This opinion will be unpublished and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:

Robert S. Jackson,



Marjorie J. Jackson,


Filed May 20, 1997

Affirmed in part, reversed in part, and remanded

Willis, Judge

Hennepin County District Court

File No. DW188656

Michael L. Perlman, Perlman Law Office, P.C., Union Plaza, Suite 325, 333 Washington Avenue North, Minneapolis, MN 55401 (for Appellant)

Lorraine S. Clugg, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435 (for Respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Robert Jackson (husband) appeals from the district court's modification of his $2200 per month maintenance obligation to $1100 per month, arguing that the reduced maintenance is still excessive. In addition, husband contends the district court abused its discretion in ordering him to pay respondent Marjorie Jackson (wife) $6000 in attorney fees. We affirm in part, reverse in part, and remand.


The Jacksons' 44-year marriage was dissolved in October 1993. Pursuant to a stipulation by the parties, husband received all of their shares in husband's business, Visual Motivations, Inc. (VMI). Wife received their home and a $50,000 cash settlement. In addition, husband was obligated to pay wife $2200 per month in spousal maintenance. At that time, husband had a net income of $3762 per month, and wife expected to begin receiving $300 monthly in social security benefits shortly after entry of the judgment.[1]

In February 1995, VMI's sole remaining client announced that it would terminate its contract effective May 31, 1995. Husband filed a pro se motion to modify his maintenance obligation, and the district court suspended husband's maintenance obligation pending a hearing on the matter.

At the time of the hearing, husband had $285,700 in VMI stock and $267,500 in cash or cash equivalents. His net worth after liquidation of his VMI stock was $477,100. Wife had approximately $14,000 in liquid assets and her home. Although they agreed that the market value of the home was $170,000 in 1992, husband's and wife's estimates of the current value of the home were $400,000 and $185,000, respectively. The referee found that husband had reasonable monthly expenses of $2688 and that wife's reasonable monthly expenses were $2650, which would be reduced by at least $400 per month if wife sold the home and rented an apartment.

In an order dated May 24, 1996, the referee found that husband's change in circumstances rendered the $2200 per month maintenance obligation unreasonable and unfair, but concluded that wife continued to need permanent spousal maintenance. The referee ordered husband to pay wife $1100 per month in maintenance and $5000 for her attorney fees, which totalled approximately $8000. Husband sought review of the referee's order pursuant to Minn. R. Gen. Pract. 312.01, and wife sought an additional $1645 in attorney fees. The district court affirmed the referee's determination of husband's obligation and ordered husband to pay wife an additional $1000 for wife's attorney fees related to the review of the referee's order.


1. Maintenance.

Absent clear error "that is against logic and the facts on record," this court will not disturb the district court's broad discretion in determining maintenance. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

To modify a spousal maintenance award, the moving party must show both (1) 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. Hellerstedt v. Hellerstedt, 409 N.W.2d 65, 67 (Minn. App. 1987), review denied (Minn. Sep. 30, 1987); Minn. Stat. § 518.64, subd. 2 (1996). 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 v. Rapacke, 442 N.W.2d 340, 343 (Minn. App. 1989).

A court may grant a spouse maintenance in a proceeding following a marriage dissolution 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.

A maintenance order must be determined in such amounts and duration as the court deems just 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 marital standard of living, (4) the duration of the marriage and a homemaker's absence from employment, (5) the employment opportunities foregone by the spouse seeking maintenance, (6) the age and health of the spouse seeking maintenance, (7) the ability of the spouse from whom maintenance is sought to meet both parties' needs, and (8) the contribution of each party in acquiring the marital property. Id., subd. 2.

Husband claims the evidence does not support the referee's finding that wife has reasonable monthly expenses of $2650. Husband erroneously focuses on wife's 1995 checkbook register, which shows monthly expenditures lower than her stated expenses. Wife testified that her checkbook does not fully reflect her expenses and testified that her monthly living expenses were $2,927.39. The record supports the referee's finding that wife's monthly expenses are $2650.

Husband argues that his income does not support even the reduced maintenance award of $1100 per month. Specifically, husband challenges the referee's computation of his net monthly income to be $2835 per month, based on a 6% return on his liquid assets, rather than the 4% return applied by husband's accountant. Husband provides no support for his claim that he should not be held accountable for the extra income that would be generated by a "more risky" investment rate, particularly in light of the fact that he has approximately $256,000 invested at a 5% rate of return and $1500 invested at a 6% rate of return.

Both parties cite Fink v. Fink, 366 N.W.2d 340 (Minn. App. 1985), for the proposition that the district court erred in requiring them to invade their marital property to meet their expenses. See id. at 342 ("Courts normally do not expect spouses to invade the principal of their investments to satisfy their monthly financial needs."). However, the district court here simply recognized that the parties' aggregate expenses are greater than their aggregate incomes and that they will have to invade their assets if they continue a lifestyle that costs more to maintain than their incomes can support. See Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (holding that district court did not abuse its discretion in ordering husband to pay wife maintenance of $900 per month even though his maintenance obligations and expenses exceed his income).

The referee noted that in the parties' 1993 stipulation they contemplated the depletion of assets to meet their living expenses. The supreme court has stated that

when a stipulation fixing the respective rights and obligations of the parties is central to the award, the [district] court reviewing the original order or decree should view it as an important element because it represents the parties' voluntary acquiescence in an equitable settlement. Although the [district] court is vested with broad discretion to determine the propriety of a modification, we have suggested that [district] courts exercise that discretion carefully and only reluctantly alter the terms of a stipulation governing maintenance.

Clayburgh v. Clayburgh, 312 N.W.2d 447, 449 (Minn. 1981) (citation omitted).

When husband was employed and paying wife $2200 per month for maintenance, he was experiencing a shortfall of $1110 per month ($3762 income - $2200 maintenance - $2672 expenses), and wife was experiencing a shortfall of $126 per month ($300 social security income + $2200 maintenance - $2626 expenses). After the maintenance modification, husband's monthly shortfall is $953 ($2835 income - $1100 maintenance - $2688 expenses), which is less than his shortfall under the October 1993 dissolution decree. Based on the referee's findings, wife's shortfall would be $1125 ($425 social security income + $1100 maintenance - $2650 expenses) if she continues to live in her home or $250 ($900 income + $1100 maintenance - $2250 expenses) if she sells the home and rents an apartment, either of which is a greater shortfall than existed under the October 1993 dissolution decree.

However, husband contends the district court abused its discretion in adopting the referee's calculation of wife's investment income potential if she sells her home. The May 1996 order states that wife's home

would likely sell for about $200,000 net of the cost of minor repairs and real estate commission. If that amount could be invested at a 5% return, [wife] would earn about $5,510 per year in gross income. That would be an additional $459 gross per month.

It is unclear how the referee arrived at the amount of $5510 in annual income from the sale. Husband claims the district court erred because a 5% return[2] on $200,000 is $10,000, which translates to a gross monthly investment income of $833. Based on that calculation, wife would have a monthly surplus of $158 ($1258 income + $1100 maintenance - $2250 expenses) if she sold her home and rented an apartment.

We remand for the district court to (1) determine wife's probable gross proceeds from the sale of her home and calculate wife's income based on that determination and (2) determine whether, in light of that calculation, granting wife $1100 per month in maintenance is appropriate under section 518.552.

2. Attorney Fees.

The district court awarded wife $6000 in attorney fees, noting that husband had a much greater net worth and more liquid assets than wife. The district court is required to award attorney fees if it finds that (1) the fees are necessary for a good faith assertion of the party's rights in the proceeding; (2) the party from whom fees are sought can afford to pay them; and (3) the party seeking the fee award cannot afford to pay them. Minn. Stat. § 518.14, subd. 1 (1996). Absent a clear abuse of discretion, this court will not reverse the district court's decision to award attorney fees pursuant to section 518.14. Korf v. Korf, 553 N.W.2d 706, 711 (Minn. App. 1996).

Husband contends the district court abused its discretion because he does not have the means to pay wife's attorney fees, arguing that the $6000 award represents an impermissible redistribution of the marital property award. However, husband has significant assets with which to pay wife's attorney fees, and this court has awarded attorney fees based on "[t]he [large] disparity in the financial circumstances of the parties." Kroening v. Kroening, 390 N.W.2d 851, 855 (Minn. App. 1986) (awarding wife attorney fees where wife received nonliquid assets in property settlement and had low earning potential and husband received liquid assets and had high earning capacity); see also Kohner v. Kohner, 358 N.W.2d 721, 724 (Minn. App. 1984) (awarding wife attorney fees where husband had significantly greater net worth than wife and wife could not afford to pay both fees and living expenses), review denied (Minn. Feb. 27, 1985). The district court did not abuse its discretion in awarding wife $6000 in attorney fees in light of the great disparity in the parties' liquid assets.

Affirmed in part, reversed in part, and remanded.

[ ]1At the time of the modification hearing, wife was receiving $425 per month in social security payments.

[ ]2The court imputed a 5% return on the proceeds of wife's home and a 6% return on husband's VMI proceeds because wife will have fewer liquid assets and will therefore be less able to put her money in high-return investments.