Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Linda Kaye Donner Sidney, petitioner,
Dexter Joseph Sidney,
File No. F39612182
Patricia A. O'Gorman, Patricia A. O'Gorman, P.A., 8750 90th Street South, #207, Cottage Grove, MN 55016 (for respondent)
Dexter J. Sidney, 508 Woodland Drive, Burnsville, MN 55337 (pro se appellant)
Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Foley, Judge.*
*Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Appellant Dexter Joseph Sidney contends the district court abused its discretion by: (1) awarding permanent maintenance to respondent Linda Kaye Donner Sidney; (2) not suspending maintenance during one of the months that appellant was unemployed; and (3) awarding attorney fees to respondent. Respondent contends the district court abused its discretion in failing to award a share of appellant's future bonuses to respondent. We affirm.
Minn. Stat. § 518.552, subd. 1 (1996), provides that the district court may grant maintenance if it finds that the spouse seeking maintenance:
lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or
is unable to provide adequate self-support * * * through appropriate employment * * * .
The district court must also consider the factors listed in the statute to determine if maintenance is appropriate. Minn. Stat. § 518.552, subd. 2 (1996).
Appellant contends the district court erred in concluding respondent should not be required to invade specific retirement accounts in order to support herself. We disagree. The district court did not abuse its discretion in determining that respondent should not be required to liquidate her IRA-type funds at a substantial penalty while appellant is permitted to allow his to accumulate. See Justis v. Justis, 384 N.W. 2d 885, 892 (Minn. App. 1986) (holding that because wife's award of pension and profit sharing plans and IRA are not liquid assets, she demonstrated need for maintenance), review denied (Minn. May 29, 1986).
Appellant also challenges the district court's finding that permanent maintenance was appropriate because it could not determine respondent's future ability to attain self-sufficiency. Appellant argues that because of respondent's past business success, the district court's finding unfairly minimized her future ability to earn money. We disagree. The district court specifically found that respondent did not make a significant amount of money in her past business endeavors. Because there is evidence to support this finding, we cannot say it was clearly erroneous.
Further, the legislature requires the award of permanent maintenance if there is uncertainty about the spouse's ability to become self supporting:
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.
Minn. Stat. § 518.552, subd. 3 (1996). Here, the district court did not abuse its discretion in finding respondent's income and employment prospects were uncertain, and respondent was entitled to permanent maintenance subject to a motion for modification when respondent completes her education and enters the workforce.
Appellant also claims the district court clearly erred in determining his ability to pay maintenance because in setting appellant's future income at $10,000 per month, the district court ignored the fact that appellant would be unemployed. We disagree. Because the district court based its findings on evidence of appellant's potential earnings in the record, we conclude the court did not abuse its discretion.
At the time the district court considered the reduction in maintenance, appellant had been employed only one month with his new employer. Thus, the district court was unable to determine with any certainty appellant's prospects for incentive payments. If the award of bonuses is uncertain and the amount is not guaranteed, the district court acts within its discretion in not awarding a portion to respondent. See McCulloch v. McCulloch, 435 N.W.2d 564, 566-67 (Minn. App. 1989) (holding district court's determination that wife was precluded from obtaining maintenance where future bonuses were too speculative). We conclude the district court did not abuse its discretion in failing to order appellant to pay respondent a share of future bonuses.