This opinion will be unpublished and

may not be cited except as provided by

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




In Re the Marriage of:

Shirley A. Dornseif, n/k/a

Shirley A. Gaboury, petitioner,



Westley E. Dornseif,


Filed June 23, 1998

Affirmed as modified

Harten, Judge

Ramsey County District Court

File No. F2-90-1891

Terry L. Hegna, Attorney at Law, 961 Grand Avenue, St. Paul, MN 55105 (for appellant)

Dawn M. Mondus, Attorney at Law, 4916 Highway 61, White Bear Lake, MN 55110 (for respondent)

Considered and decided by Crippen, 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.


HARTEN, Judge Appellant Westley E. Dornseif challenges an upward modification of spousal maintenance, its retroactivity, and the award of attorney fees. We affirm as modified.


In 1991, appellant and respondent Shirley Gaboury signed a marital termination agreement, dissolving their 30-year marriage. Child support for their one minor child was set at $515 a month.[1] In addition, the marital termination agreement provided for appellant to pay respondent $175 a month in permanent spousal maintenance. In 1996, the maintenance was increased to $185 a month by a cost of living adjustment. In August 1996, respondent brought a motion to increase maintenance. The parties appeared before a district court referee. In March 1997, the referee reserved decision and recommended an evidentiary hearing before the district court. In November 1997, the district court ordered judgment increasing respondent's maintenance to $500 a month retroactive to August 1, 1996, and awarding her $2,000 attorney fees. Appellant challenges the modification, the retroactive imposition of the modification, and the award of attorney fees. Respondent requests an additional award for attorney fees incurred for this appeal.


1. Modification of Maintenance

The district court has broad discretion to set maintenance. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). We will find an abuse of that discretion only if the district court's conclusion is clearly erroneous and against logic and the facts of the case. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). We will affirm if the determination has an acceptable and reasonable basis in fact. Bliss v. Bliss, 493 N.W.2d 583, 586 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

A court may modify a spousal maintenance award if the moving party shows a substantial change in circumstances that has made the original award both unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (1996); Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997). The essential consideration in maintenance is the financial need of the party receiving maintenance and the ability to meet that need balanced against the financial condition of the party providing the maintenance. Maeder, 480 N.W.2d at 679.

Appellant challenges the district court's findings regarding his income, and respondent's income and expenses. The district court found appellant's net monthly income to be $2,479. Appellant argues that the district court erred in computing his income. There is reasonable support in the record for the district court's finding. Appellant predicted at the hearing that he would make $40,000 a year. The district court used that figure to compute appellant's gross monthly income and then subtracted standard deductions. Appellant also has had an additional $645 a month available since the termination of child support in 1996.

The district court found respondent's monthly income to be $1,397.48. The district court calculated respondent's income from her year-to-date pay stub. Appellant argues that money from respondent's adult son who lives with her and property tax refunds should be included in her income. The money from her son is used to pay his expenses, which have not been included in respondent's expenses. Property tax refunds were not included in the income calculation of either party. There is reasonable support in the record for the district court's calculation of respondent's income.

The district court found that respondent's current monthly expenses are $2,589.75. Appellant argues that the expense listed for dental work is unnecessary at this time and that the expenses should not include money spent on a dog or on respondent's adult children. The record shows that the district court considered respondent's expenses, and there is reasonable support for its findings. Expenses for respondent's adult children were not included in the court's finding of her expenses.

The record reveals an adequate basis to modify maintenance. Respondent falls more than $1,000 short of meeting her monthly expenses; since the original maintenance award, her expenses have increased at a greater rate than has her income. While respondent's needs have increased, appellant's ability to pay also has increased, making the original award unreasonable and unfair. The district court's findings are not against logic and the evidence; there is no abuse of discretion.

2. Retroactivity

Appellant argues that the retroactivity of the maintenance award should be reversed, because respondent receives a windfall that places an extreme hardship on him.

A modification of support or maintenance may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party * * *.

Minn. Stat. § 518.64, subd. 2(d) (Supp. 1997). The district court made the modification of maintenance retroactive to August 1, 1996. Appellant was served with the motion papers on August 15, 1996. Therefore, the modification cannot take effect until that date, and we modify the effective date of the award to August 15, 1996.

The district court did not abuse its broad discretion in making the award retroactive.

3. Attorney Fees The district court's award of attorney fees will not be overturned absent an abuse of discretion. Bliss, 493 N.W.2d at 589. The allowance of attorney fees in family law cases is almost entirely within the discretion of the district court, and this court rarely will reverse that decision. Maeder, 480 N.W.2d at 680. To award attorney fees, the court must find:

(1) that the fees are necessary for the good-faith assertion of the party's rights * * *;

(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).

Section 518.14 mandates appropriate findings where the request for attorney fees is need-based. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992). Appellant argues that the award of attorney fees was improper because the district court did not make adequate findings. He argues that the district court failed to make findings of the total fees, whether they were necessary, and whether appellant has the means to pay them. He also argues that he does not have the ability to pay the fee.

The district court found that respondent falls $1,192.27 short of meeting her monthly expenses, $400 of the shortfall being for attorney fees. It found that respondent will still be $700 short of meeting her monthly expenses after the increase in maintenance. The district court also found that appellant has an additional $645 a month from the termination of child support, his income is 44% greater than respondent's, and he has the ability to increase his income. The district court made adequate findings to support an award of attorney fees.

Respondent requests attorney fees incurred in this appeal. Appellate courts may award attorney fees for expenses related to an appeal. Courey v. Courey, 524 N.W.2d 469, 473 (Minn. App. 1994); see Minn. Stat. § 518.14, subd. 1 (1996) (fees "may be awarded at any point in the proceeding"). We award respondent $500 appellate attorney fees.

Affirmed as modified.

[1] In 1995, that amount was increased to $645 a month. Child support terminated in June 1996, when the child became emancipated.