion stated that on remand the district court had the discretion to determine whether an evidentiary hearing was necessary. Therefore, the district court had discretion to take new evidence and make new findings in determining the maintenance award. Because the district court's award is supported by the evidence submitted at the evidentiary hearing, we conclude the district court did not abuse its discretion in setting the maintenance amount.

II.

On appeal, respondent seeks an award of attorney fees citing the number of appeals and the disparity in the parties' income. We conclude conduct-based attorney fees are not appropriate because neither appeal was frivolous or asserted in bad faith. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) ("[f]ee awards under Minn. Stat. § 518.14 may be based on the impact a party's behavior has had on the costs of litigation regardless of the relative financial resources of the parties").

Under Minnesota law, a court may award attorney fees, costs, and disbursements "in an amount necessary to enable a party to carry on or contest" a proceeding, providing the court 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 the proceeding;

(2) 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.

Minn. Stat. § 518.14, subd. 1 (1996). We conclude that, with the marital assets awarded to her in the property division, her business income, and her spousal maintenance, appellant has the means to pay her own attorney fees.

Affirmed in part, reversed in part, and remanded.

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