This opinion will be unpublished and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

C0-97-2193

In Re the Marriage of:

Rita Catherine Gutenkauf, petitioner,

Respondent,

vs.

Joseph John Gutenkauf,

Appellant.

Filed July 7, 1998

Affirmed and motion denied

Huspeni, Judge

Dakota County District Court

File No. F7929535

William C. Weeding, Fuller & Finney, 7301 Ohms Lane, Suite 325, Edina, MN 55439 (for respondent)

Peter H. Watson, The Crossings, 250 Second Avenue South, Suite 205, Minneapolis, MN 55401 (for appellant)

Considered and decided by Short, Presiding Judge, Huspeni, Judge, and Holtan, 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

HUSPENI, Judge

Appellant challenges the district court's order denying his motion for modification of permanent spousal maintenance. We affirm.

FACTS

In August 1994, after 27 years of marriage, appellant Joseph John Gutenkauf and respondent Rita Catharine Gutenkauf dissolved their marriage. The dissolution decree included the following stipulated provision pertaining to spousal maintenance:

[Appellant] shall pay to [respondent] as and for permanent spousal maintenance the sum of Three Thousand Five Hundred and no/100ths Dollars ($3,500.00) per month on the first (1st) of each month, payable through income wage withholding. Said permanent spousal maintenance shall continue until [respondent's] remarriage or a material change of circumstances which makes the original award unreasonable and unfair and as otherwise provided by law in Minn. Stat. 518.64.

[Respondent] shall continue to make her best efforts to obtain employment during the next thirty-six (36) months and use her reasonable best efforts to generate income through her present employment. In the event [respondent] is not, that will be one of the factors the Court will take into account in determination of spousal maintenance. [Appellant] shall have the right to bring a Motion to modify the spousal maintenance amount in thirty-six (36) months, but must show a change of circumstances from those in existence as of settlement as provided by law to obtain any such modification. In the event [respondent] is unable to earn any additional income at the time [appellant] elects to bring the Motion, the Court shall consider said circumstance in accordance with the then existing law.

The court noted that in 1993 respondent was self-employed as a travel agent and earned approximately $900 for the year, while appellant's gross monthly income from his employment as a physician was approximately $11,413.64.

In May 1997, appellant moved for reduction of spousal maintenance "due to a change in circumstances and [respondent's] unwillingness to comply with the terms of the Decree as they apply to the issue of spousal maintenance."

In an affidavit submitted for the motion hearing, respondent indicated that her total income was approximately $7,100 in 1996, and $4,320.85 through August 1997. Respondent also provided uncontested information that appellant's annual income was approximately $172,000 in 1996 and would be approximately $191,000 in 1997.

The district court, in denying appellant's motion, found that respondent "has complied with the Judgment and Decree by generating income for herself through employment" and concluded that respondent's "current level of income provides no basis for a change in circumstances as contemplated in the Judgment and Decree, * * * [appellant] has not shown a material change of circumstances which justifies a reduction in [appellant's] spousal maintenance obligation, [and] * * * [t]he original award of spousal maintenance is fair and reasonable."

The district court denied respondent's motion for attorney fees, but awarded her a cost-of-living increase. This appeal followed.

D E C I S I O N

1. Modification of Permanent Spousal Maintenance

Generally, the decision to modify a maintenance award is within the discretion of the district court. See Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). "Maintenance awards are not altered on appeal unless the district court abused its wide discretion." Hecker v. Hecker, 543 N.W.2d 678, 680 (Minn. App. 1996), aff'd, 568 N.W.2d 705 (Minn. 1997) (quotation omitted).

"On a motion for modification of maintenance * * *, the court shall apply, in addition to all other relevant factors, the factors for an award of maintenance under section 518.552 that exist at the time of the motion." Minn. Stat. 518.64, subd. 2(b) (1996).

A movant for maintenance modification must not only demonstrate the existence of a substantial change of circumstances, but is also required to show that the change has the effect of rendering the original maintenance award both unreasonable and unfair.

Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997). A maintenance award may be modified only upon clear proof of facts showing a significant change in circumstances. Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980).

Appellant argues that respondent self-limited her income, justifying a modification. He cites to cases discussing self-limitation of income, but none of the cases involve an award of permanent maintenance. See Katter v. Katter, 457 N.W.2d 750, 753 (Minn. App. 1990) (discussing obligee's failure to rehabilitate after award of temporary maintenance); Johnson v. O'Neill, 461 N.W.2d 507, 508 (Minn. App. 1990) (discussing in child support context alleged self-limitation of income by incarcerated obligor).

Respondent -- a permanent maintenance recipient -- is not required to become self-supporting. See Schroeder v. Schroeder, 405 N.W.2d 267, 269 (Minn. App. 1987) (holding that permanent maintenance recipient had no duty to become self-sufficient to relieve obligor of his duty); see also Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985) (providing that permanent maintenance recipient has no "obligation to increase her earning power through occupational retraining"), review denied (Minn. (Minn. Jan. 31, 1986); Borchert v. Borchert, 391 N.W.2d 74, 76 (Minn. App. 1986) (holding that recipient of permanent maintenance should not be penalized for subsequent increase in income); cf. Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (district court may impute income to temporary maintenance recipient who fails to make reasonable effort to become self-supporting).

While the parties' stipulation provides for permanent maintenance, but also contains a provision requiring respondent to employ her best efforts in obtaining employment and generating income, the district court acted well within its discretion in determining that respondent had, in fact, complied with those requirements. Although appellant requests that we remand for more specific findings regarding whether respondent used her "best efforts" to generate income, the court's findings are fully sufficient to enable meaningful review. The record supports the finding that respondent in fact increased her income from the time of the decree, and this finding supports the conclusion that respondent complied with the decree's income-generation provision.

In addition, respondent's generation of income was only one factor the district court was to consider in its analysis of whether there had been a material change in circumstances making the original maintenance award unreasonable and unfair. The district court also concluded that respondent was still in need of maintenance and that appellant had not shown a material change of circumstances justifying a reduction in his maintenance obligation.

The district court did not abuse its discretion in denying appellant's motion for modification of permanent maintenance.

2. Attorney Fees

The decision to award attorney fees in dissolution cases rests almost entirely within the discretion of the district court. Maeder v. Maeder, 480 N.W.2d 677, 680 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). This court will rarely reverse a district court on this issue. Id. An award of attorney fees is proper when a court finds the fees are necessary for the good-faith assertion of a party's rights in the proceeding, the party from whom fees are sought has the means to pay them, and the party to whom fees are awarded does not have the means to pay them. Minn. Stat. 518.14, subd. 1 (1996).

Respondent does not claim that she is financially unable to pay her attorney fees, but contends that the district court abused its discretion in failing to award attorney fees because of the disparity in the financial resources of the parties. See Worden v. Worden, 403 N.W.2d 909, 912 (Minn. App. 1987) (providing that denial of fees may be abuse of discretion if wide disparity in financial resources of parties, but finding no abuse of discretion). Although there is disparity here, we cannot conclude on the record before us that the district court abused its discretion.

Respondent also claims that she was entitled to attorney fees because of appellant's bad faith in bringing the motion. "Fee awards under Minn. Stat. 518.14 may be based on the impact a party's behavior has had on the costs of the litigation regardless of the relative financial resources of the parties." Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991). Again, there was no abuse of discretion. It would be difficult to attribute bad faith to appellant for bringing a motion clearly anticipated by the parties' stipulation.

We similarly decline to award attorney fees on appeal, because we cannot say this appeal is frivolous. Nor is there any indication that respondent cannot afford to pay appellate attorney fees.

Affirmed and motion denied.