This opinion will be unpublished and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:

Ewing E. Stephenson, petitioner,



Mary F. Stephenson,


Filed June 10, 1997

Affirmed as modified

Norton, Judge

Dakota County District Court

File No. FX-92-120087

Jordan S. Kushner, 636 Sexton Building, 529 South 7th Street, Minneapolis, MN 55415 (for Respondent)

Mark A. Olson, 2605 East Cliff Road, Burnsville, MN 55337 (for Appellant)

Considered and decided by Davies, Presiding Judge, Norton, Judge, and Kalitowski, Judge.



Appellant contends the trial court abused its discretion in denying her motion for permanent maintenance, awarding her temporary rehabilitative maintenance, denying her motion for attorney fees, and failing to order an evidentiary hearing on the maintenance issue. The trial court properly awarded maintenance, but abused its discretion when it divested itself of jurisdiction at the end of 18 months. We affirm as modified to allow the court continuing jurisdiction to hear future motions on the maintenance issue.


When appellant Mary Stephenson and respondent Ewing Stephenson negotiated the terms of their marital dissolution, respondent agreed to pay appellant temporary spousal maintenance of $500 per month for 33 months and up to $2,000 per year for a period of two years "as and for rehabilitative maintenance" to reimburse appellant for any student loans she would incur to further her education. The spousal maintenance provision in the dissolution judgment states, "The rehabilitative maintenance is intended by the parties to allow the Wife to become self-supporting and the parties anticipate that she will be able to accomplish same within that period of time." In addition to spousal maintenance, respondent was obligated to pay $800 in monthly child support for the parties' two children, who were in appellant's physical custody.

At the time of the dissolution, appellant was 43 years old, was employed by Subway Sandwich Shop, and had a net monthly income of $850 and monthly expenses of $2,000; respondent was 46 years old and worked as a pipefitter with a net monthly income of $2,567 and monthly expenses of $1,900.

Since dissolution, appellant went to work for Rainbow Food Store. Unable to cope with the stress of training to become a head cashier, she failed the course. Appellant periodically went to a counselor, but only addressed her issues of fear and anxiety in two of thirteen sessions before terminating counseling.

One month before temporary maintenance was to expire, appellant moved for modification of the dissolution judgment to provide her with $700 in monthly permanent spousal maintenance and an award of attorney fees for bringing the motion. Respondent filed a responsive motion in which he sought a reduction in child support upon the emancipation of their oldest child and termination of the temporary maintenance at the time allotted in the original dissolution decree.

The trial court denied appellant permanent maintenance, but awarded her $500 in monthly temporary rehabilitative maintenance for 18 months because she had "failed to become self sufficient" and lacked sufficient property to provide for her reasonable needs. Respondent does not contest the order. The court noted further that at the end of 18 months, the court would divest itself of jurisdiction over the maintenance issue and the matter would be final. Appellant moved for reconsideration, amended findings or, in the alternative, an evidentiary hearing on the maintenance issue. The court denied the motion.


1. Permanent maintenance.

Appellant contends the trial court abused its discretion when it denied her motion to modify the dissolution judgment to provide for permanent maintenance. Minn. Stat. § 518.64 (1996) governs when a party seeks to modify temporary maintenance to permanent maintenance due to the party's inability to become fully rehabilitated under the temporary order. Katter v. Katter, 457 N.W.2d 750, 753 (Minn. App. 1990). A party's failure to rehabilitate may constitute a substantial change in circumstances that warrants modification. Id.; see also Minn. Stat. § 518.64, subd. 2(a) (authorizing court to modify maintenance if party seeking modification shows substantial increase or decrease in party's earnings or substantial increase or decrease in party's need that makes original decree unreasonable and unfair).

When a party moves to modify maintenance and extend the duration of the award, the court must consider all relevant factors, including the factors for an initial award of maintenance that exist at the time of the motion. Minn. Stat. § 518.64, subd. 2(b) (referring to factors under Minn. Stat. § 518.552). The decision to modify maintenance rests within the district court's discretion. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). The appellate court will not alter maintenance awards unless the district court abused its "wide discretion." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

The trial court found that appellant needed 18 additional months of temporary rehabilitative maintenance to enable her to obtain the skills necessary for gainful employment. The court did not order permanent maintenance because it found that appellant had not yet "failed" to rehabilitate. The court found that appellant had not "made a genuine effort towards rehabilitation" and had shown "an unwillingness to seek full time employment."

The record supports those findings. Appellant failed to pursue an education despite the fact that respondent agreed to reimburse her for $2,000 of educational expenses for two years. Appellant reduced the number of hours she worked. Furthermore, appellant has not addressed the fear and anxiety that she claims is holding her back from progress and independence. Cf. Gessner v. Gessner, 487 N.W.2d 921, 922 (Minn. App. 1992) (affirming modification of maintenance to permanent award where woman had pursued coursework, worked numerous jobs, but still failed to earn substantial income). Finally, the record does not show that appellant suffers any mental or psychological incapacity preventing her rehabilitation. Cf. Maeder v. Maeder, 480 N.W.2d 677, 678-79 (Minn. App. 1992) (affirming modification to permanent maintenance for 54-year-old woman with various psychological, emotional, and medical problems, no vocational skills, and ex-husband who earned over $200,000, while she earned $3,000 annually), review denied (Minn. Mar. 19, 1992).

Appellant argues, however, that the trial court failed to consider the essential factor when setting maintenance: appellant's financial needs and her ability to meet those needs balanced against respondent's financial status. See Dahlberg v. Dahlberg, 358 N.W.2d 76, 81-82 (Minn. App. 1984) (describing this basic balancing issue for the court to determine when setting maintenance). Appellant focuses on respondent's financial status and on her financial need, but she disregards the third element of the balancing equation: her own ability to meet her financial needs. Appellant has no disability, suffers from no illness, and has not proven she is unable to support herself financially.

By ordering temporary maintenance in the original dissolution decree, the trial court sought to "motivate" appellant to "become educated or skilled and find adequate employment." This court has affirmed that one party's failure to rehabilitate "should not become [the other party's] responsibility." Crampton v. Crampton, 356 N.W.2d 768, 770 (Minn. App. 1984). Therefore, the trial court did not abuse its discretion when it denied appellant's motion to modify its original award of temporary maintenance to a permanent award.

The trial court did abuse its discretion, however, when it divested itself of jurisdiction after 18 months. Minn. Stat. § 518.55, subd. 1 (1996), allows the court to reserve jurisdiction over maintenance in order to respond to changed circumstances at a later date. See Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) (requiring trial court to amend decree to include reservation of jurisdiction on maintenance issue where spouse's cancer could recur and make maintenance necessary). The court must maintain jurisdiction over the maintenance issue, for protection of both parties, in the event of changed circumstances. See Wopata v. Wopata, 498 N.W.2d 478, 485 (Minn. App. 1993) (holding reservation of jurisdiction appropriate where health and welfare of one party was uncertain).

We affirm the current maintenance award and modify the court's order to maintain trial court jurisdiction over the issue.

2. Evidentiary hearing.

Appellant contends the trial court abused its discretion in denying her request for an evidentiary hearing on the spousal maintenance issue. We disagree. "The court need not hold an evidentiary hearing on a motion for modification of maintenance or support." Minn. Stat. § 518.64, subd. 2(e) (1996); see also Minn. R. Gen. Pract. 303(d) (parties shall submit motions to court on basis of affidavits, exhibits, memoranda, and arguments of counsel, without hearing "unless otherwise ordered by the court for good cause shown"). A decision to restrict presentation of evidence to nonoral testimony rests within the trial court's discretion. Sieber v. Sieber, 258 N.W.2d 754, 756 (Minn. 1977).

The parties submitted affidavits on the maintenance issue. The affidavits and supporting documents addressed the parties' income and expenses. Appellant and respondent presented payroll evidence to establish their own income as well as the income of the opposing party. Appellant presented an affidavit explaining her life situation and why she had failed to rehabilitate herself in the three years since the dissolution. In light of this thorough and straightforward nonoral evidence, the trial court did not abuse its discretion in denying an evidentiary hearing. See Christenson v. Christenson, 490 N.W.2d 447, 451 (Minn. App. 1992) (evidentiary hearing on modification of maintenance is not necessary when facts are "relatively uncomplicated" and evidence can be presented fairly and efficiently by affidavit and documentary evidence), review granted (Minn. Jan. 15, 1993), review dismissed (Minn. Feb. 16, 1993). The court was able to make a fair determination based on the nonoral, documentary evidence presented.

3. Attorney fees in trial court.

Appellant alleges the trial court abused its discretion by denying her request for an award of $1,000 representing her trial court attorney fees. We disagree. The award of attorney fees generally rests in the discretion of the trial court and will not be disturbed absent an abuse of that discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). Attorney fee awards are warranted when necessary to allow a party to assert rights in good faith, when the party requesting fees cannot afford to pay them, and when the party ordered to pay fees has the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996).

The record supports the denial of fees because respondent's supporting affidavits show that his budget does not contain excess discretionary income to contribute toward appellant's legal fees. He pays appellant $500 in monthly maintenance and nearly $700 in monthly child support. Those obligations, combined with his monthly expenses of $2,117.15, produce total monthly expenditures for respondent of $3,315.48, yet his monthly net salary, absent occasional overtime, is $2,793.33. Appellant receives $1,198.33 in maintenance and child support, which together with her monthly income of $812, gives her $2,010.33 to meet her $2,059.52 monthly expenses. Given the financial data in the record, we cannot say that the trial court abused its discretion in denying the request for attorney fees.

4. Attorney fees on appeal.

Appellant requests an award of attorney fees and costs for her appeal. This court may award reasonable appellate attorney fees in dissolution cases. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989). We deny the request for two reasons.

First, appellant bases her financial need on erroneous calculations. The language of the amended dissolution judgment maintains respondent's child support obligation until the youngest child, now age 17, reaches the age of majority, although it allowed him to reduce his child support obligation after the elder child attained the age of 18, or 20 if still in school. See Minn. Stat. § 518.64, subd. 4a (providing that child support terminates automatically upon emancipation of child); Beltz v. Beltz, 466 N.W.2d 765, 768 (Minn. App. 1991) (holding child support automatically decreases upon child's emancipation unless parties agreed otherwise in decree), review denied (Minn. Apr. 29 and May 23, 1991). Even though respondent's child support obligation has ceased for the 20-year-old, he has a continuing obligation to pay $698.33 per month to support the 17-year-old child. Appellant misread the judgment to terminate all child support as of June 1996.

Second, as we have already discussed, respondent does not have excess funds to pay appellant's attorney fees. Although appellant's expenses slightly exceed her income, she is limiting her income by working parttime. Earning more income is within appellant's power. Cf. Hecker v. Hecker, 543 N.W.2d 678, 680 (Minn. App. 1996) (court may impute income to party who has willfully failed to rehabilitate self), review granted (Minn. Apr. 16, 1996). An award of attorney fees is not warranted here.

Affirmed as modified.