This opinion will be unpublished and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

C1-97-2297

In Re the Marriage of:

Deborah Kay Landa, petitioner,

Appellant,

vs.

Roger Wayne Landa,

Respondent.

Filed June 23, 1998

Affirmed in part, reversed in part, and remanded

Schultz, Judge*

Hennepin County District Court

File No. 195796

Linda P. Aaker, University Student Legal Service, 160 West Bank Skyway, University of Minnesota, 219 19th Avenue South, Minneapolis, MN 55455 (for appellant)

Roger Wayne Landa, 3753 St. Regis Drive, White Bear Lake, MN 55110 (pro se respondent)

Considered and decided by Lansing, Presiding Judge, Klaphake, 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.

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

SCHULTZ, Judge

Appellant challenges the trial court's order dated November 7, 1997, which she alleges (1) failed to assess respondent's income accurately because it allowed respondent deductions for (a) his self-paid vacation fund and (b) non-union dues, and (2) wrongfully denied her maintenance while she is reeducating herself. Because we find that the district court abused its discretion by deducting respondent's vacation fund from his income, we reverse and remand on that issue. Regarding the district court's deduction of respondent's dues paid to the umbrella union organization, we do not find that it amounts to reversible error on these facts. Because it is foreseeable that respondent's child support obligation and thus his available income will change in the future, we hold that the district court erred by failing to reserve maintenance and we also reverse on that basis.

FACTS

The parties were married from March 23, 1973, until their dissolution on January 24, 1995. Four of their seven children were minors at the time of the dissolution. On September 9, 1997, appellant brought a pro se motion for an increase in child support and an award of spousal maintenance in Hennepin County District Court. Before the issuance of the district court's November 7, 1997 order, appellant retained counsel and submitted a supplemental affidavit on September 26, 1997. Respondent was represented at the hearing. During their marriage, appellant was a homemaker and she also worked outside of the home as a part-time house cleaner. Appellant continues to work as a house cleaner and she estimates that her gross income is $400 a month. Appellant is also pursuing a pre-nursing program at the University of Minnesota.

Since December 1996, respondent has been employed as a painter. In March 1997, respondent took a job with R.A. Campion Decorating Co. and became a member of the Brotherhood of Painters and Allied Trades Local Union No. 38. Respondent pays dues to his local union and additionally, through his employer, pays $.20 per hour worked to the Minnesota Conference of Painters and Allied Trades (MCPAT), the state association of all of the local painters unions. Throughout the year, $1 per hour worked is set aside in a vacation fund that is returned to respondent on December 1 of each year.

At the time of the modification hearing, appellant asked for a modification for the support of three of the parties' children that were living with her. B.L., born January 27, 1979, 18 years old; B.L., born December 4, 1980, 16 years old; and M.L., born October 4, 1982, who was 15 years old at the time of the hearing.

In its November 7, 1997, order, the district court increased respondent's child support obligation to $697. However, respondent's former obligation to pay $50 per month for the minor children's medical support was terminated as of November 15, 1997. By the same order, the district court denied appellant's spousal maintenance.

D E C I S I O N

1. Calculation of Income

Modification of child support is within the district court's discretion and will not be reversed absent an abuse of discretion. Hennessy v. Stelton, 302 Minn. 550, 551, 224 N.W.2d 926, 927 (1974).

Appellant challenges the district court's deduction of respondent's vacation fund and MCPAT dues before calculating respondent's income.

An appellate court will not reverse a district court's determination of net income used to calculate child support if it has a reasonable basis in fact. Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987).

Minn. Stat. § 518.54, subd. 6 (1996), provides:

"Income" means any form of periodic payment to an individual including, but not limited to, wages, salaries, payments to an independent contractor, workers' compensation, reemployment insurance, annuity, military and naval retirement, pension and disability payments. Benefits received under sections 256.72 and 256.87 and chapter 256D are not income under this section.

Minn. Stat. § 518.551, subd. 5(b), gives the guidelines for support for an obligor and defines, in relevant part, "net income" as:

Total monthly *(i) Federal Income Tax

income less *(ii) State Income Tax

(iii) Social Security Deductions

(iv) Reasonable Pension

Deductions

(v) Union Dues

(vi) Cost of Dependent Health

Insurance Coverage

(vii) Cost of Individual or Group

Health/Hospitalization

Coverage or an Amount for

* Standard Actual Medical Expenses

Deductions apply-- (viii) A Child Support or

use of tax tables Maintenance order that is

recommended Currently Being Paid

(a) Vacation Fund

The district court deducted respondent's self-paid vacation fund before calculating his income because the court found that "If said sum were not deducted, respondent would have to be deemed as working 52 weeks per year, which would be unfair." An additional reason the district court allowed this deduction was because respondent's work as a painter was likely to decline in the cold weather months. The district court found that "respondent will likely average less than 35 hours per week of work."

We hold that the district court's deduction for the vacation fund is outside the statute and has no precedent in Minnesota case law. Respondent receives the entire fund on December 1 of each year, thus it is income to respondent. The district court's order did not discuss the best interests of the parties' children but apparently the court focused its efforts toward being fair to respondent. If respondent's income did decline in the cold weather months, respondent could ask for a modification. The vacation fund deduction was an abuse of discretion that led to an incorrect calculation of respondent's income. Therefore, we must reverse the district court as to this issue.

(b) MCPAT Dues

The district court excluded respondent's mandatory dues to the MCPAT, finding it to be "in effect another form of union dues." The MCPAT "is the umbrella organization for all of the local painters unions in the State of Minnesota." The district court found that "[i]n essence, respondent pays two forms of union dues, one directly to his local painters union, and one which is deducted from his paycheck and paid to the Minnesota State Conference of Painters."

The dues paid to the MCPAT are a form of union dues. The dues are mandatory and are paid to the union's "parent organization." Additionally, the dues ($.20 for every hour worked) amount to a de minimis amount under Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985.)[1] We conclude, therefore, that on these particular facts, the district court's deduction of respondent's MCPAT dues does not amount to reversible error.

2. Spousal Maintenance

Appellant argues that the district court abused its discretion in denying her maintenance and asks this court to award her maintenance or reserve the issue.

"The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). "There must be a clearly erroneous conclusion that is against logic and the facts on record before this court will find that the trial court abused its discretion." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

Minn. Stat. § 518.552, subd. 1 (1996), provides in part:

[T]he court may grant a maintenance order for either spouse if it finds that the spouse seeking maintenance:

(a) lacks sufficient property, including martial 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

(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

"Unless an award of spousal maintenance is specifically reserved in the dissolution decree, spousal maintenance is forever waived." Mulroy v. Mulroy, 354 N.W.2d 66, 69 (Minn. App. 1984) (quoting Berger v. Berger, 308 Minn. 426, 242 N.W.2d 836 (1976)).

The district court found that although appellant "arguably is in need of spousal maintenance, she provided wholly insufficient evidence needed to establish such a claim." The district court also found that appellant failed to demonstrate that respondent had the ability to pay her any spousal maintenance. Although appellant provided documentation by way of FinPlan calculations, the district court could not consider it because no information was provided regarding the underlying data used for the calculations and because it found that appellant "may have included expenses attributable to adult children living with her in making her claim" for monthly living expenses.

The record reveals that appellant, who makes approximately $400 per month cleaning houses while she attends the University of Minnesota in a pre-nursing program, would be entitled to at least the continued reservation of maintenance. Appellant is not expected to graduate from her pre-nursing program until June 2000. Upon graduation, appellant will be nearly 50 years old when she reenters the workforce. In the interim, respondent's child support obligation will be significantly reduced, allowing him to pay some maintenance to appellant until the completion of her pre-nursing program.[2] We conclude, on these particular facts, that reservation of maintenance is the most equitable solution and reverse the district court and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

[1] The district court found that respondent works an average of 35 hours per week. 35(hours/week) *4.3 (weeks/month) *$.20 (dues/hour) = $30.10 increase in respondent's monthly income *35% (guideline support obligation) = $10.54/month (increase in child support obligation.) Because the calculation of the monthly increase in respondent's income does not include deductions for FICA, taxes and insurance, etc., it overstates the actual increase in income. Therefore, $10.54 overstates the monthly increase in the support obligation.

In Wibbens, a $120 underpayment of support over a nine or ten month period (a monthly underpayment of between $12 and $13.33) was de minimis and was not corrected on appeal. The monthly amount at issue here is less than the amount found to be de minimis in Wibbens, 379 N.W.2d at 227.

[2] B.L. turned 19 years old in January 1998, and his brother B.L. will be 18 years old in December of 1998.