This opinion will be unpublished and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:

Marian W. Wines, petitioner,



Fred J. Wines,


Filed September 2, 1997


Schumacher, Judge

Hennepin County District Court

File No. 67098

Joseph A. Nilan, Jerry D. Perron, Lang, Pauly, Gregerson & Rosow, Ltd., First Bank Place, 1600 IBM Park Building, 650 Third Avenue South, Minneapolis, MN 55402-4337 (for respondent)

Todd R. Haugan, 204 Marquee Place, 641 East Lake Street, Wayzata, MN 55391 (for appellant)

Considered and decided by Norton, Presiding Judge, Schumacher, Judge, and Willis, Judge.



Appellant Fred Wines (husband) challenges the district court's denial of his motion to forgive his maintenance arrears and the granting to respondent Marian Wines' (wife) of a judgment for those arrears. We affirm.


The stipulated July 1980 judgment dissolving the parties' marriage included a provision under which husband agreed to pay wife maintenance for 140 months and obtain life insurance sufficient to discharge his obligation in the event of his death. Husband's maintenance obligation was scheduled to expire in 1992 and he complied with it until September 1987, but failed to make payments thereafter. In September 1987, wife obtained a lien on property in Cass County to secure husband's maintenance obligation. Later, husband transferred the property to a friend for less than fair market value.

In December 1987, husband moved to terminate maintenance, claiming the insolvency of his business rendered him unable to pay maintenance. Husband failed to respond to wife's discovery requests and requested a continuance of his motion, pending resolution of his business' bankruptcy. In July 1988, the district court noted "this court does not grant indefinite continuances" and struck husband's motion "subject to reinstatement upon appropriate request."

Husband filed personal bankruptcy in September 1989 and, among other things, tried to discharge his spousal maintenance obligation. Ten months before resolution of his personal bankruptcy, husband died and his widow was appointed as his personal representative.[1] The bankruptcy court ultimately denied husband's attempt to discharge his maintenance-related obligations.

In December 1995, wife, whose lien on the Cass-County property was still outstanding, moved for a judgment on husband's maintenance arrears. Husband asked that the arrears be forgiven. The district court denied husband's motion and granted wife a judgment. Husband appeals.


1. We will not reverse a district court's ruling on spousal maintenance absent an abuse of the district court's discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). A district court's findings of fact will be affirmed unless clearly erroneous. Minn. R. Civ. P. 52.01.

"Forgiveness of [maintenance] arrearages constitutes a retroactive modification of a maintenance obligation." Christenson v. Christenson, 490 N.W.2d 447, 449 (Minn. App. 1992), review granted (Minn. Jan. 15, 1993), appeal dismissed (Minn. Feb. 16, 1993). Here, the district court denied husband's motion to forgive his arrears ruling that the 1992 expiration of husband's maintenance obligation deprived it of jurisdiction to modify husband's maintenance obligation and that husband's eight years of inactivity on his original motion showed he had abandoned it.

Expiration of a maintenance obligation divests the district court of jurisdiction to modify that obligation. Eckert v. Eckert, 299 Minn. 120, 126-27, 216 N.W.2d 837, 841 (1974). If, however, a motion to modify maintenance is pending when the obligation would otherwise expire, the district court retains jurisdiction to address that motion. Plante v. Plante, 358 N.W.2d 729, 731 (Minn. App. 1984), review denied (Minn. Feb. 27, 1985). Husband argues the district court's striking of his 1987 motion to terminate maintenance, "subject to reinstatement," indefinitely continued that motion and preserved the district court's jurisdiction to hear the motion. We disagree.

The district court's order striking husband's 1987 motion notes the court's inability to grant indefinite continuances and states no intent to reserve jurisdiction. Given the expiration of husband's maintenance obligation in 1992 and the district court's failure to expressly reserve jurisdiction over the issue in 1987, the current district court correctly concluded it lacked jurisdiction to modify husband's maintenance obligation. See Diedrich v. Diedrich, 424 N.W.2d 580, 583 (Minn. App. 1988) (if, under a dissolution judgment, a maintenance obligation terminates and the district court "has not expressly reserved jurisdiction," the court loses jurisdiction to modify the award) (emphasis added). Similarly, the district court's inference that husband's failure to make a timely request to reinstate his 1987 motion showed that he abandoned that motion is consistent with case law. See Hicks v. Hicks, 533 N.W.2d 885, 887 (Minn. App. 1995) (abandonment of motion to modify child support inferred after two years of inaction). The district court properly denied husband's motion to forgive his maintenance arrears.

2. Husband argues the district court erred in granting wife a judgment on the maintenance arrears because the claim was time-barred by Minnesota probate law.[2]

Claims against a decedent's estate which are not presented within four months of publication of notice or within one month of the service of notice are barred. Minn. Stat. § 524.3-803(a)(2) (1996). Here, wife sought a judgment on arrears which had accrued before husband's death, which she sought to collect before husband died, and for which she obtained a pre-judgment lien on property which (because of its transfer) was not part of husband's probate estate. Further, wife's lien was outstanding when husband died. A plaintiff has "an absolute right to continue her pending action after the death of defendant therein." Milner v. First Nat'l Bank of Minneapolis, 228 Minn. 324, 327, 37 N.W.2d 450, 451 (1949). On these facts, we conclude wife's request for judgment is not a "claim" as defined in the probate code. See Minn. Stat. § 524.1-201(6) (1996) (defining "claim" for probate purposes).

Husband argues his estate is prejudiced by the timing of wife's motion because she filed the motion three years after he died. Husband, however, was not only aware of his arrears before he died, but he tried to discharge his maintenance obligation in his personal bankruptcy. Also, wife filed her motion for arrears within the statutory period.


[ ]1 For purposes of this appeal, we refer to the parties to the original dissolution; husband and wife.

[ ]2 Husband's estate was probated in Texas, his residence at the time of his death, but the dissolution decree was entered in Minnesota. On appeal, the parties agree that Minnesota probate law applies here. For purposes of this appeal only, we accept the parties' assumption that Minnesota probate law applies.