This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Anton S. Nesse, petitioner,



Kaye R. Nesse,


Filed December 22, 1998


Crippen, Judge

Anoka County District Court

File No. F3-85-6924

Michael Ormond, Ormond Law Offices, 300 Sexton Building, 529 South Seventh Street, Minneapolis, MN 55415 (for appellant)

William E. Mullin, Maslon, Edelman, Borman & Brand, 3300 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Crippen, Judge, and Thoreen, Judge.[*]



In this maintenance modification proceeding, appellant Anton Nesse contends that the trial court erred in ordering him to continue paying maintenance to respondent Kaye Nesse until November 1999, when respondent reaches age 59 1/2 and can receive investment distributions without tax consequences. Respondent argues that maintenance should continue until she is age 65 and that the trial court should have granted her request for attorney fees. Because the trial court did not abuse its discretion in resolving these issues, we affirm.


The parties were divorced in 1988. Accompanying findings that the parties separated after seven years of marriage, that respondent had a bachelors' degree but had an emotional illness, and that the parties' marital standard of living was "very high," the judgment awarded respondent $3,000 monthly maintenance through March 1998, reserved maintenance thereafter, and awarded respondent an individual retirement account. In February 1998, respondent sought permanent monthly maintenance of $4,174 and attorney fees in the amount of $19,000.

After a hearing, the trial court found that respondent currently had reasonable monthly expenses of $3,141, that respondent had physical and emotional maladies that limited but did not eliminate her ability to work, and that respondent should opt to receive investment distributions in November 1999. The trial court also found (a) that respondent's self-sufficiency after November 1999 would be enhanced by the investment of proceeds from the sale of real estate, and (b) that respondent received a masters' degree in social work as well as a social worker's license from the state of Nevada, and that she could partially support herself through employment in the field of social work.


Whether to award maintenance after it is reserved is decided based on the circumstances at the time the issue is revisited. Harder v. Harder, 312 Minn. 300, 302, 251 N.W.2d 703, 704 (1977). While Minn. Stat. § 518.552 (1996) lists various factors to be considered when setting maintenance, the basic requirement is to balance the recipient's ability to meet expenses against the obligor's ability to pay maintenance. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982). The trial court has broad discretion in determining the content of a maintenance award and its underlying findings will not be set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

1. Appellant alleges that respondent's maintenance award is unwarranted and lacks adequate findings of fact. See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (maintenance depends on showing of need); Stich v. Stich 435 N.W.2d 52, 53 (Minn. 1989) (inadequate maintenance findings require remand).[1] The trial court made extensive findings showing its awareness that respondent's assets may produce some income, especially after the sale of real estate. The court also considered respondent's earning circumstances and correctly found that it was questionable whether she could earn enough to cover her needs. These findings are adequately supported by evidence in the record. In addition, the trial court correctly considered the short duration of the marriage, respondent's success in getting a bachelor's degree in social work during the marriage, her later master's degree, and her work in the social-work field. We appreciate that the trial court found respondent has assets of about $80,000 but do not deem existence of such assets to show an abuse of discretion regarding the extension of maintenance. We are also mindful of the trial court's finding that while respondent claimed monthly expenses exceeding $4,000, her reasonable monthly expenses are $3,141. In making this finding, the trial court showed its familiarity with the nature of the parties' lifestyle. Based on the facts it found, the trial court's short extension of the maintenance obligation was not an abuse of its broad discretion.

2. Respondent argues the trial court should not have terminated maintenance in November 1999. See Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (maintenance recipients should not be required to liquidate property to pay expenses). She argues that her normal retirement age is 65 and that she should not have to start withdrawing funds at age 59 1/2. The trial court rejected respondent's argument that requiring her to use her investments before age 70 1/2 would prematurely deplete her account and did so based on credibility grounds. We defer to the trial court's credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Also, we find no evidence of the depletion about which respondent is concerned; it is undisputed that her IRA investment was worth $748,118 on January 1, 1998, and will be worth more by November 1999, when she is expected to begin receiving distributions. Indeed, respondent cannot avoid the observation that a five percent return on the principal of this investment is, before taxes, almost equal to her monthly needs.

We observe that age 65 might have been an appropriate age at which to require respondent to start receiving IRA distributions. But we cannot say that the different judgment of the trial court was inappropriate, particularly when noting that distributions at that age will not cause respondent adverse tax consequences. Cf., Jorschumb v. Jorschumb, 390 N.W.2d 806, 813 (Minn. App. 1986) (finding custody determination within trial court's "broad discretion" even though appellate court might have acted differently in first instance), review denied (Minn. Aug. 27, 1986).

3. Respondent argues that because the label on her original maintenance award was "permanent," she was not required to work at all. While permanent maintenance does not require the recipient's self-sufficiency, temporary maintenance is awarded to allow the recipient to rehabilitate. Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986). Here, the original maintenance award expired in 1998, subject to review by the court. In the review, the trial court stated that the award "worked exactly as it was designed to work" by allowing respondent an opportunity to rehabilitate. Thus, in the review proceeding, the trial court resolved any conflict between the label of the award and its basic nature, determining that the judgment stated a temporary award. Such a reading of the award is entitled to "great weight" on appeal when, as here, it was made by the judge who made the original award. Mikoda v. Mikoda, 413 N.W.2d 238, 242 (Minn. App. 1987), review denied (Minn. Dec. 22, 1987).

4. Respondent argues that because her most recent job was similar to the one she had when she was awarded maintenance, she cannot be found to be underemployed or have income imputed to her. But respondent's maintenance award was a temporary award, and she had an obligation to rehabilitate. See Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (affirming imputation of income to maintenance recipient who refused to rehabilitate). The record contains conflicting expert evidence on respondent's ability to work and the trial court stated it considered respondent's physical and mental health when it made its maintenance decision. The record shows that since she was originally awarded maintenance, respondent has completed an advanced degree, obtained a license, and had considerable work experience in the field of social work. The court did not unduly attribute income to respondent.

5. Despite a 1997 $182 cost-of-living increase of respondent's original $3,000 maintenance award, the trial court stated that respondent's maintenance award should "continue" as the $3,000 amount it was before March 1998. As observed earlier, the trial court was to determine the reserved maintenance issue on the basis of present circumstances. Because the trial court found respondent's reasonable monthly expenses to be $3,141 at this time, its current award was not an abuse of its broad discretion. See Lyon, 439 N.W.2d at 22 (maintenance depends on need).

6. Respondent challenges the denial of her request for attorney fees. Fee awards are discretionary with the trial court and will not be reversed absent an abuse of discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987); see Minn. Stat. § 518.14, subd. 1 (1996). The trial court denied respondent's fee request, finding it excessive and finding that respondent has "significant" assets with which to pay fees. In doing so, the court considered the awards to respondent of maintenance and both marital and non-marital property. Because the trial court's findings regarding respondent's ability to pay fees are not clearly erroneous, the trial court did not abuse its discretion by denying fees to respondent, regardless of the amount requested. See Minn. Stat. § 518.14, subd. 1 (need-based attorney fee awards require showing that recipient is unable to pay fees).


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

[1] Respondent incorrectly alleges appellant is precluded from asserting that the amount of maintenance is excessive, because he did not raise that issue in a new trial motion. See Huso v. Huso, 465 N.W.2d 719, 721 (Minn. App. 1991) (in context of post-decree motion, there is no "trial" and motions for "new trial" are not needed to preserve issues for appeal).