This opinion will be unpublished and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

C8-96-2027

Karen Marie Thielen, petitoner,

Appellant,

vs.

Theodore Alfred Thielen,

Respondent.

Filed June 3, 1997

Affirmed

Huspeni, Judge

Becker County District Court

File No. F190557

Brian L. Sobol, Elizabeth B. Bowling, Katz & Manka, Ltd., 4150 First Bank Place, 601 Second Ave. S., Minneapolis, MN 55402 (for Appellant)

Kim A. Pennington, Pennington & Lies, P.A., 26 N. Sixth Ave., Suite 300, P. O. Box 1756, St. Cloud, MN 56302 (for Respondent)

Considered and decided by Parker, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.

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

HUSPENI, Judge

The district court denied appellant's postdissolution motions for change of venue, modification of maintenance, and attorney fees. Because we see no abuse of discretion in the denials, we affirm.

FACTS

Appellant Karen Thielen and respondent Theodore Thielen were married in 1973. Of the three children born during the marriage, one is still a minor. Appellant did not work outside the home after the birth of the first child; respondent was self-employed.

Appellant began dissolution proceedings in Becker County in 1990. In 1991 she moved with the children to Dakota County. Shortly before the scheduled trial, the parties stipulated as to all issues. Both parties were represented by counsel and made use of financial experts.

The parties' stipulation provided that appellant would immediately receive property worth about $150,000 and would receive $376,000 in property settlement payments by 1999. The investment of part of this settlement would give appellant income of about $400 monthly; she would also have $94 monthly from a vendor's interest in a contract for deed, child support for the three children, then aged 12, 15, and 17, in the amount of $1,400 per month, and spousal maintenance in the amount of $2,100 per month for 36 months (June 1992 - May 1995), then $1,700 per month for 12 months (June 1995 - May 1996).[1]

The award of spousal maintenance provided that:

During this period, [appellant] is expressly obligated to make a diligent and good-faith effort to obtain any needed retraining and appropriate employment for the purpose of earning income to replace the temporary maintenance award. [Appellant] is also expected to make prudent investment of the property settlement proceeds she will be receiving pursuant to the Judgment and Decree. Jurisdiction on the issue is reserved.

Appellant has liquidated about $200,000 of her property settlement in the years following the dissolution.

Prior to the marriage, appellant obtained a degree from St. Cloud State University; she worked as a special education teacher from 1970 to 1974. Appellant claims that after the dissolution she planned to obtain a certificate to qualify her to educate children with emotional and behavioral disabilities. After moving to Eagan, she attended classes at the University of Minnesota part time and claims that she was forced to work part time to supplement her income (approximately $2,500 monthly, exclusive of child support). There is nothing in the record reflecting either appellant's earnings or her academic activity during the period 1992 to early 1995. In the summer of 1995, she began classes at the University of St. Thomas; her academic performance was apparently unsatisfactory. She has obtained neither training nor employment in any field other than special education.

In April 1995, appellant sought a change of venue to Dakota County for post-dissolution proceedings; this motion was denied, as was her subsequent motion for reconsideration in February 1996. Appellant challenges the denials of those motions and of her motions to modify spousal maintenance, to require respondent to assume all unreimbursed medical expenses of the parties' adult son, and for attorney fees. She also seeks attorney fees on appeal.[2]

D E C I S I O N

1. Venue

"Denial of a motion for a change of venue is reviewed under an abuse of discretion standard." County of Nicollet v. Haakenson, 497 N.W.2d 611, 614 (Minn. App. 1993).

In support of the original change of venue motion, appellant argued that it would be expensive and inconvenient for her witnesses to go to Becker County and for her and her younger son to commute and that her younger son's mental health and drug abuse problems were such that she could not leave him for a day.[3] The district court considered these arguments:

[T]he court suggests that [appellant] could submit affidavits from any of her witnesses who are unable to travel to Becker County for the hearing. Finally, the court is not convinced that it would be seriously detrimental to [appellant's] son to go without her supervision for one day. The [appellant] need not be gone overnight to attend a hearing in Becker County and [could] return to the Twin Cities the same day. Certainly, the [appellant] can arrange for her son to be supervised by a friend or relative for a few hours after school.

While the son's counselor had submitted a letter stating that the "removal" of his mother would magnify the son's depression, the counselor did not address the effect of her absence during the after-school hours of one day.

Appellant moved for reconsideration of her motion to change venue based on the suicide attempt of the parties' older son, then 19 and in college. She submitted letters or statements from three of his care providers, all of whom recommended that appellant stay in the Twin Cities. Their recommendations appear to be based on the assumption that if appellant's postdissolution motions were to be heard in Becker County, she would need to move there or at least be there frequently for extended periods.

The court again considered appellant's arguments and addressed them in its memorandum, noting that "any hearing on the matter will be brief enough to allow [appellant] to travel to Becker County and return to the Twin Cities in the same day." Further, we find it of importance in the change of venue context that, in fact, appellant never sought an evidentiary hearing in connection with her motions. Her concern about inconvenience and expense for witnesses appears at best to be directed toward a hypothetical situation. A motion not involving a request for an evidentiary hearing could be, and would most probably be, decided on affidavits. See Minn. R. Gen. Pract. 303(d) (motions are to be submitted without an evidentiary hearing unless ordered otherwise for good cause shown). We see no abuse of discretion in denying the change of venue.

Appellant also challenges the district court's neutrality in denying her change of venue motions and argues that the denial of a change of venue is itself proof of the court's bias. She cites no authority for the argument that a judge who denies a party's change of venue motion is obviously prejudiced in favor of the opposing party. We find appellant's argument unpersuasive.

2. Spousal Maintenance

"The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). However,

[w]hen a stipulation fixing the respective rights and obligations of the parties is involved, the trial court "should view it as an important element because it represents the parties' voluntary acquiescence in an equitable settlement." Trial courts should only reluctantly alter the terms of a stipulation governing maintenance.

Prange v. Prange, 437 N.W.2d 69, 70 (Minn. App. 1989) (quoting and citing Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981)), review denied (Minn. May 12, 1989). The district court declined to alter the terms of the parties' stipulation by awarding appellant permanent maintenance.[4]

Appellant alleged two substantial changes in circumstances: her own inability to rehabilitate and respondent's increased income. She relies on Katter v. Katter, 457 N.W.2d 750 (Minn. App. 1990), to argue that her failure to rehabilitate is by definition a substantial change in circumstances. While we agree that failure to rehabilitate may, indeed, be considered a change in circumstances when the court is deciding to extend rehabilitative maintenance or converting rehabilitative maintenance into permanent maintenance, in this case we find appellant's reliance on Katter misplaced. First, in Katter the parties had not stipulated as to maintenance; "[d]espite respondent's urging, appellant took no part in the dissolution proceedings." Id. at 751. Secondly, the appellant in Katter had obtained full-time employment appropriate to her age and educational background; she was therefore awarded permanent maintenance because her earnings from that employment were not sufficient to enable her to meet her court-approved living expenses. Id. at 754-55. Katter holds that a failure to rehabilitate can constitute the statutory "substantial change in circumstances," id. at 753, but failure to rehabilitate in Katter meant that although the appellant was working full time at an appropriate job, she was unable to be fully self-supporting. Appellant here has alleged that she cannot work, and indeed there is no evidence of any employment at present. This is in stark contrast to the obligee in Katter.

Except for appellant's own affidavits, the only support for her claimed inability to work is the affidavits and statements of her psychologist, psychiatrist, and a medical doctor who examined her for fibromyalgia, first diagnosed in April 1996. None of them was asked to testify at a hearing. The district court specifically noted that their affidavits did not persuade him "that appellant is not able to pursue avenues of rehabilitation other than teaching" and that, except for an attempt at retraining for a teaching job, appellant had not shown any good faith efforts at rehabilitating. Had the stipulation in this case required appellant to make a good-faith effort to retrain for a teaching job, perhaps we could apply the rationale of Katter to grant appellant some relief. However, the parties' stipulation broadly required that appellant "make a diligent and good-faith effort to obtain any needed retraining and appropriate employment for the purpose of earning income to replace the temporary maintenance award." The court's finding that appellant has not made that effort is not clearly erroneous, and the court's reluctance to alter the terms of the stipulation is not inappropriate.[5]

Nor was there an abuse of discretion in the district court's determination that respondent's increase in income did not constitute a substantial change in circumstances. "[A] demonstration of even a substantial increase would be insufficient, by itself, to justify modification." Id. at 754.

We note also that Karg v. Karg, 418 N.W.2d 198 (Minn. App. 1988), does not assist appellant, although that case did involve modification of temporary maintenance to permanent. First, Karg did not involve a stipulation. Further, the obligee in Karg had been working for two and a half years at the time the modification motion was brought. This court, in affirming the trial court, observed:

Respondent is now 56 years old and has been working as a dishwasher for the last two and a half years. She earns $365.00 per month and receives $200-$300 per month in interest from the certificate of deposit. * * *

Given respondent's age, lack of highly marketable skills, limited financial resources, and inability to become self-sufficient in the last three and a half years, it is unlikely that respondent will ever attain self-sufficiency.

Id. at 202. Karg is distinguishable on its facts. Also, as always, we must recognize the discretion granted to the trial court in these matters. The Karg court found the grant of permanent maintenance to be within the discretion of the trial court; here we are compelled to recognize that same discretion in denial of permanent maintenance.

Although we are not unmindful of appellant's difficulties with her own health and with the parties' sons since the dissolution, and while we may have decided differently had we been the district court, we cannot hold that it was an abuse of discretion for the district court to refuse to alter determinations made in the stipulation voluntarily entered into by both parties.

3. Unreimbursed Health Care Costs of the Parties' Son

The parties stipulated that each would pay half of the children's unreimbursed health care costs. "Trial courts should only reluctantly alter the terms of a stipulation * * *." Prange, 437 N.W.2d at 70. Also, at present there is no evidence of any unreimbursed costs. Appellant argues that respondent should be solely responsible for any health care expenses incurred by the parties' adult son and not reimbursed through insurance or SSI. Appellant offers two bases for placing sole responsibility with respondent: (1) appellant obtained the SSI coverage for their son, and (2) respondent let the son's health care coverage lapse. However, no damages are claimed to have resulted from the lapse. The district court properly refused to alter the terms of the stipulation by requiring respondent to pay all the unreimbursed medical expenses.

5. Attorney Fees

An award of attorney fees under Minn. Stat. § 518.14 rests almost entirely within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). The parties stipulated that they would each pay their own attorney fees. Again, "[t]rial courts should only reluctantly alter the terms of a stipulation * * *." Prange, 437 N.W.2d at 70.

To award attorney fees in a dissolution action, the court must find that the fees are necessary for the good-faith assertion of the party's rights and do not unnecessarily contribute to the length and expense of the proceedings, that the party from whom fees are requested has the means to pay them, and that the party requesting fees does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996). Appellant argues that respondent should pay her attorney fees incurred in bringing her postdissolution motions because his income is greater than hers.

Disparity of income is not, by itself, a basis for awarding attorney fees. Appellant does not argue that she does not have the means to pay her attorney fees. She argues that she cannot pay her fees without liquidating assets, but the statute does not require that only liquid assets be used to pay attorney fees. We see no abuse of discretion in failing to alter the stipulation that the parties would pay their own attorney fees.

Appellant seeks attorney fees on appeal on the same grounds. In light of our decision affirming the district court, her request is denied.

Because courts are obliged to exercise great reluctance in altering terms of a stipulation made by the parties themselves, and because we are not convinced that the district court abused its discretion in refusing to alter any of the terms of the parties' stipulation, we affirm.

Affirmed.

[ ]1The total maintenance award was $96,000.

[ ]2The mandatory settlement discussion report submitted to this court indicates that the parties have settled the child support issue, and therefore we do not address that issue.

[ ]3The child, then 15, had been suspended from school for a day for smoking, had used marijuana and had a "bad trip," and was seeing a counselor for depression.

[ ]4Appellant challenges the district court's failure to make findings on the statutory factors. Although the court related its findings in paragraph form in a memorandum rather than listing and labelling them as findings, see Minn. R. Civ. P. 52.01 (it is sufficient if the district court's findings of fact are in a memorandum accompanying the court's decision), it is clear that the court considered evidence presented by appellant and found it unpersuasive. Moreover, once the court found no substantial change in circumstances had occurred, it was not required to make findings on the statutory factors. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (trial court not required to make further findings on statutory factors where denial of modification of maintenance is based on finding that party seeking modification has failed to show a substantial change in circumstances).

[ ]5The court further explained its reluctance to alter the agreement by noting that appellant had liquidated rather than invested a large part of her property settlement, although pursuant to the stipulation she was "expected to make prudent investment" of the property settlement proceeds.