This opinion will be unpublished and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

C0-97-2159

In Re the Marriage of:

Christine Marie Bridges, petitioner,

Respondent,

vs.

Robert Walker Bridges,

Appellant.

Filed June 30, 1998
Affirmed

Shumaker, Judge

Ramsey County District Court

File No. F095273

Judith L. Oakes, J. Oakes & Associates, Galtier Plaza, Suite 780, 175 East Fifth Street, Box 15, St. Paul, MN 55101 (for appellant)

Kerry L. Scott, Dean S. Grau, 3933 I.D.S. Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]

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

SHUMAKER, Judge

Appellant-husband Robert Bridges claims the district court erred in calculating respondent-wife Christine Bridges's income and expenses and denying his motion to reduce his maintenance obligation. We affirm.

FACTS

The stipulated judgment dissolving the parties' marriage stated wife would receive maintenance of $1,500 per month and that, when wife returned to "regular" employment, maintenance would be reduced to the difference between her monthly income and expenses. In addition, wife would receive half of any bonus received by husband. Each party later acquired a roommate. In 1997, husband moved to terminate or reduce maintenance. The referee refused to address the impact of either party's roommate on the party's income and generally denied husband's motion, but reserved whether to require continued division of husband's bonus income. The referee later issued a "supplemental order" refusing to alter the division of husband's bonuses and, on October 27, 1997, denied husband's motion. The district court adopted the referee's orders.

D E C I S I O N

1. Husband claims the district court erred in finding wife's income and expenses. Maintenance-related findings of fact are not set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989); see Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

Husband challenges the finding of wife's net monthly income, alleging it is not based on wife's 1997 income. See generally, Minn. Stat. 518.552, subd. 2(a) (1996) (stating maintenance obligation should consider maintenance recipient's "ability to meet needs independently"); Carrick v. Carrick, 560 N.W.2d 407, 412 (Minn. App. 1997) (remanding maintenance obligation, stating it should have been based on obligor's current income). We reject husband's calculation of wife's income because it ignores the fact that she works only half-time during the summer and the taxes she pays on her maintenance award. After accounting for these facts, and for wife's raise, any error in the district court's finding of wife's income is de minimis. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error); see also Minn. R. Civ. P. 61 (harmless error to be ignored).

Husband argues the finding of wife's expenses is erroneous because it includes amounts attributable to wife's roommate.[1] The portion of the transcript husband cites to support his argument involves imputing income to a party because the party is cohabiting. Similarly, the October 27 order addresses husband's argument that income should be imputed to wife because of her cohabitation. Husband's challenge to the failure to consider wife's roommate in finding wife's expenses was either not presented to or, if presented, not addressed by the district court. In neither case is the issue properly before us, and we do not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate courts address only issues presented to and decided by district court; party may not raise new theory on appeal); Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (where district court fails to address issue and party who raised it did not seek amended findings, there was nothing for supreme court to review).[2]

2. Whether to modify maintenance is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). The stipulated judgment states that when wife returns to regular employment, maintenance could be reduced to the difference between her net monthly income and her monthly expenses and that modification could occur "without" husband satisfying the statutory modification standard. That the parties stipulated to a non-statutory standard for modifying maintenance does not render the stipulation unenforceable. See Minn. Stat. 518.64, subd. 2 (Supp. 1997) (statutory standard for modifying maintenance requires substantial change in circumstances rendering existing award unreasonable and unfair); Plath v. Plath, 393 N.W.2d 401, 403 (Minn. App. 1986) (parties may stipulate to what court cannot order).

Husband argues the trial court found he had failed to prove that an increase in wife's income had rendered the judgment unfair. Regardless of the accuracy of husband's assertion, under the stipulated judgment, after wife regained regular employment, changed circumstances were not required to set husband's monthly maintenance obligation at the difference between wife's net monthly income and her monthly expenses.[3] Here, based on its findings of wife's income and expenses, the district court found wife's monthly need to be $1,501.13 per month and denied husband's motion to reduce his $1,500 monthly maintenance obligation. Because we affirm the district court's findings of wife's income and we do not address husband's claim regarding wife's expenses, we affirm the denial of husband's motion to reduce his maintenance obligation.

3. In challenging wife's share of his bonuses, husband cites case law indicating that awarding maintenance as a base amount plus a percentage of an obligor's income is disfavored. Here, however, the parties stipulated to wife receiving a share of husband's bonuses in addition to maintenance. Therefore, husband stipulated to an obligation the district court might not have been able to impose. See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) ("maintenance depends on need"). On this record, we affirm the district court's refusal to reapportion husband's bonuses under Plath.

Affirmed.

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

[1] Wife challenges aspects of husband's expenses. Because wife did not file a notice of review on this issue, we do not address her argument. See DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755, 757 n.5 (Minn. 1981) (not addressing issues argued by respondent where notice of review was filed, but untimely).

[2] Were we to address the expense issue, we note the authorities on which husband relies are distinguishable or unpublished or both. See Minn. Stat. 480A.08, subd. 3(c) (1996) ("[u]npublished opinions of the court of appeals are not precedential") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential"), review denied (Minn. Dec. 23, 1996). Further, on this record, it is unclear whether the funds wife receives from her roommate are dependable enough to be considered in a maintenance calculus. Cf. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989) (dependable receipt of funds may be included in calculation of future income). Finally, to the extent husband argues there is no evidence of wife's 1993 tax debt, he is functionally alleging wife's affidavit and interrogatory answers are not credible. Because the district court included the debt in wife's expenses, it credited those assertions by wife, and we defer to that determination. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations).

[3] This fact renders irrelevant husband's claim that the judgment was ambiguous about parties' circumstances when the judgment was entered and whether those circumstances had changed.