This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-98-167

In Re the Marriage of:

Frances Ann Colbenson, petitioner,

Respondent,

vs.

Garry Gene Colbenson,

Appellant.

Filed June 30, 1998

Affirmed

Short, Judge

Anoka County District Court

File No. F1968280

Joseph E. Marvin, Marvin & Erhart, L.L.C., 2150 Third Avenue, Suite 20, Anoka, Minnesota 55303 (for respondent)

Richard J. Schieffer, Johnson & Wood, P.A., 1055 East Wayzata Boulevard, Suite 300, Wayzata, Minnesota 55391 (for appellant)

Considered and decided by Short, Presiding Judge, Willis, Judge, and Forsberg, Judge.*

______________________

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, 10.

U N P U B L I S H E D O P I N I O N

SHORT, Judge

This dispute arises from a 1997 dissolution judgment following a 33-year marriage. On appeal from the trial court's grant of temporary spousal maintenance to his former spouse, Garry Gene Colbenson argues the trial court erred by refusing to treat periodic interest payments from his former spouse's share of a deferred compensation account as income when determining whether she was entitled to spousal maintenance. Colbenson's former spouse argues the trial court abused its discretion in: (1) setting the amount and duration of her spousal maintenance award; (2) failing to require Colbenson to obtain life insurance to secure her spousal maintenance award; (3) divesting itself of jurisdiction over spousal maintenance; and (4) failing to award her attorney fees. We affirm.

D E C I S I O N

Trial courts enjoy broad discretion in deciding whether to award spousal maintenance, and in setting the amount and duration of any award. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982); Zamora v. Zamora, 435 N.W.2d 609, 611 (Minn. App. 1989). A trial court's discretion must be examined in light of the controlling statutory guidelines contained in Minn. Stat. 518.552 (1996). We will not reverse a spousal maintenance order unless it embodies "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

I.

Colbenson argues the trial court erred in determining spousal maintenance because it refused to treat, as income, the periodic interest earned by his former spouse's share of an Individual Retirement Account (IRA). See Minn. Stat. 518.552, subd. 1 (providing court may grant spousal maintenance only if spouse lacks sufficient property, including marital property, to provide for spouse's reasonable needs and spouse unable to provide adequate self-support); see also Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (requiring courts to consider, as income, $46,500 of liquid assets received as part of marital property settlement, when determining spousal maintenance). However, it is undisputed: (1) Colbenson's former spouse is 52 years old, and was awarded a portion of Colbenson's IRA account; (2) the IRA is payable upon retirement, and a pre-59 2 withdrawal will result in a 10 percent penalty unless the payments are annuitized over the recipient's lifetime; and (3) if forced to annuitize the payments, Colbenson's former spouse's retirement funds will remain static. Under these circumstances, the interest earned by Colbenson's former spouse's share of the IRA is not currently generating income for spousal maintenance purposes because it is payable only upon her retirement. See Minn. Stat. 518.54, subd. 6 (1996) (defining income as any form of periodic payment to individual); cf. Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (treating earnings generated by spouse's liquid assets as income when determining spousal maintenance); Schreifels v. Schreifels, 450 N.W.2d 372, 373 (Minn. App. 1990) (treating investment earnings generated from $20,000 cash, received as part of marital property, as income when determining spousal maintenance). Furthermore, an annuitized withdrawal over the former spouse's life expectancy will cause the stagnation of her retirement assets, will prohibit her from guarding against inflation, and could cause her future economic hardship. Cf. Kruschel v. Kruschel, 419 N.W.2d 119, 122-23 (Minn. App. 1988) (declining to consider pension benefits awarded as property as income for maintenance purposes, and permitting modification where husband awarded sole right and interest to pension plan at time of decree, husband voluntarily retired, and absent modification, original maintenance award would deplete husband's original property award).

II.

Colbenson's former spouse argues the trial court abused its discretion in awarding her temporary maintenance in the amount of $500 per month because the facts support an award of permanent maintenance at a higher amount. We disagree. The trial court found: (1) the parties were married for approximately 33 years, 11 of which the former spouse's primary responsibility was raising the parties' three children; (2) the parties enjoyed an "upper middle class" standard of living during their marriage; (3) Colbenson's former spouse was 52 years old, has provided day care since 1974, and has a high school education and on-the-job training as a day-care provider; (4) Colbenson's former spouse has a net monthly income of $1,177.25, with monthly expenses of $1,668.30; (5) Colbenson has a net income of $2,741.58 per month, including overtime, and monthly expenses of $2,099; (6) in the division of marital property, Colbenson's former spouse received the parties' homestead, with equity totaling $65,457.33, and one-half of a deferred compensation account valued at $210,712; and (7) Colbenson could meet his needs and pay his former spouse $500 in maintenance. Based on these findings, the trial court concluded Colbenson's former spouse cannot currently meet her needs; however, once she retires or sells the homestead, she will be able to pay her living expenses. Under these circumstances, we cannot say the trial court abused its discretion in awarding temporary spousal maintenance at $500 per month until Colbenson's former spouse retires or sells the homestead. See Erlandson, 318 N.W.2d at 39-40 (concluding although statute lists several factors, issue is basically financial need of recipient spouse and that spouse's ability to meet those needs, balanced against financial condition of providing spouse); see, e.g., Paul v. Paul, 410 N.W.2d 329, 331-32 (Minn. App. 1987) (concluding trial court did not abuse discretion in awarding temporary maintenance when parties married 21 years, recipient spouse was 42-year-old homemaker who had worked in various jobs, had net monthly income of $500 per month, and received substantial income from marital property division).

III.

Colbenson's former spouse also argues the trial court abused its discretion by failing to order Colbenson to secure the maintenance award with a life insurance policy. However, securing a maintenance award with a life insurance policy is appropriate only in cases where permanent maintenance has been granted. See Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn. 1979) (concluding court allows provisions for life insurance to secure permanent maintenance in exceptional cases where reasons justifying award of permanent maintenance also justify securing that award with life insurance). Therefore, because we conclude the trial court did not abuse its discretion in awarding temporary spousal maintenance, the trial court properly denied Colbenson's former spouse's request that Colbenson be ordered to obtain life insurance to secure her maintenance award.

IV.

Colbenson's former spouse further argues the trial court abused its discretion in divesting itself of jurisdiction in the absence of the parties' consent. See Loo v. Loo, 520 N.W.2d 740, 743 (Minn. 1994) (concluding courts have continuing jurisdiction over dissolution proceeding unless parties create an enforceable waiver of statutory right to seek modification). However, the trial court simply noted it has jurisdiction over Colbenson's temporary spousal maintenance obligation until that obligation expires. See Wibbens v. Wibbens, 379 N.W.2d 225, 226 (Minn. App. 1985) (concluding court may modify an award of maintenance, whether temporary or permanent, before it expires). Thus, neither party has been precluded from seeking modification of the spousal maintenance award while it is in effect. See Minn. Stat. 518.64, subd. 2(a) (Supp. 1997) (permitting courts to modify an original maintenance award upon showing of substantial change in circumstances that renders original order unreasonable and unfair). Under these circumstances, the trial court properly exercised its discretion.

V.

Finally, Colbenson's former spouse argues the trial court abused its discretion in refusing to award her attorney fees. However, the award of attorney fees rests almost entirely in the discretion of the trial court. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977); see Minn. Stat. 518.14, subd. 1 (1996) (providing court may award attorney fees if it determines fees are necessary for good-faith assertion of party's rights and will not needlessly contribute to length and expense of proceeding, party from whom fees are sought has means to pay fees and party seeking fees does not). In declining to award fees, the trial court concluded both parties would have sufficient assets from which to pay their own fees and costs after the division of marital property and award of temporary maintenance. After a careful review of the record, we cannot say the trial court abused its discretion in denying fees to Colbenson's former spouse. See, e.g., Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990) (concluding trial court did not abuse its discretion in denying fees where financial situations of parties were similarly balanced after awards of property and income).

Affirmed.