This opinion will be unpublished and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:

Douglas E. Johnson, petitioner,



Beverly J. Johnson,


Filed June 9, 1998


Schultz, Judge*

Dakota County District Court

File No. F79313658

Vicki Miller Luoma, 303 Concorde Place, Burnsville, MN 55337 (for appellant)

John H. Daniels, Jr., Willeke & Daniels, 201 Ridgewood Avenue, Minneapolis, MN 55403-3508 (for respondent)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Schultz, Judge.

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



Appellant Douglas E. Johnson (husband) challenges the district court's order denying his motion to terminate spousal maintenance and increasing his maintenance obligation to respondent Beverly J. Johnson (wife). Husband asserts the district court's findings were clearly erroneous and that it erred by failing to order wife to undergo vocational training in order to become employable, by ordering him to provide health insurance coverage to wife, and by awarding attorney fees to her. Because the district court's factfinding was well supported and it did not err as a matter of law, we affirm.


The parties were divorced in 1994 after a property settlement stipulation and a trial on the issue of maintenance. Under the final dissolution decree as amended, wife was awarded permanent spousal maintenance of $1,150 per month. At the time of the dissolution order, husband was employed as a pipefitter earning $3,046 per month after statutory deductions used to calculate maintenance. Half of husband's monthly pension benefits (vested, but not being paid at the time of the dissolution) were awarded to wife as part of the property settlement.

In February 1996, husband retired early from his job as a pipefitter and has since begun taking classes at a technical college to qualify him for employment as a "facility systems technician," a position utilizing skills he learned in his former job. His resulting monthly pension benefits were $657.56, substantially less than his earnings as a pipefitter. Husband's pension benefits were less than the trial court had anticipated because he retired early as defined by the terms of his pension plan, thus his monthly pension benefit was reduced. Due to his early retirement and resulting reduced income, husband moved for a termination of maintenance on the basis of changed circumstances. Husband claimed that the couple had long anticipated his early retirement, which wife disputed. Wife cross-moved for an increase in maintenance due to, inter alia, her newly diagnosed diabetes, which had not existed at the time of the dissolution and which she asserted prevented her from obtaining employment.

Husband's motion to terminate maintenance was denied and wife's motion to increase maintenance was granted by the district court. Husband then moved for amended findings. The parties agreed to have the motion for amended findings heard by another judge when the district court judge who had issued the order increasing maintenance was unavailable. The second judge vacated the first judge's order. This court then reversed the second judge, holding that the motion for amended findings should have been heard by the first judge. Johnson v. Johnson, 563 N.W.2d 77, 79 (Minn. App. 1997) review denied (Minn. June 30, 1997).

Upon remand, the first district judge refused to amend her findings and reaffirmed her previous order increasing husband's maintenance obligation. Although the denial of a motion for amended findings is not separately appealable, husband's timely appeal in effect operates as an appeal of the district court's order increasing his maintenance obligation to his former wife. See Minn. R. Civ. App. P. 104.04; Bougie v. Bougie, 494 N.W.2d 485, 487 (Minn. App. 1993).



Husband alleges numerous errors in the district court's findings. A district court's factfinding in determining matters of spousal maintenance will not be reversed on appeal unless clearly erroneous. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

To obtain a modification of maintenance, a party must show a substantial change in circumstances rendering the existing maintenance award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (1996 & Supp. 1997). Further, if maintenance is to be modified, the district court must consider the same several factors used to determine maintenance initially. Minn. Stat. § 518.552, subd. 2 (1996). The essence of the factors, however, is a balancing of the obligee's needs and her ability to meet them against the obligor's ability to pay. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).

Pension benefits may be considered property and may be divided in a property settlement or when awarding maintenance. Kruschel v. Kruschel, 419 N.W.2d 119, 121 (Minn. App. 1988). Here, husband's pension was treated as property in the dissolution order. Maintenance, by definition, is to be paid from the obligor's "income" or "earnings," not his property. Minn. Stat. § 518.54, subd. 3 (1996) (defining maintenance). Thus, ordinarily the pension, once treated as property, as here, could not serve as the basis for a finding that husband's income is sufficient to enable him to pay an increased maintenance obligation. Id. at 122. But a pension may be invaded as a source of maintenance where the obligor voluntarily reduces his income through bad faith early retirement. Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977); In Re Richards, 472 N.W.2d 162, 165 (Minn. App. 1991). A modification of maintenance will not be reversed absent an abuse of discretion. Rutten, 347 N.W.2d at 50.

A. Early Retirement

Husband asserts that he did not retire "early" because many other pipefitters retire at or before age 59 and he and his wife agreed that he would retire at such an age. The district court's findings demonstrate that it implicitly rejected husband's claims about the expectations of the parties regarding his retirement age and credited wife's denial that the couple had any agreement about the matter. Credibility determinations are the role of the factfinder. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). The district court implicitly found that husband had failed to prove the existence of any agreement between the parties regarding the age at which he would retire. On the record before us, we cannot conclude that the district court's finding in this matter were clearly erroneous.

B. Husband's Earning Capacity

Husband asserts the district court erred by determining that he does not have decreased earning capacity, notwithstanding his voluntary retirement from his longstanding pipefitting job. Husband earned $3,046 per month during his last full year as a pipefitter. The district court found that although he collected only $657.56 per month from his pension upon retiring, husband could have continued to earn the same amount as a pipefitter, albeit with some pain and discomfort. His retirement was voluntary, as he admitted in his deposition. Further, evidence was presented by wife to show that he was employable as an estimator or supervisor, or in other positions that would incorporate his pipefitting skills without requiring him to face the harsh elements and physical labor which purportedly prompted his early retirement. Husband disputed his qualifications for alternative employment in the pipefitting field at a salary similar to his former earnings. Credibility determinations and the weight given evidence are within the province of the factfinder. Id.

An affidavit stating that no jobs were currently available to husband at his former place of employment does not rebut the district court's determination that he had not suffered a decrease in earning capacity or potential. The district court properly exercised its role of making credibility determinations. It implicitly found wife's evidence on this issue more credible than husband's when it determined that husband's earning capacity was undiminished. The district court's findings in regard to husband's earning capacity were well supported and not clearly erroneous.

It is undisputed that, at the time of the district court's order denying his motion for amended findings, husband's earnings (excluding pension income) had decreased to zero. But where a maintenance obligor experiences a decrease in earnings due to voluntary early retirement, an obligee is entitled to raise the issue of the obligor's subjective intentions in reducing his income. When an obligee, as wife here, makes a colorable claim of bad faith retirement by an obligor in an effort to avoid paying maintenance, an obligor has the burden to show by a preponderance of the evidence that his early retirement decision was not "primarily influenced by a specific intent to decrease or terminate maintenance." Richards, 472 N.W.2d at 165. The district court then must determine whether the obligor retired in bad faith, considering his health and employment history, the availability and expectations regarding early retirement when the dissolution was granted, and managerial policies and economic conditions at the time of the obligor's retirement. Id.

In granting wife increased maintenance, the district court did not explicitly find that husband had "retired in bad faith," but made several specific findings bearing on the question. The district court found that: (1) husband was physically capable of "continued employment in the same or similar position" to that which he held before retiring early; (2) husband had failed to submit any expert evidence stating he "should retire early" or that his medical condition "warrants early retirement;" (3) part of husband's evidence was an uncertified physician's affidavit stating that husband "cannot be disqualified from work at this time"; and (4) husband was "voluntarily choosing to retire and is otherwise fully capable of earning income consistent with the Court's Findings in its Judgment and Decree."

Because the district court substantially addressed the Richards factors, however, its findings were sufficient and it did not abuse its discretion in increasing husband's maintenance obligation to wife by $200 per month. See Warwick v. Warwick, 438 N.W.2d 673, 678 (Minn. App. 1989) (finding that obligor unjustifiably limited his income was effectively a finding of bad faith retirement; district court properly considered husband's earning capacity rather than actual income in determining maintenance).

C. Wife's Medical Condition

Husband contends that the district court erred by finding that wife's diabetic condition renders her unable to find permanent employment that would enable her to become self sufficient. It is undisputed that wife now suffers from diabetes, which did not exist when the district court determined the amount and duration of maintenance due her in the original dissolution order.

Wife submitted expert evidence in the form of two affidavits, one from a physician and one from a psychologist and certified vocational rehabilitation counselor, with her motion for increased maintenance. The unrebutted physician's affidavit states that wife suffers from a numbness of her fingers that causes fine motor movements, such as handling papers, to be difficult. In addition, the affidavit stated that "employment which require[s] prolonged periods of sitting will be a problem to Ms. Johnson." The rehabilitation counselor's affidavit was quoted by the district court in its findings, including his determination that "it is unlikely Ms. Johnson will be able to find an employer who would be willing to hire her to engage in sustained occupational activity."

The district court noted the rehabilitation counselor's unrebutted affidavit and found that wife was not capable of finding long-term, permanent employment that would provide her with benefits, such as medical insurance, required to pay for treatment of her diabetes. The district court's findings that wife is unable to find permanent employment as a result of diabetes were well supported and not clearly erroneous.


Husband contends that the district court erred by not adding the amount of his pension collected by wife each month under the terms of their property settlement to her income when determining wife's request for increased maintenance. The division of husband's pension was clearly made as part of the property settlement in the original dissolution order. See Minn. Stat. § 518.54, subd. 5 (1996) (vested pension benefits included in definition of marital property). Therefore, wife's share of the pension should not be considered as income to her when determining a motion for increased maintenance. See Minn. Stat. §§ 518.64, 518.552 (pension awarded as part of property settlement not among factors to be used in weighing modification of maintenance).

Thus, the district court properly excluded the principal of wife's share of husband's pension in calculating her income and needs and increasing his spousal maintenance obligation.


Husband contends that the district court erred by not ordering wife to seek vocational rehabilitation or training in compliance with its original dissolution order. The district court clearly found that circumstances had changed since the dissolution order due to wife's worsening medical condition. It found that she could no longer reasonably be expected to find full-time, permanent employment due to her diabetes. The district court's findings were based on an unrebutted expert affidavit and were not clearly erroneous. It did not err in refusing to order wife to obtain vocational retraining as mandated in the original dissolution judgment and decree.


Husband contends the district court erred by ordering him to supply health insurance coverage for wife beyond the 18-month period mandated in the court's dissolution order. This alleged error is a challenge to the district court's equitable powers, rather than its factfinding. Because the court's mandate that husband provide health insurance for wife is not an order to make a direct payment to her, it is not clear that it fits under the category of maintenance. See Minn. Stat. § 518.54, subd. 3 (maintenance defined as a "payment" from one spouse to the other). Nevertheless, the district court has broad equitable powers in dissolution actions. DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 757-58 (Minn. 1981).

The district court found wife is suffering from diabetes which renders her likely incapable of finding full-time, permanent employment that would offer medical insurance as an employee benefit. The court also found husband has an earning capacity in excess of his needs and may have access to medical insurance through his union. Thus, the district court was well within its equitable discretion in ordering husband to provide his wife with medical insurance.


Husband contends the district court erred by awarding $3,500 to wife as attorney fees. An award of attorney fees in a dissolution will not be reversed absent an abuse of discretion. Solon v. Solon, 255 N.W.2d 395, 397 ( Minn. 1977).

The district court found that wife was not capable of paying her attorney fees and that husband was implicitly capable of paying her fees because his earning capacity was equal to his pre-retirement income and exceeded his needs. The district court did not abuse its discretion by awarding attorney fees to wife.