This opinion will be unpublished and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:

LeRoy Keith Storbeck, petitioner



Denise Christine Storbeck,


Filed September 2, 1997

Parker, Judge

Reversed and remanded.

Stearns County District Court

File No. C5970634

Kim A. Pennington, Pennington & Lies, P.A., 26 North Sixth Avenue, Suite 300, St. Cloud, MN 56302-1756 (for respondent)

Shelly D. Rohr, Richard D. Goff, Law Offices of Richard D. Goff, 900 Capital Centre, 386 North Wabasha, St. Paul, MN 55102-1308 (for appellant)

Considered and decided by Parker, Judge Presiding, Crippen, Judge, and Short, Judge.



Appellant Denise Storbeck challenges a post-appeal district court order denying her motion upon remand for an award of permanent spousal maintenance. She argues that the district court erred in failing to follow this court's directive on remand to make findings and determine "whether in light of the change in LeRoy Storbeck's income and Denise Storbeck's medical condition, the existing maintenance amount and duration is unreasonable and unfair." We reverse and remand.


Whether a district court erred in applying claim or issue preclusion is a mixed question of law and fact subject to de novo review. Parker v. MVBA Harvestore Sys., 491 N.W.2d 904, 906 (Minn. App. 1992). A district court has broad discretion in awarding maintenance, and a reviewing court will find an abuse of discretion upon a clearly erroneous conclusion that is against logic and the facts on the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A district court may modify the terms of a maintenance decree upon a showing of a substantial change of circumstances from those existing at the time of the dissolution or at the time the maintenance award was last modified. Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980).

Ms. Storbeck argues the district court erred in concluding that she is precluded by res judicata from now moving for an award of permanent spousal maintenance. She contends the district court erroneously determined that she should have sought permanent maintenance in 1992, when she moved for COLAs and increased child support. She contends that such a motion would have been premature in 1992 and that nothing in the statute prevents her from now moving for permanent support. Pursuant to the parties' stipulated dissolution agreement, her temporary maintenance continued, regardless of remarriage, until 1995. Ms. Storbeck also argues the district court failed to make appropriate findings, as directed by this court, in regard to her medical condition and Mr. Storbeck's increase in income. She argues that her disease prevents a complete rehabilitation that would allow her to be self-sufficient and support the standard of living she enjoyed while married. At the very least, she contends, the district court should have made findings regarding her current income and living expenses. Therefore, Ms. Storbeck argues that this matter should again be remanded to the district court with a specific directive to make appropriate findings.

"A trial court's duty on remand is to execute the mandate of the remanding court strictly according to its terms." Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (citing Halverson v. Village of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982)). When the trial court is not given specific directions on how to proceed in fulfilling the remand order, the trial court has discretion to proceed in any manner not inconsistent with that order. Id. (citing John Wright & Assoc., Inc. v. City of Red Wing, 256 Minn. 101, 102, 97 N.W.2d 432, 434 (1959)).

A maintenance award is subject to modification at any time during its effectiveness. McClelland v. McClelland, 393 N.W.2d 224, 227 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986); see also Minn. Stat. § 518.64, subd. 1 (1996). In order for the trial court to modify an award of maintenance, the moving party must show "both a substantial change in earnings and unfairness of the existing obligation as a result of the change." Savoren v. Savoren, 386 N.W.2d 288, 291 (Minn. App. 1986); see Minn. Stat. § 518.64, subd 2 (1996) (setting forth factors to be considered in modifying maintenance award).[1] However, a motion for review of a temporary maintenance award may be considered premature if brought before maintenance is due to terminate and a determination of self-sufficiency of the receiving spouse cannot be made at that time. Catania v. Catania, 385 N.W.2d 28, 30 (Minn. App. 1986).

Pursuant to his February 4, 1993, amended judgment and decree, the district court found:

The increase in Petitioner's earnings over the last seven years makes the terms of the original order unreasonable and unfair. This finding is based solely upon the substantial increase in Petitioner's income and not on Respondent's claim of physical disability.

Amended Finding of Fact #24, 2/4/93. The district court then determined that Ms. Storbeck was entitled to COLA increases in child support and maintenance. On appeal, this court said:

But whether or not LeRoy Storbeck's stipulation on his 1985 income was in bad faith, his 1995 income of $105,000 (estimated gross) is substantially more than his 1985 stipulated income of $24,000 (net.).

* * *

Although the district court concluded that (Denise's) medical condition was not a change in circumstances, the court's findings do not adequately explain that conclusion. We remand for the district court to determine whether, in light of the change in LeRoy Storbeck's income and Denise Storbeck's medical condition, the existing maintenance amount and duration is unreasonable and unfair.

Storbeck v. Storbeck, No. C0-96-904 (Minn. App. Nov. 26, 1996) (emphasis added.) On remand, however, the district court limited his consideration to Mr. Storbeck's 1993 and 1995 income:

Respondent had the opportunity to move the court for modification of the initial maintenance award at any time after 1985. She did not do so in 1993, when she moved the court to modify child support based on Petitioner's change in income. Accordingly, the principles of res judicata bar her from now seeking modification of maintenance based on changes in Petitioner's income occurring prior to 1993. * * * In 1993, Petitioner's income was higher than it was in 1995, when this motion was heard. Therefore, since 1993, there has not been a substantial change in Petitioner's income rendering the initial award unreasonable and unfair.

Amended Conclusions of Law #2 & #3, 2/26/97. The district court then found that Mr. Storbeck's misrepresentation of his income in 1985 was not in bad faith. The court also found that the evidence supported a finding that Ms. Storbeck's disease was not debilitating and did not prevent her from working full time. The court concluded that he could not consider Ms. Storbeck's motion for permanent maintenance because res judicata barred consideration of this issue.

Initially, we note that neither claim preclusion nor issue preclusion applies to this case "in a technical sense." Loo v. Loo, 520 N.W.2d 740, 743-44 n.1 (Minn. 1994) (noting claim preclusion and issue preclusion "apply to the preclusive effect of prior lawsuits" and that neither doctrine applied there because "we are reviewing the impact of a previous decision in the same case") (emphasis added).[2]

We conclude that the trial court has not followed the remand instructions. This court observed a great increase in Mr. Storbeck's stipulated income from 1985 to 1995 and directed that the trial court review this ten-year period and then apply the appropriate statutory considerations. The trial court, however, limited his consideration of Mr. Storbeck's income only to 1993 through 1995 and concluded that Ms. Storbeck was not entitled to an award of permanent maintenance. We further note that in 1992 Ms. Storbeck's motion to the trial court sought only COLAs for child support and maintenance. We are directed to no statutory authority to support the proposition that she was required to move the court for permanent spousal maintenance at that time. Indeed, the modification statute assumes that modification may be sought after the moving party learns that modification may be appropriate. See Minn. Stat. § 518.64, subd. 2(c) (1996) (modification is retroactive to the date of the motion and may be retroactive to a date earlier than the parties' motion in certain situations).

In 1992, three years remained on Ms. Storbeck's temporary maintenance award, and she was then married to a Mr. Peterson.[3] It would be arbitrary and inconsistent with the modification statute, which allows for maintenance modification motions any time during the effectiveness of the award, to impose upon Ms. Storbeck the requirement that she move for permanent maintenance at that time. See Minn. Stat. § 518.64, subd. 2; McClelland, 393 N.W.2d at 227. Had Ms. Storbeck sought permanent maintenance three years prior to the expiration of the stipulated award, it may well have been deemed premature, as the trial court might not have been able to make a competent determination of whether she had yet attained economic self-sufficiency. See Catania, 385 N.W.2d at 30. In 1992, Ms. Storbeck was diagnosed with fibromyalgia. Although she had earned both a bachelor's and a master's degree in counseling during and subsequent to the dissolution, she contends that her health problems inhibited her ability to support herself at a standard of living comparable to that which she enjoyed while married to Mr. Storbeck. Furthermore, Ms. Storbeck's intervening remarriage and inability to work outside the home would not have allowed for an accurate determination in 1992 of whether she would be in need of permanent maintenance at or near the expiration of the award three years later.

We conclude that the district court erred in refusing to consider Ms. Storbeck's motion for permanent maintenance and in failing, as directed by this court, to evaluate the disparate disclosures of Mr. Storbeck's income from 1985 to 1995. On remand, we direct the district court to make findings on all relevant factors required by Minn. Stat. § 518.552, subd. 2, to determine whether the current maintenance award is unreasonable and unfair.[4] We further direct that particular attention be given to Mr. Storbeck's income from 1985 to 1995, Ms. Storbeck's income and living expenses at the time of her motion, and the district court's finding of fact #24 from the February 4, 1993, amended judgment and decree.

Reversed and remanded.

[ ]1Party seeking modification must show (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party; (3) receipt of assistance under sections 256.72 to 256.87; or (4) a change in the cost of living for either party, any of which makes the terms unreasonable and unfair.

[ ]2Although not addressed by the parties, because this case involves a district court's ruling (this court ruling on the legal issue that the district court's findings were inadequate to support its original ruling and a remand), we note the district court's failure to follow this court's remand instructions may have violated the doctrine of law of the case. See Loo, 520 N.W.2d at 744 n.1 (law of the case applies where "an appellate court has ruled on a legal issue and has remanded the case to the lower court for further proceedings").

[ ]3Pursuant to the Storbecks' stipulated dissolution decree, Ms. Storbeck was entitled to receive her maintenance payments regardless of remarriage. Her marriage to Mr. Peterson was dissolved in 1994.

[ ]4We note that the 1985 amendment to Minn. Stat. § 518.552 rewrote the section to include Minn. Stat. § 518.552, subd. 3, which provides:

Nothing in this section shall be construed to favor a temporary award of maintenance over a permanent award, where the factors under subdivision 2 justify a permanent award. Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award, leaving its order open for later modification.

1985 Minn. Laws Ch. 222, § 2.