This opinion will be unpublished and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:

LeRoy Keith Storbeck, petitioner,



Denise Christina Storbeck,


Filed July 14, 1998

Remanded; motion for attorney fees remanded

Holtan, Judge*

Stearns County District Court

File No. F8911140

Richard D. Goff, Shelly D. Rohr, Richard D. Goff & Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)

Kim A. Pennington, JoAnn D. Winkels, Pennington & Lies, P.A., 1111 North First Street, P.O. Box 1756, St. Could, MN 56302-1756 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Willis, Judge, and Holtan, Judge.



On appeal after a second remand, appellant-wife Denise Storbeck again argues the district court should have granted her motion to modify maintenance. We must, regrettably, remand a third time.


The stipulated 1985 judgment dissolving the parties' marriage awarded wife maintenance based on what respondent-husband LeRoy Storbeck said was his $2,000 net monthly income. A 1993 order addressing child support noted husband's actual 1985 income exceeded $2,000 and rendered the original order unreasonable and unfair. The 1993 child support order explicitly refused to base a finding of unreasonableness and unfairness on wife's claimed medical disability.

In 1995, wife moved to modify maintenance based on her medical condition and husband's alleged fraudulent misrepresentation of his income in the stipulation. The district court denied the motion, noting wife's doctor stated wife's medical condition was not generally considered a disabling condition, that wife offered no proof husband's representation of his income was made with an intent to defraud, and husband had submitted affidavits generally explaining that the discrepancy in his income was unanticipated when the parties entered the stipulation. Wife appealed, this court ruled husband's income was substantially greater than the stipulated amount, and remanded for findings on whether wife's maintenance award was unreasonable and unfair in light of husband's actual income and wife's medical condition. Storbeck v. Storbeck, No. C0-96-904 (Minn. App. Nov. 26, 1996) (Storbeck I).

On remand, the district court again denied wife's motion, again finding husband did not intentionally misrepresent his income. The district court also found (a) wife had been advised to apply for social security benefits based on her medical condition but did not do so; (b) none of wife's doctors asked her to limit her work hours; (c) two doctors indicated wife's medical condition was improving; (d) wife should have moved to modify maintenance when she previously moved to modify support; and (e) it would be inequitable to award wife increased permanent maintenance from husband because, since the dissolution of the parties' marriage, wife remarried and redivorced. Wife again appealed; this court noted the district court did not follow the instructions in Storbeck I and remanded again, directing the district court's attention to Minn. Stat. § 518.552, subd. 2, and ordering the district court to determine whether the existing maintenance award was unreasonable and unfair in light of (a) husband's increased income; (b) wife's income and living expenses at the time of her motion; and (c) the finding in the 1993 support order stating husband's increased income rendered the existing order unreasonable and unfair. Storbeck v. Storbeck, No. C5-97-634 (Minn. App. Sept. 2, 1997) (Storbeck II). On remand, the district court (a) concluded husband explained the discrepancy between his stipulated and actual incomes; (b) found wife refused to rehabilitate; (c) concluded wife was not as disabled as she claimed; (d) ruled wife's failure to satisfy Minn. Stat. § 518.145, subd. 2 (1996), precluded modification of maintenance; and (e) denied wife's motion. Wife appeals a third time.


1. Whether to modify maintenance is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Generally, maintenance modification requires the moving party to show a substantial change in circumstances rendering the existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (Supp. 1997); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). 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).[1]

An increase in a maintenance obligor's income is not independently sufficient to support an increase in maintenance. Cisek v. Cisek, 409 N.W.2d 233, 236 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). Wife challenges the finding that she refused to rehabilitate. See Hecker, 568 N.W.2d at 709-10 & n.4 (maintenance recipient's good-faith failure to rehabilitate can be substantial change in circumstances allowing maintenance modification). Wife claims her unrefuted testimony shows that she is disabled and that her medical condition reduced her ability to work. But (a) wife admitted no physician told her to "curtail" her work as a result of her medical condition; (b) wife has not applied for social security benefits based on her alleged disability; and (c) the district court stated wife "presented no medical evidence to show that her [medical condition] in anyway limits her ability to practice her profession as a counselor." We defer to the district court's implicit determination that wife's assertions were not credible. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate courts defer to district court credibility determinations); Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (factfinder not required to accept uncontradicted testimony if circumstances show reasonable grounds for doubting credibility).

We reject wife's argument that under Hecker and Gessner v. Gessner, 487 N.W.2d 921 (Minn. App. 1992), her lack of rehabilitation entitles her to continued maintenance. A maintenance recipient must make a good-faith effort to rehabilitate. See Hecker, 568 N.W.2d at 710 n.4 (temporary maintenance recipient must make "reasonable effort to become self-supporting," particularly when parties stipulate to temporary maintenance); Gessner, 487 N.W.2d at 924 (rejecting argument district court's findings did not address reasonableness of maintenance recipient's failure to rehabilitate). Here, the district court found wife did not make a good-faith effort, noting she did not try to get the license necessary for counseling. Wife argues no evidence supports the district court's finding that obtaining a therapy license would expand her job prospects. The district court did not abuse its discretion by assuming wife's obtaining the license required for her chosen career would enhance her job prospects. See Minn. R. Evid. 201(b) (addressing court's ability to take judicial notice of facts not reasonably subject to dispute). To the extent wife argues she lacked the funds to obtain a license, we note she testified that in September 1994, she had enough in a savings account to acquire a license but apparently spent it on her daughter's wedding. Also, wife did not seek increased maintenance to pay for obtaining a license. See Minn. Stat. § 518.552, subd. 2(b) (1996) (considerations in awarding maintenance to include recipient's rehabilitation). Because the record lacks evidence addressing how much wife could earn if she had a license, we must remand for the district court, under Hecker, to impute to wife the income she would have if she had a license. See Hecker, 568 N.W.2d at 709-10 (affirming imputation of income to maintenance recipient in amount recipient would have earned if recipient had made a "reasonable effort" to rehabilitate).

2. We reject wife's argument that the district court erred by not properly addressing the factors listed in Minn. Stat. § 518.552, subd. 1. Storbeck II required the district court to address the factors listed in section 518.552, subdivision 2, not subdivision 1. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (on remand, district court is to "execute mandate of the remanding court strictly according to its terms").

Wife also challenges the district court's findings addressing the factors listed in subdivision 2. Because the district court did not find wife's monthly needs or whether they have changed since the judgment was entered, we again remand the issue of wife's expenses. See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (remanding maintenance modification where district court did not find, among other things, recipient's expenses). On remand, the district court shall determine wife's needs in light of the fact that her needs are a function of the marital standard of living. See Minn. Stat. § 518.552, subd. 2(c) (1996) (standard of living as consideration for maintenance award).

3. Wife states the district court erred in denying her motion to modify maintenance by ruling that she failed to satisfy Minn. Stat. § 518.145, subd. 2 (1996), regarding reopening judgments. We appreciate husband's candor in admitting Minn. Stat. § 518.145, subd. 2, is inapplicable here. Wife's failure to satisfy Minn. Stat. § 518.145, subd. 2, is not fatal to her motion to modify maintenance. See Minn. Stat. § 518.64, subd. 2 (setting out standard for modifying maintenance).[2]

4. Wife seeks attorney fees on appeal. She generically invokes Minn. Stat. § 518.14, subd. 1 (1996), apparently seeking need-based attorney fees. See Minn. Stat. § 518.14, subd. 1 (allowing need-based and conduct-based attorney fee awards). Need-based attorney fees "shall" be awarded if the recipient needs them for a good-faith assertion of rights, the payor can pay them, and the recipient cannot. Id. The record shows wife pursued this appeal in a good-faith assertion of her rights and that husband has the ability to pay a fee award, but, because we remand for findings on wife's expenses and imputed income, we must also remand the fee issue for findings on whether wife has the ability to pay her own attorney fees. See Richards v. Richards, 472 N.W.2d 162, 166 (Minn. App. 1991) (where appellate court remanded substantive issue and district court did not make findings to support need-based fee award, appellate attorney fees remanded). We note that an assertion by wife's attorney that wife is unable to pay her fees is of limited weight. See State ex rel. Sime v. Pennebaker, 215 Minn. 75, 77, 9 N.W.2d 257, 259 (1943) (disregarding affidavit of counsel as containing "nothing of evidentiary worth" and "founded upon mere hearsay" when it addressed facts of the case).

5. While we affirm the district court's finding that wife did not make a good-faith attempt to rehabilitate, we remand for the district court to address wife's motion to modify maintenance and her request for attorney fees on appeal. On remand, the district court shall (a) find wife's reasonable monthly expenses as of the time of her motion; (b) find wife's net monthly income, including any amount to be imputed to her for work as a licensed counselor; (c) address wife's motion to modify maintenance in light of its findings on wife's reasonable monthly expenses and her income; (d) award wife maintenance in the amount (if any) and duration proper under the circumstances; (e) determine, in light of wife's income, expenses, and any maintenance awarded her, whether she has the ability to pay her own attorney fees; and (f) if wife lacks the ability to pay her own attorney fees, award her an appropriate amount of attorney fees. We note that wife made her motion in 1995, and that, under Minn. Stat. § 518.64, subd. 2(c), maintenance modifications are generally retroactive to the date of the motion. We encourage the district court to expedite this matter.

Remanded; motion for attorney fees remanded.

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

[1] The parties cite unpublished opinions to support various arguments. Unpublished opinions are of limited value in deciding an appeal. 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, 800-01 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions is great and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential").

[2] To the extent wife may argue the district court's use of Minn. Stat. § 518.145 masks an animus against her, she is functionally asking this court to assume the district court erred by misstating the reason for denying her motion. We cannot do so. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (appellate courts cannot assume district court error). Wife also alleges the district court erred by applying res judicata even though Storbeck II prohibited such an analysis. Because the passage to which wife refers is made in the district court's discussion of Minn. Stat. § 518.145, subd. 2, the resolution of wife's claim regarding Minn. Stat. § 518.145, subd. 2, addresses her res judicata claim.