STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Mark D. Thielen, petitioner,
Donna L. Thielen,
Filed July 28, 1998
Affirmed in Part, Reversed in Part, and Remanded
Washington County District Court
File No. F9963070
Kevin K. Shoeberg, Thomas, Shoeberg & Marcott, P.L.L.P., MidAmerica Bank Bldg., Suite 120, 6949 Valley Creek Rd., Woodbury, MN 55125 (for respondent)
Carl A. Blondin, 7475 15th St. N., Suite 204, Oakdale, MN 55128 (for appellant)
Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Davies, Judge.
This is an appeal from the maintenance and child support awards in a judgment of dissolution. We affirm in part, reverse in part, and remand.
Appellant Donna L. Thielen and respondent Mark D. Thielen had been married almost 22 years before their marriage was dissolved in October 1997. At the time of the dissolution, appellant was 41 years of age and respondent 42. The parties' three children were then 17, 18, and 21.
Pursuant to the dissolution decree, appellant was awarded physical custody of the parties' 17-year-old daughter and respondent received physical custody of their 18-year-old son. Respondent was ordered to pay $470.27 a month in child support and $1,200 a month (for five years) as temporary spousal maintenance.
I. Temporary Maintenance
Appellant argues that permanent, not temporary, maintenance is appropriate because it is uncertain whether she will ever become self-supporting.
A court may grant maintenance if it finds that the spouse seeking maintenance is unable to provide adequate self-support through appropriate employment or from property. Minn. Stat. § 518.552, subd. 1 (1996). The amount and duration of maintenance depends on the needs of the party seeking maintenance and the ability of the other party to pay. Id., subd. 2 (1996); Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982). On appeal, we will uphold the district court's findings concerning spousal maintenance "unless they are clearly erroneous." Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).
Here, the district court found that, based on appellant's "relatively young age and good health" and on the ages of the children, appellant "should be able to be self-supporting with some additional training." Although the evidence sustains the findings as to appellant's age, health, and the ages of the children, it does not follow that appellant can become self-supporting. Appellant presently works 32 hours a week and has a net monthly income of $1,683.62. Even assuming she finds a full-time position at the same hourly wage, her income would not cover her $2,900 in monthly expenses. We therefore reverse the temporary maintenance award and remand for the district court to make findings as to appellant's reasonable monthly expenses, measured by the standard of living during the marriage, and the income appellant can reasonably be expected to earn in the future. See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (inadequate maintenance findings require remand). If probable future income will be adequate to meet her expenses, temporary maintenance is appropriate. Otherwise, appellant is entitled to permanent maintenance. See Minn. Stat. § 518.552, subd. 3 (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."). To make these findings, the district court may, at its discretion, reopen the record.
Appellant's claim that the maintenance payments should be secured by life insurance was not addressed by the district court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate courts address only those issues raised in and decided by district court). We remand this issue, but do not imply that life insurance must be provided. We require only that the district court address the issue.
Appellant argues that the district court erred in determining respondent's net income. An appellate court will not reverse a district court's determination of net income used to calculate child support if the determination "has a reasonable basis in fact." Strauch v. Strauch, 401 N.W.2d 444, 448 (Minn. App. 1987).
The district court calculated respondent's monthly net income by multiplying respondent's biweekly net earnings, as reflected on his paychecks, by 26 pay periods and then dividing that amount by 12 months. This net income reflected deductions for deferred compensation and life insurance, in addition to the deductions allowed by Minn. Stat. § 518.551. The deferred compensation deduction was properly excluded from income in calculating child support because respondent's deferred compensation account was included as one of the parties' pension and retirement accounts, which were treated as property to be divided at a later date.
As to the life insurance deduction, it would add $16.56 to respondent's monthly income and $4.14 to his child support obligation. The difference is de minimus. Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimus error); see also Minn. R. Civ. P. 61 (harmless error is disregarded).
Appellant also argues that the court should have included respondent's income from part-time jobs. Child support, however, is based on "current net income." Merrick v. Merrick, 440 N.W.2d 142, 146 (Minn. App. 1989). At the dissolution hearing, respondent testified that his part-time teaching assignments were sporadic and that he had not been offered any teaching positions in 1997. Respondent also had done work for the Bush Foundation, a one-time project. Because the part-time work is sporadic, the district court did not err in excluding this income in its determination of respondent's current net income. See Minn. Stat. § 518.551, subd. 5(b)(2) (1996) (addressing whether to include income for employment in excess of 40 hours per week); cf. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989) (bonuses that are dependable may be included in income for maintenance purposes).
The child support award is affirmed.
Attached to the dissolution judgment and decree is an appendix, paragraph VII of which provides: "Child support and/or spousal maintenance may be adjusted every two years based upon a change in the cost of living * * * ." Although the district court did not reference the appendix in its order, it is statutorily mandated and, therefore, a part of the judgment and decree. See Minn. Stat. § 518.68, subd. 1 (1996) (every court order that provides for child support or maintenance must contain certain notices), id., subd. 2 (Supp. 1997) (requiring notice of cost-of-living increases). Thus, the district court did not omit a cost-of-living provision for maintenance payments and appellant's argument asserting error is moot.
Affirmed in part, reversed in part, and remanded.