This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Avron S. Rosenberg, petitioner,



Geraldine E. Rosenberg,


Filed November 25, 1997

Affirmed in part, reversed in part, and remanded

Schumacher, Judge

Hennepin County District Court

File No. DC97639

Peter H. Watson, Peter H. Watson & Associates, P.A., 1960 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Geraldine E. Rosenberg, 6825 Harold Avenue, Golden Valley, MN 55427 (respondent pro se)

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



Both appellant and respondent challenge the district court's award of permanent spousal maintenance. We affirm in part, reverse in part, and remand for findings on the record.


The 21-year marriage of appellant Avron Rosenberg and respondent Geraldine Rosenberg was dissolved on November 26, 1984. The court found that due to the length of the parties' marriage, respondent's contributions as a wife, mother and homemaker, respondent's permanently diminished earning capacity, and respondent's poor health, she lacked sufficient means to provide for her reasonable needs. The court also found that appellant had the ability to meet his own needs and awarded respondent permanent spousal maintenance in the amount of $700 per month.

On January 16, 1997, respondent moved to have her maintenance increased and to award any adjusted maintenance amounts retroactively to December 15, 1984. Respondent also asserted that appellant committed fraud on the court and moved to vacate the original property award. The district court found that there has been a substantial change in circumstances since entry of judgment that made the spousal maintenance award unreasonable and unfair. The court then awarded respondent increased maintenance of $1,500 per month and denied all other motions, including both of the parties' request for attorney fees.


1. Maintenance Modification

Spousal maintenance determinations are a matter within the district court's discretion and will not be disturbed on appeal absent an abuse of discretion. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992) (citing Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982)). A party seeking to modify a maintenance award must show both a substantial change in circumstances and that the changed circumstances render the existing maintenance award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996); Hecker v. Hecker, 568 N.W.2d 705, 709, 1997 WL 561480, at *4 (Minn. Sept. 11, 1997). Once a court finds that modification is appropriate, it must determine a suitable amount and duration of the award by applying all relevant factors, including those listed in Minn. Stat. § 518.552, subd. 2 (1996). Dobrin v. Dobrin, __ N.W.2d __, __, 1997 WL 589456, at *3 (Minn. Sept. 25, 1997). No single factor is dispositive. Erlandson, 318 N.W.2d at 39 (Minn. 1982). The critical issue is respondent's needs and her ability to meet those needs balanced against appellant's financial condition. Id. at 39-40.

The district court found that respondent's "total income," including maintenance, has ranged from $22,000 to $32,000. But the court did not make a finding as to the amount of respondent's monthly expenses and how much of her monthly income is available to meet her reasonable monthly expenses. Similarly, the district court found appellant's 1995 gross income to be $93,000, but did not make a finding on his reasonable monthly expenses or how much of his gross income is available to pay maintenance. We are unable to review the critical issue in determining a maintenance award, respondent's ability to meet her needs balanced against appellant's financial condition, and therefore must reverse and remand for further findings.

Respondent argues that the district court erred because it did not retroactively apply the modified maintenance award to December 15, 1984. The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). A modification of support or maintenance may be applied to an earlier period if

the court makes express findings that the party seeking modification was precluded from serving a motion by reason of a significant physical or mental disability, * * * and that the party seeking modification, when no longer precluded, promptly served a motion.

Minn. Stat. § 518.64, subd. 2(c) (1996). The court did not make any findings and no evidence exists in the record to support respondent's claim that she could not make her motion for modification earlier because of a significant physical disability. Respondent points out that she has suffered poor health since the dissolution. The record does not show that she was afflicted with a significant physical disability, which would have prevented her from making her modification motion earlier.

2. Fraud on the Court

This court will not disturb a district court's decision declining to reopen a judgment and decree absent an abuse of discretion. Maranda v. Maranda, 449 N.W.2d 158, 164 (Minn. 1989). A district court may set aside a judgment and decree and order a new trial or grant other relief if a party can show fraud on the court. Minn. Stat. § 518.145, subd. 2 (1996). Fraud on the court is

[A]n intentional course of material misrepresentation or non-disclosure, having the result of misleading the court and opposing counsel and making the property settlement grossly unfair.

Maranda, 449 N.W.2d at 165. This court will uphold a district court's findings concerning fraud allegations unless they are clearly erroneous. Sanborn v. Sanborn, 503 N.W.2d 499, 502 (Minn. App. 1993), review denied (Minn. Sept. 21, 1993). Minnesota legislation does not set a specific time period within which a party must move to reopen a judgment and decree for fraud on the court. See Minn. Stat. § 518.145, subd. 2. But the Minnesota Supreme Court has stated that six years "reaches to the outer limits of reasonableness[.]" Maranda, 449 N.W.2d at 166.

Respondent brought her motion to reopen the judgment and decree 13 years after its entry. This time period far exceeds the limits set in Maranda. Because respondent's motion was not timely, the district court did not abuse its discretion in failing to reopen the judgment and decree for fraud on the court.

But we note that even if respondent had brought a timely motion, she failed to establish fraud on the court. Respondent argues that because appellant claimed he was unemployed at the time of the judgment and decree when he was an officer of another corporation, he committed fraud on the court. The record supports the court's finding that respondent failed to establish fraud on the court. Appellant was not receiving any income from the corporation and, in fact, qualified for unemployment compensation. The evidence supports the court's logical conclusion that appellant did not commit fraud on the court.

3. Attorney Fees

The decision to award attorney fees in dissolution cases rests almost entirely within the discretion of the district court. Maeder, 480 N.W.2d at 680. This court will rarely reverse a district court on this issue. Id. An award of attorney fees is proper when a court finds that a party unreasonably contributed to the length or expense of the proceeding, the party from whom fees are sought has the means to pay them, and the party to whom fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996).

Appellant argues that he is entitled to attorney fees because the district court dismissed respondent's fraud allegations, her discovery requests were "voluminous" and her "numerous lengthy affidavits * * * contained numerous paranoid accusations on fraud allegations." The record does not show that respondent engaged in unreasonable conduct. In fact, appellant's conduct during discovery was the primary reason for its length and appellant's resulting attorney fees. Given the financial position of both parties, the disparity of incomes between appellant and respondent, and respondent's obvious inability to pay appellant's fees, the district court did not abuse its discretion by denying appellant's request for attorney fees.

Affirmed in part, reversed in part, and remanded.