This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Gary A. Wessale,



Patricia E. Wessale,


Filed April 29, 1997


Davies, Judge

Carver County District Court

File No. F1902693

Marcia S. Rowland, Standke, Greene & Greenstein, Ltd., 17717 Highway 7, Minnetonka, MN 55345 (for appellant)

Timothy J. Looby, Melchert, Hubert, Sjodin & Willemssen, P.L.L.P., 121 West Main St., Suite 200, Waconia, MN 55387-1023 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Davies, Judge, and Mansur, Judge.[*]



Appellant challenges the district court's order requiring him to continue to pay spousal maintenance after retirement. We affirm.


Appellant Gary A. Wessale and respondent Patricia E. Wessale had been married for approximately 32 years when they divorced in April 1991. During the marriage, appellant was employed first at Honeywell and then at Alliant Techsystems as a punch press operator and later as a truck driver and material handler. Respondent worked as a church volunteer. The couple raised four children.

Appellant requested that his maintenance obligation be terminated, claiming that, due to early retirement, the current arrangement was unreasonable and unfair. The district court denied his motion, determining that appellant could work and earn $800 per month. The court ordered him to employ an occupational therapist and to register with a temporary employment agency. This appeal followed.


A district court has broad discretion to determine spousal maintenance and its decision will be affirmed if it has a reasonable and acceptable basis in fact. Peaslee v. Peaslee, 400 N.W.2d 447, 448 (Minn. App. 1987). Likewise, a decision to modify maintenance is in the sound discretion of the district court and will not be reversed except upon a clear showing of abuse of discretion. Fitch v. Fitch, 298 Minn. 529, 530, 213 N.W.2d 925, 927 (1974). In order for this court to find that the district court abused its discretion, there must have been a clearly erroneous conclusion that is against logic and the facts on record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).


Respondent argues that appellant's motion to modify should have been barred by res judicata. We disagree. Minn. Stat. § 518.64 permits either party to petition for a modification of maintenance based on substantially increased or decreased needs or resources. Rydell v. Rydell, 310 N.W.2d 112, 114 (Minn. 1981); see also Loo v. Loo, 520 N.W.2d 740, 743 (Minn. 1994) (absent enforceable waiver of statutory right to seek modification of maintenance award, party may move for modification based upon changed circumstances, although decisions on other issues have preclusive effect). The district court did not abuse its discretion.


Appellant argues that his maintenance obligation should have been terminated because the court found he retired in good faith. We disagree. Good faith retirement from a job does not by itself warrant the termination of maintenance at retirement. Before maintenance can be modified--at retirement or any other time--the obligor must show that there has been a substantial change in circumstances and that the change makes the terms of the maintenance order unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996); Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

Here, the district court concluded that, although appellant's early, good-faith retirement from his job was a "substantial change in circumstances," it did not make the terms of the maintenance order unreasonable or unfair. Specifically, appellant failed to provide information on his non-pension income, including how much he would receive from social security and workers' compensation. Because appellant failed to meet this burden, the district court did not abuse its discretion in declining to terminate appellant's spousal maintenance obligation.

The district court also declined to modify the maintenance award, notwithstanding retirement, because it found that appellant could obtain gainful employment with a new employer. Appellant cites no law or rule establishing that the district court erred in this holding. The district court did not abuse its discretion.

If appellant is unable to secure gainful employment after reasonable attempts to do so, there may then have occurred a change in circumstances that would support a motion to modify maintenance.


Appellant argues that the district court erred when it imputed contingent and undetermined future compensation in determining maintenance. This argument is without merit. Minn. Stat. § 518.552, subd. 2, provides that spousal maintenance is to be based on all relevant factors, including "the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance." Minn. Stat. § 518.552, subd. 2(g) (1996).

Social security benefits are among the financial resources that must be considered in determining spousal maintenance. Taylor v. Taylor, 329 N.W.2d 795, 799 (Minn. 1983). Once the benefits mature and appellant begins to receive them, they become part of appellant's income. See Elliot v. Elliot, 274 N.W.2d 75, 78 (Minn. 1978) (proper to consider future social security benefits as future income when determining maintenance). We see nothing wrong with the district court considering appellant's future social security benefits when determining maintenance.


The essential consideration in the award of maintenance

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.

Novick v. Novick, 366 N.W.2d 330, 334 (Minn. App. 1985).

Appellant argues that the district court erred when it failed to make findings with respect to his ability to pay and respondent's need. A review of the record shows that the district court made findings with respect to appellant's ability to work and both parties' incomes and expenses. From these findings, the district court was able to determine whether the maintenance obligation was fair. The decision by the district court was supported by its findings and is not against logic.

Appellant cannot complain when his own inadequate documentation led to the district court's failure to make more precise findings as to his financial condition. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (this court will not speculate, and appellant cannot complain, if his inadequate documentation, at least in part, leads to trial court's refusal to modify decree). Appellant failed to offer a particularized list of expenses and debts to support his position. The district court, therefore, did not abuse its discretion.


Appellant also argues that it was error to require him (1) to register with a temporary agency, (2) to hire an occupational therapist, and (3) to disclose his non-pension income. Appellant cites no case law or rule to support his argument that the court abused its discretion. We do not assign error without having specific cause to do so. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (assignment of error based on mere assertion and not supported by argument or authorities is waived; it will not be considered on appeal unless prejudicial error is obvious on mere inspection).


Respondent contends the district court's refusal to award her attorney fees was an abuse of discretion. We disagree. The district court's denial of an award of attorney fees will not be disturbed absent a showing of abuse of discretion, and only rarely will a district court's decision regarding attorney fees be overturned on appeal. Rosenberg v. Rosenberg, 379 N.W.2d 580, 587 (Minn. App. 1985), review denied (Minn. Feb. 19, 1986).

There is evidence on the record that respondent has marketable work skills and is employed. Respondent has the economic wherewithal to pay counsel. Therefore, the district court did not abuse its broad discretion in refusing to award attorney fees.


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