This opinion will be unpublished and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:

Melody Ann Gruby, petitioner,



Virgil Willis Gruby,


Filed September 8, 1998


Toussaint, Chief Judge

Traverse County District Court

File No. F596137

Robert V. Dalager, P.O. Box 527, Morris, MN 56267 (for respondent)

Ronald R. Frauenshuh, Jr., 129 N.W. 2nd Street, Ortonville, MN 56278 (for appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Thoreen, Judge.*


TOUSSAINT, Chief Judge

In this consolidated appeal, appellant Virgil Willis Gruby challenges the district court's order denying his post-trial motions and his later motion to vacate a dissolution judgment. Because the district court did not abuse its discretion in denying appellant's post-trial motions or err in denying his motion to vacate, we affirm.


The parties married in South Dakota. When they separated respondent-mother Melody Ann Gruby and the children moved to Minnesota. Respondent's dissolution petition alleged she resided in Minnesota for at least 180 days before she petitioned to dissolve the marriage. Appellant's answer admitted this allegation. After a judgment dissolved the marriage, appellant moved for new trial, alleging the district court lacked subject matter jurisdiction to address support and maintenance issues. He also sought a reduced maintenance obligation. A February 1988 order denied his motion. In March, appellant moved to vacate the judgment alleging lack of subject matter jurisdiction based on the "newly discovered evidence" that respondent had a South Dakota driver's license. The district court denied the motion, ruling the driver's license "was not newly discovered evidence and could have been discovered with due diligence."



Alleging respondent was never domiciled in Minnesota, and hence that the district court lacked subject matter jurisdiction over the case, appellant argues the district court erred in denying his motions. See Minn. Stat. § 518.07 (1996) (allowing Minnesota court to dissolve marriage if either party resided in, or was domiciled in, Minnesota for at least 180 days before the proceeding started); see Wyman v. Wyman, 297 Minn. 465, 467, 212 N.W.2d 368, 369 (1973) (dissolution granted without jurisdiction is void). The existence of subject matter jurisdiction is a legal question we review de novo. Neighborhood Sch. Coalition v. Independent Sch. Dist. No. 279, 484 N.W.2d 440, 441 (Minn. App. 1992), review denied (Minn. June 30, 1992).

Noting respondent has a South Dakota driver's license, South Dakota license plates on her car, and a South Dakota hunting and fishing license, appellant claims respondent is domiciled in South Dakota. Section 518.07, however, allows jurisdiction to be "based on either residence or domicile." Jones v. Jones, 402, N.W.2d 146, 149 (Minn. App. 1987) (emphasis added). Here, (a) appellant admitted respondent satisfied the residence requirement to petition for dissolution; (b) noting she moved to Minnesota in 1994 but did not petition to dissolve her marriage until 1996, the district court ruled respondent satisfied the 180-day residence requirement; and (c) the district court also ruled that, despite appellant's alleged "newly discovered evidence," respondent's intent to remain a citizen of Minnesota (as of the time of the posttrial proceedings) was not relevant to question of residence because the court need only look to intent at the time of the commencement of the proceeding. It is undisputed both that appellant conceded the residence requirement and that respondent moved to Minnesota more than 180 days before she petitioned to dissolve her marriage. Also, the district court's ruling on residence and intent is consistent with statute. See Minn. Stat. 518.003, subd. 2 (1996) (defining residence as place "where a party has established a permanent home from which the party has no present intention of moving") (emphasis added). Appellant has not shown the district court's findings regarding respondent's residence to be palpably contrary to the evidence and we will not alter those findings. See Davidner v. Davidner, 304 Minn. 491, 493, 232 N.W.2d 5, 7 (1975) (finding that residence requirement is satisfied will be reversed only if it is "palpably contrary to the evidence").

To the extent appellant asserts respondent may be domiciled in South Dakota, the argument is irrelevant because the statute allows jurisdiction to be based on either residence or domicile and he admitted respondent satisfied the residence requirement. Absent an argument and evidence showing respondent failed to comply with the residence requirements of Minn. Stat. §§ 518.07 and 518.003, subd. 2, appellant has not shown the district court's findings to be "palpably contrary" to the evidence or that the district court lacked subject matter jurisdiction over the relevant portions of this proceeding.


Appellant challenges his maintenance obligation.[1] Absent an abuse of its "wide discretion" in awarding maintenance, "the trial court's determination is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). An abuse of discretion occurs if the district court makes "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). While Minn. Stat. § 518.552 (1996) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40. 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).

Appellant incorrectly argues the district court failed to consider respondent's property settlement when awarding maintenance. The district court stated that it made its maintenance award because, in light of appellant's history of not making court-ordered

maintenance and support payments, there was "no assurance" respondent would ever receive her property settlement. If respondent does not receive her property settlement, respondent could be required to liquidate her remaining property to meet expenses. Such a result is inconsistent with case law. See Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (courts normally do not expect spouses to invade principal of their property to meet monthly expenses).

Noting two of the parities' children are emancipated, appellant also claims the district court overstated the parties' marital standard of living by considering the parties' six bedroom marital home, which he claims is no longer needed. Regardless of whether the parties' marital homestead is currently needed for their children, it, among other things, indicates the standard of living the parties had while married. See Minn. Stat. § 518.552, subd. 2(c) (1996) (requiring district court to consider marital standard of living when awarding maintenance). Appellant has not shown that the district court's ruling on the parities' marital standard of living, of which the marital homestead is one piece of evidence is clearly erroneous.

To the extent appellant claims the district court erred in setting maintenance by looking at his 1995 and 1996 tax returns, we note that if his income changes substantially in a manner that renders his existing obligation unreasonable and unfair, he may move to modify maintenance. Minn. Stat. § 518.64 (1996 & Supp. 1997).

The record shows the district court considered the statutory factors when making its maintenance award. Indeed, other than expressing dissatisfaction with the outcome of the proceedings, appellant directs us to no evidence to support his arguments. See Minn. R. Civ. App. P. 128.03 (material assertions of fact in brief must be supported by cite to record); Hecker v. Hecker, 543 N.W.2d 678, 681-2 n. 2 (Minn. App. 1996) (same), aff'd 568 N.W.2d 705.[2] On this record, appellant has not shown that the district court abused its discretion by setting his maintenance obligation at an excessive level.


*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] A heading in appellant's brief seems to challenge his support obligation. Because the brief makes no argument addressing support, we do not address the issue. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (issues not briefed are waived). Nor do we address the duration of the maintenance award.

[2] We also note the appendix to appellant's brief lacks both the documents and the pagination required by Minn. R. Civ. App. P. 130.01, subd. 1.