This opinion will be unpublished and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:

Kathleen A. Smith, petitioner,



John E. Smith,


Filed July 21, 1998


Lansing, Judge

Dakota County District Court

File No. F39614658

Marilyn J. Michales, Honsa & Michales, P.A., 5500 Wayzata Boulevard, Suite 520, Minneapolis, MN 55416 (for respondent)

Patricia A. O'Gorman, Patricia A. O'Gorman, P.A., 8750 90th Street South, #207, Cottage Grove, MN 55016 (for appellant)

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

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



In an appeal from an amended judgment in a marital dissolution action, John Smith challenges the permanency of spousal maintenance and the amount of maintenance and attorneys' fees. By notice of review Kathleen Smith challenges the amount of maintenance and fees. The district court's income calculations are reasonably supported by the record and its provision for maintenance and attorneys' fees is within its discretion, and we affirm.


Kathleen and John Smith dissolved their 23-year marriage in September 1997. During the marriage John Smith, a mechanical engineer, worked first in full-time military service and then in private industry. He is currently employed with Xerxes Corporation, with a net monthly income of $2,682.25. He also receives monthly disability income from the military of $94. His total net monthly income is $2,776.25.

Kathleen Smith is an elementary school teacher. During the early years of the marriage, she was primarily a homemaker and caregiver to the couple's two children, who have now reached majority. She was not employed outside the home from 1975 to 1983. In 1983 she began teaching kindergarten part-time. From 1984 to 1987 she taught full time, and, after three years of substitute and part-time teaching, she resumed full-time teaching in 1991. She receives net monthly income of $1,804.21.

The district court determined John Smith's net monthly income to be $2,682.25, Kathleen Smith's net monthly income to be $1,804.21, each party's submitted expenses to be $2,300 a month, and ordered John Smith to pay permanent spousal maintenance of $475 a month. The court further ordered that John Smith pay $7,500 toward Kathleen Smith's attorneys' fees. The marital property division ordered by the court is undisputed on appeal.

John Smith moved for amended findings or a new trial on spousal maintenance and attorneys' fees. He appeals the denial of the motion, and Kathleen Smith, by notice of review, asserts that the amount of maintenance and fees is inadequate.


A district court has broad discretion in determining spousal maintenance and allowing attorneys' fees, and we will uphold the district court's decisions absent an abuse of that discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982) (spousal maintenance); Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (attorneys' fees). The exercise of discretion must be viewed in light of the statutory criteria contained in Minn. Stat. § 518.552 (1996) (spousal maintenance) and Minn. Stat. § 518.14, subd. 1 (1996) (attorneys' fees). Erlandson, 318 N.W.2d at 38-39. Before this court may determine there has been an abuse of discretion, it must find that there was a clearly erroneous conclusion against logic and the facts on the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984).


Permanent maintenance may be awarded if the district court finds that the spouse seeking maintenance has insufficient property or resources to provide adequate self-support. Minn. Stat. § 518.552, subd. 1(a)(b) (1996). "Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification." Minn. Stat. § 518.552, subd. 3 (1996).

John Smith contends that the district court`s finding on permanent maintenance is an abuse of discretion because the court did not take into account Kathleen Smith's full earning capacity when it incorrectly characterized her summer school teaching as "overtime" and disregarded her tenured teaching position, which provides for guaranteed increases.

The district court found that Kathleen Smith had earned $1,120 gross income from summer work. The court further found that she was not required to work during the summer and was not guaranteed that the employment would be available. We conclude that the court did not abuse its discretion in not adding the minimal summer school income into Kathleen Smith's income for purposes of determining the duration of spousal maintenance. The evidence indicated that she had worked only two summers, grossing only $500 one summer, and that the summer employment was not assured.

We reject John Smith's argument that the district court tax-effected Kathleen Smith's income but not his. Finding IX specifically tax-effects both parties' incomes in the same manner. Finding XV takes into consideration the tax consequences of the maintenance payments on both John and Kathleen Smith.

Similarly, we find no abuse of discretion in the district court's not taking into account possible future increases in salary. The 11 percent increase Kathleen Smith previously received resulted from a "lane change" that required 15 additional college credits. Neither the ability to obtain additional credits nor a raise based on additional credits has been demonstrated. If Kathleen Smith is able to increase her income, John Smith may petition for a modification. Permanent and temporary maintenance are both specifically subject to later modification. See Minn. Stat. § 518.64, subd. 1(1996). At her current income level, after applying her entire monthly salary to her expenses, she has a monthly deficit of about $500. John Smith's net income, minus expenses, leaves a surplus of $382. Under these circumstances, permanent maintenance is not an abuse of discretion.


John Smith's challenge to the amount of spousal maintenance centers on the district court's treatment of his transportation and clothing expenses and restates his objection to disallowing Kathleen Smith's summer income. Kathleen Smith challenges the $475 monthly maintenance award as too low and asserts that based on the statutory factors and comparative income, the amount should be $796. A finding of net income will not be set aside unless it is clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous); Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996) (same); see also Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987) (finding of net income for child support purposes will be affirmed if it has a reasonable basis in fact).

John Smith alleges the district court abused its discretion when it reduced his clothing budget from $400 to $200 and his automobile expenses from $400 to $200. John Smith claimed expenses of $2,940 per month and Kathleen Smith claimed expenses of $2,612. The district court noted that the claimed expenses exceeded the parties' income by $1,300 per month and reduced each party's expenses to $2,300 per month. The district court would have been within its discretion to recognize that John Smith's height and weight require a monthly clothing amount of more than $120 or that he required a transportation budget of more than $200 a month. We may not have made the same reductions. But it is not error in light of the parties' limited resources to reduce each party's expenses and, on these facts, set each party's expenses at $2,300 a month. Rutten, 347 N.W.2d at 50 (the district court's findings of fact are not reversed on appeal unless they are clearly erroneous).

The Smiths had a 23-year marriage. During the first 14 years, Kathleen Smith was unable to pursue her teaching career because of her responsibilities to the family. John Smith has one-third more financial resources available to him than Kathleen Smith, and in light of the comparative income, the spousal maintenance amount of $475 is not an abuse of discretion. Although Kathleen Smith's requested maintenance of $796 is not unreasonable from her point of view, it is not available from John Smith's income. See Erlandson, 318 N.W.2d at 39-40 (financial needs of spouse seeking maintenance must be balanced against ability of other spouse to pay).


Attorneys' fees may be awarded when the district court finds that the party from whom fees are sought has the means to pay them and that the party to whom fees are awarded does not have the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996). Additionally, the court may award attorneys' fees when a party unreasonably contributes to the length or expense of the proceeding. Id. On review, the district court's award of attorneys' fees will not be reversed absent an abuse of discretion. Beck v. Kaplan, 566 N.W.2d 723, 727 (Minn. 1997).

The district court found that Kathleen Smith's reasonable attorneys' fees were $15,000, that she did not have sufficient funds to pay the fees, and that there was a disparity in the parties' financial resources. The court also found that John Smith unnecessarily increased the expenses of litigation by disputing disposition of the marital property, failing to assist in the sale of the homestead, and failing to timely disclose the purchase of his new homestead. These findings have support in the record and justify the court's ordering John Smith to pay one-half of Kathleen Smith's $15,000 attorneys' fees.