This opinion will be unpublished and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:

John J. Seidl, petitioner,



Barbara J. Seidl,


Filed January 13, 1998

Reversed and remanded

Peterson, Judge

Dakota County District Court

File No. F891400

Harold R. Wingerd, 2300 Firstar Center, 101 East Fifth Street, St. Paul, MN 55101 (for appellant)

Carole M. Megarry, 4150 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55033 (for respondent)

Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Peterson, Judge.



In this appeal from an order modifying a permanent maintenance award, appellant challenges the amount of maintenance awarded. We reverse and remand.


Appellant John J. Seidl and respondent Barbara J. Seidl were married in 1962 and divorced in 1992. At the time of the dissolution, appellant earned $3,060 per month working as a machinist at West Publishing Company, and respondent earned $1,000 per month working as a banquet waitress at the Radisson Hotel. The dissolution decree required appellant to pay respondent $750 per month in permanent spousal maintenance, which has increased to $831 due to cost of living adjustments. The decree also provided:

[Appellant's] interest in the West Publishing Company Employee Pension Plan shall be divided according to a Qualified Domestic Relations Order providing that fifty percent (50%) of the vested portion of [appellant's] accrued benefit as of January 21, 1992, i.e., $1,091.75, less the amount of [appellant's] nonmarital interest in said Plan, as determined by the formula established by West Publishing, Inc., i.e., 1% x $375 x number of months in the plan prior to the parties' marriage, shall be assigned to respondent.

Appellant worked at West Publishing for three years before the marriage, and continued to work there for five years after the dissolution. He retired from West on January 1, 1997. At the time of his retirement, appellant's monthly pension benefit was $1,479. If respondent chose to begin receiving the West Publishing pension benefits awarded to her in the dissolution decree, she would be entitled to receive $207 of appellant's monthly benefit.

The trial court found that appellant receives monthly pension benefits of $1,272.56. The trial court also found that his reasonable monthly living expenses are $1,312, but will decrease by at least $365 (the rental payment for his current residence) because he is moving to his cabin and will no longer have to pay rent. Finally, the trial court also found that appellant "is remarried and his spouse receives modest retirement benefits."

The trial court found that respondent continues to work as a banquet waitress for the Radisson, and her net monthly earnings are $1,310. Respondent also has monthly interest income of $38.50. Respondent's income would total $1,555.50 per month if she began drawing her West Publishing pension benefits ($207 per month). Her reasonable monthly living expenses are $2,078, leaving a shortfall of $522.50.

The trial court concluded that respondent is still in need of permanent maintenance, but appellant has had a substantial decrease in his income, which makes the amount of the original maintenance award unreasonable and unfair. The court reduced the amount of maintenance from $831 to $365 per month, and awarded respondent $750 in attorney fees.


The trial court may modify spousal maintenance if the moving party shows substantially decreased earnings that make the terms of the original decree unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996). The decision to modify a maintenance award is within the wide discretion of the trial court. Kaiser v. Kaiser, 290 Minn. 173, 179, 186 N.W.2d 678, 683 (1971).

I. Pension

Pension benefits awarded as property in a dissolution cannot be included in the income of a party when determining that party's maintenance obligation.

Walker v. Walker, 553 N.W.2d 90, 94 (Minn. App. 1996).

Appellant argues that the trial court erroneously treated his pension benefits as income. He contends that because his pension was distributed as property in the dissolution, treating it as income now effectively deprives him of his property award. We disagree. A portion of appellant's current pension benefit was not distributed as property in the dissolution.

This case is factually similar to Walker, in which the parties stipulated that the maintenance obligor's accrued pension benefit as of a certain date was $31,500 per year, and the dissolution judgment divided this benefit equally between the parties. Id. at 94. The maintenance obligor continued working for the same employer after the dissolution, and when he began receiving retirement benefits several years later, the amount he was eligible to receive was $24,522 per year. Id. In modifying the obligor's maintenance obligation, the district court determined that $15,500, which was approximately one-half of the accrued pension benefit at the time of dissolution, represented the obligor's property interest and the remaining $9,022 of the pension benefit was income. Id. This court concluded that the district court did not abuse its discretion by including the $9,022 in the obligor's income for maintenance purposes. Id.

Similarly, at the time of dissolution, the vested portion of appellant's accrued monthly pension benefit was $1,091.75. This amount was explicitly distributed in the dissolution. Appellant continued working at West after the dissolution, and by the time he retired, his monthly pension benefit was $1,479.72, an increase of $387.97. This increase was not awarded as property in the dissolution and, therefore, may be treated as income when determining appellant's maintenance obligation.

II. Appellant's Remarriage

Appellant argues that the trial court violated Minn. Stat. § 518.64, subd. 2(b)(1) (1996) by improperly considering his current spouse's income when modifying the maintenance award. We disagree. Minn. Stat. § 518.64, subd. 2(b)(1) applies to modifications of child support, not maintenance. There is no comparable statutory prohibition applicable to maintenance modifications. Because spouses generally share household expenses, it is frequently necessary to consider a current spouse's income when determining a maintenance obligor's reasonable expenses. Furthermore, although the trial court stated that appellant's spouse receives modest retirement benefits, there is nothing in the court's order or memorandum that indicates that these benefits affected the amount of maintenance awarded.

III. Amount of Award

A trial court abuses its discretion when it reaches "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Likewise, findings of fact related to maintenance determinations are not set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

Appellant contends that the trial court reached a conclusion that is against the facts on record because the evidence does not support the following finding :

[Appellant] states he will not seek further employment and intends to live at his cabin and spend his time on recreational activities. Such a move will decrease [appellant's] monthly expenses by at least $365.00 (the rental payment for his current residence).

In his affidavit, appellant stated,

I have a lake cabin I want to work on and feel that after all these years I should be able to spend my time as I choose.

This statement does not support the finding that appellant intends to make his lake cabin his only residence, and our review of the record has not revealed other evidence that supports this finding. Because it appears that the trial court set maintenance at $365 per month because that is the amount that appellant would have available if he moved to his cabin, we reverse the maintenance award and remand to permit the trial court to set maintenance without assuming that appellant will move to his cabin. On remand, the trial court may, at its discretion, receive additional evidence regarding appellant's expenses.

Because we are remanding for a maintenance determination, we will address further appellant's argument that there is no factual basis for the amount of maintenance awarded. In making this argument, appellant incorrectly assumes that any maintenance award must be in an amount that he can pay with his current income while still paying all of the other expenses that the trial court found to be reasonable. A maintenance award is not an abuse of the trial court's discretion simply because the obligor lacks sufficient income to pay the award and his reasonable expenses. Cf. Justis v. Justis, 384 N.W.2d 885, 891-92 (Minn. App. 1986) (maintenance award not abuse of trial court's discretion where appellant's income was insufficient to pay child support, maintenance, and appellant's expenses), review denied (Minn. May 29, 1986).

Where, as here, the parties' reasonable expenses exceed their combined incomes, there can be no maintenance determination that will not leave at least one party unable to pay all reasonable expenses with current income. Therefore, on remand the trial court must make findings showing that it balanced the overall circumstances of the parties when making its maintenance determination.

IV. Attorney Fees on Appeal

Respondent requests an award of attorney fees on appeal. Appellant does not challenge the fee award made by the trial court. A court shall award attorney fees at any point in the proceedings if necessary to enable a party to carry on or contest the proceeding, as long as it finds

(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Minn. Stat. § 518.14, subd. 1 (1996).

We decline to award fees because the issues raised on appeal are not frivolous, and based on the evidence before us, we cannot conclude that appellant has the means to pay respondent's fees.

Reversed and remanded.