This opinion will be unpublished and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:

Anne Louise Keller, petitioner,



Steven Joseph Keller,


Filed September 1, 1998


Short, Judge

Schumacher, Judge, Dissenting

Ramsey County District Court

File No. F4953273

John A. Warchol, Deno W. Berndt, Warchol, Berndt & Hajek, P.A., Suite 110, Broadway Place East, 3433 Broadway Street Northeast, Minneapolis, MN 55413 (for appellant)

Anne L. Keller, 4472 Arden View Court, Arden Hills, MN 55112 (pro se respondent)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Harten, Judge.


SHORT, Judge

Stephen Joseph Keller appeals from the trial court's grant of a spousal maintenance cost-of-living adjustment to his former spouse. On appeal, Keller argues the trial court erred in granting the adjustment because it was contrary to the terms of the parties' marital termination agreement. We affirm.


A trial court has broad discretion over issues of spousal maintenance, and will not be reversed absent an abuse of that discretion. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The interpretation of a contract presents a question of law, which we review de novo. Trondson v. Janikula, 458 N.W.2d 679, 681 (Minn. 1990).

Keller argues the trial court erred in granting his former spouse's request for a cost-of-living adjustment because the parties' marital termination agreement precludes such action. We disagree. In the absence of a clear and express statement, we will not assume the parties specifically bargained to waive the statutory right to a maintenance cost-of-living adjustment. See Minn. Stat. § 518.641, subd. 1 (1996) (mandating maintenance order provide cost-of-living adjustment unless waived in writing); see also Loo v. Loo, 520 N.W.2d 740, 745 (Minn. 1994) (requiring clear and express statement for waiver of statutory rights); see, e.g., Beck v. Kaplan, 566 N.W.2d 723, 726-27 (Minn. 1997) (holding trial court abused its discretion in adding cost-of-living adjustment where former spouse sought and failed to have it added to originally negotiated agreement).

Here, the parties' marital termination agreement expressly eliminates either party's ability to "modify" or "amend" the spousal maintenance amount, and divests the court of jurisdiction over either action. See Henry Campbell Black et al., Black's Law Dictionary 80, 1004 (6th ed. 1990) (defining terms "amend," and "modify"). However, the agreement does not prohibit a cost-of-living "adjustment." See id. at 43 (defining term "adjustment"). Furthermore, instead of expressly waiving such an adjustment, the agreement incorporates a cost-of-living clause that clearly provides either party with the right to seek a cost-of-living adjustment. By incorporating and including the cost-of-living clause in their agreement, the parties explicitly agreed on certain post-decree rights to an adjustment. In the absence of that clause, those post-decree rights would differ. See Berens v. Berens, 443 N.W.2d 558, 562 (Minn. App. 1989) (holding former spouse could not amend decree to include cost-of-living clause where parties waived all rights to modify that decree), review denied (Minn. Sept. 27, 1989).

Under these circumstances, the trial court did not err in granting Keller's former spouse's request for a spousal maintenance cost-of-living adjustment because the agreement expressly preserves her statutory right to such an adjustment. See, e.g., Loo, 520 N.W.2d at 745 (holding court retained jurisdiction to consider modification motion where judgment and decree contains neither contractual waiver of statutory right to modification nor express language divesting court of jurisdiction to consider such motions). Although the reasoning of McClenahan v. Warner, 461 N.W.2d 509 (Minn. App. 1990) supports our conclusion because it further distinguishes between a cost-of-living adjustment and a modification, we rest this opinion on the language chosen by the parties. To hold otherwise would be contrary to the ordinary meaning of the agreement's terms, render the cost-of-living clause meaningless, and subvert the intention of the parties to retain the statutory right of a cost-of-living adjustment. See Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn. 1995) (concluding courts must give parties' contractual language its plain and ordinary meaning); see also Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (Minn. 1990) (concluding court must not interpret contract in way that renders provision meaningless).


SCHUMACHER, Judge (dissenting).

I respectfully dissent. The language of the marital termination agreement, as adopted by the trial court, makes it abundantly clear that the parties intended to waive any right to modify or amend the spousal maintenance terms of the dissolution decree and to divest the trial court of jurisdiction to amend or modify the amount or duration of spousal maintenance.

If the parties agree in writing to waive all maintenance at the time of the initial decree, courts have no authority to award it in the future. Berens v. Berens, 443 N.W.2d 558, 562 (Minn. App. 1989), review denied (Minn. Aug. 8, 1989). The language in Berens provided that the wife

expressly waives all rights to modification of the maintenance ordered herein including but not limited to her rights under Minnesota Statutes § 518.64 for modifications of orders and decrees.

Id. at 563. We held that this waiver was sufficient to constitute a waiver of the cost-of-living provision under Minn. Stat § 518.641, subd. 1; Berens, 443 N.W.2d at 562.

I would conclude that, similar to the language in Berens, the language of the marital termination agreement in this case not only divested the court of jurisdiction but clearly evidenced the parties' intentions to preclude any modification of spousal maintenance, including a cost-of-living adjustment. I would reverse.