Minn. Stat. sec. 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
In Re the Marriage of:
Diane Kathleen Bogdanov, petitioner,
Vassil Dimon Bogdanov,
Filed January 27, 1998
File No. F796483
John T. Lund, Schmit & Lund, 11 North Seventh Ave., St. Cloud, MN 56303 (for respondent)
Margaret R. Manderfeld, Neils, Franz & Chirhart, 1011 North Second St., P.O. Box 307, St. Cloud, MN 55302 (for appellant).
Considered and decided by Crippen, Presiding Judge, Toussaint, Chief Judge, and Klaphake, Judge.
In these divorce proceedings, appellant Vassil Bogdanov made no appearance for pretrial or trial proceedings and subsequently elected against a motion to vacate the resulting default judgment. Now, on the limited record developed in a default proceeding, he seeks appellate relief to correct the trial court's determination that respondent Diane Bogdanov is entitled to $1,500 per month permanent maintenance. We affirm.
The parties separated and respondent commenced this divorce action in January 1996. At about this time, appellant closed his businesses, claiming that he had lost his clients and was deeply in debt as a consequence of changes in management of health care services. In a temporary relief order, the trial court awarded respondent $1,500 per month maintenance, but the court later reduced the temporary award to $550 per month based on appellant's income from his new employment as a therapist with a rehabilitation center.
On January 16, 1997, appellant's counsel filed a notice of withdrawal, indicating that appellant had moved to New Mexico. Appellant failed to appear at the January 24, 1997, pretrial conference. By order on February 11, 1997, the trial court directed appellant to notify respondent of his present address and provide a verified statement regarding his present income and expenses within ten days. Appellant did not comply with this order, and respondent moved for judgment by default. Appellant failed to appear at the February 26, 1997, default hearing.
1. Spousal Maintenance.
The trial court has broad discretion in deciding whether to award maintenance and in determining the duration and amount of maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Before this court will find that the trial court abused its discretion, there must be a clearly erroneous conclusion that is against logic and the facts in the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).
The trial court's spousal maintenance decision was premised on findings that the parties had only been married since 1990, but that (a) respondent is 48 years of age; (b) due to her health, respondent's vocation is limited to a job that furnishes housing and an annual salary of $12,800, without other benefits; (c) respondent has monthly expenses of $2,153, plus $420 needed for debt repayment and the risk of needing $700 for housing if her current annual employment contract is not renewed; (d) due to appellant's promise to care for her needs, respondent abandoned prior jobs and stopped pursuing a more profitable vocation; (e) due to her fibromyalgia, respondent is at times incapacitated and physically unable to work; (f) in these circumstances, respondent is now unable to meet her needs through employment; (g) respondent's only hope for better employment lies in an educational program that will cost $500 per month; (h) appellant is $4,239.75 in arrears on a temporary spousal maintenance award; (i) the parties enjoyed "an upper middle class existence during their marriage including a home, luxury automobiles, private school educations for [respondent's] child and frequent travel to Europe and elsewhere"; (j) immediately before the initiation of divorce proceedings, appellant operated corporations that generated an average income of $195,591 for the years 1990-1994; and (k) appellant closed down his businesses at about the time the divorce proceedings began, a process that included sale of a business contract that he could have continued to perform and that generated a minimum of $5,500 per month for three hours work per day.
Appellant disputes only the finding that respondent's physical health represents a permanent concern, noting her comment in an affidavit that the condition "can be manageable" without abnormal stress. We cannot disturb the trial court's findings of fact unless they are clearly erroneous, Minn. R. Civ. P. 52, and there is ample evidence to sustain the trial court's findings on respondent's health.
Appellant contends that the maintenance award was unjustified in light of his ability to pay. Two considerations are argued:
a. Appellant contends that the trial court erred in making no finding that appellant's good income experience was ongoing or that it had been lost in bad faith. But appellant has acknowledged being gainfully employed in the same profession as in the past, and in those circumstances the court could rightfully rely on appellant's earning experience to assess his ability to pay maintenance. Cf. Nazar v. Nazar, 505 N.W.2d 628, 634-35 (Minn. App. 1993) (demanding finding of bad faith to justify use of earning ability to assess income of unemployed person), review denied (Minn. Oct. 28, 1993). Because of appellant's default, there is no evidence in the record to rebut the evidence suggesting his continued expectation of significant business income.
b. Appellant also contends that the court erred in failing to address his ongoing child support obligation established in other proceedings. Due to appellant's default, the trial court was compelled to act without specific evidence as the appellant's current financial needs. Under these circumstances, absent the vacation or modification of the judgment, there is no occasion to open the record for more evidence. On the existing record, the court could rightfully conclude that appellant has an earning experience permitting him to maintain the standard of living considered in determining respondent's expenses.
Appellant next contends that the maintenance award was unjustified because the parties had a brief and troubled marriage. See Gales v. Gales, 553 N.W.2d 2d 416, 419 (Minn. 1996) (recognizing that a "long-term traditional marriage" is an element of the exceptional case that justifies a permanent maintenance award). The Minnesota Supreme Court has reiterated for the bench and bar of Minnesota that "each marital dissolution proceeding is unique and centers upon the individualized facts and circumstances of the parties." Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997). We must also weigh the trial court's decision with respect for the legislative decree that "[w]here 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 modifications." Minn. Stat. § 518.552, subd. 3 (1996). In this case, determined on a limited record because of appellant's default, the trial court did not abuse its broad discretion in making its spousal maintenance award. The determination is adequately supported in light of respondent's age and health, her resulting earning disabilities, the material harm brought about by the marital decision to terminate her previous vocational plans, the high standard of living the couple enjoyed during the marriage, and the fact that this standard of living was maintained by appellant's employment in the same profession in which he continues to work.
Finally, appellant contends that the trial court erroneously failed to assess the number of years of training respondent would need to get better employment. We find no abuse of discretion in the court's assessment of respondent's limited earning potential.
In reviewing the trial court's spousal maintenance award, we are cognizant of the peril of inaccuracy that is inevitably assumed when the court must act while one party chooses to abandon participating in a proceeding. Appellant has not sought to vacate the judgment, and it is not in error on its face. See Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 493 (Minn. App. 1995) (stating limited scope of review on direct appeal from default judgment). Thus, if a different award is justified by current or future circumstances, appellant is left with the burden to show cause for modification of the judgment. Should modification proceedings occur, the current findings make evident the critical, current circumstances that justify the present award, namely, (a) respondent's current monthly expenses of $2,573, (b) her inability to earn more than $12,800 annually to meet those needs, and (c) appellant's financial ability to provide $1,500 per month maintenance and to otherwise provide for his necessary and reasonable current expenses.
2. Denial of Continuance.
The granting of a continuance lies within the trial court's discretion and will not be reversed on appeal unless a trial court clearly abused its discretion. Southwest Fidelity State Bank of Edina v. Apollo Corporate Travel, Inc., 360 N.W.2d 668, 670 (Minn. App. 1985). Appellant argues the trial court abused its discretion in refusing to continue the default hearing based on appellant's daughter's request. The trial court indicated on the record at the default hearing that appellant's daughter had been advised that if appellant needed a continuance, appellant would have to contact the court, but that appellant had not done so. Because appellant failed to request a continuance, the trial court properly proceeded with the default hearing.
3. Attorney Fees on Appeal.
Attorney fees in a divorce proceeding may be awarded on financial need or against a party who unreasonably contributes to the length or expenses of the proceeding. Minn. Stat. § 518.14, subd. 1 (1996). In light of respondent's income from employment and the permanent maintenance award, an award of fees is not warranted based on need, nor do we find that the appeal was brought in bad faith. Therefore, we decline to award attorney fees.
Affirmed; motion for attorney fees denied.
 Related to this contention, appellant adds arguments that (a) evidence in temporary relief proceedings showed that appellant's income at that time was much less than he earned in previous years; (b) the record shows that the previously high standard of living of the parties was crumbling by the end of the marriage; and (c) because the court observed in temporary relief proceedings that a permanent spousal maintenance award was not likely, the ultimate decision reflects the will of the court to punish appellant for his failure to attend trial proceedings.