This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




Carol Kay Morrison, petitioner,



Robert Roy Morrison,


Filed December 8, 1998


Lansing, Judge

Stearns County District Court

File No. F0971047

Carol M. Klaphake, Hall & Byers, P.A., 1010 West St. Germain, Suite 600, St. Cloud, MN 56301 (for respondent)

Leo Dorfman, Dorfman & Dorfman, Ltd., 336 Parkdale Plaza, 1660 South Highway 100, Minneapolis, MN 55416 (for appellant)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.



In an appeal from judgment in a marital dissolution action, Robert Morrison disputes the amount and duration of spousal maintenance, the court's failure to enforce a stipulated property advance, and the requirement that he pay a portion of Carol Morrison's attorneys' fees. We find no reversible error or abuse of discretion and affirm.

This is a dissolution of Robert and Carol Morrison's 31-year marriage. During the marriage the Morrisons accumulated assets of approximately $1,800,000. The district court divided the assets equally and ordered Robert Morrison to pay Carol Morrison $2,500 monthly in spousal maintenance.

Robert Morrison is a board-certified, licensed pathologist at a Minnesota regional pathology laboratory and also serves as a medical director for a national clinical laboratory. His gross wages were $308,916 in 1997 and his gross annual average for 1990-97 was $278,301.

Carol Morrison is currently unemployed. She received a B.S. in occupational therapy in 1965 and worked as an occupational therapist for one year in 1966. For 14 years of the marriage, while the Morrisons' four children were young, Carol Morrison was a homemaker. During the other 17 years, she worked part-time as an occupational therapist, a nurse's aide, and a salesperson. Her highest annual salary during the marriage was $15,920, and her gross average annual salary from 1990-97 was $8,650. She terminated her last job in the fall of 1996 at Robert Morrison's request.

The district court concluded that Carol Morrison met the statutory requirements for spousal maintenance. It also found that she had incurred reasonable attorneys' fees and costs of $20,064.71 and, based on a finding of Robert Morrison's greater ability to pay, imposed attorneys' fees of $10,524. Robert Morrison appeals (1) the amount and duration of spousal maintenance, (2) the district court's failure to apply the terms of a stipulated property advance, and (3) the requirement that he pay $10,524 of Carol Morrison's attorneys' fees.


The standard of review for a maintenance determination is whether the district court abused its discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). The district court's conclusions must be "clearly erroneous * * * against logic and the facts on [the] record" before this court will reverse the decision. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Findings of fact that support the amount and necessity of spousal maintenance are upheld unless clearly erroneous. Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). In reviewing the award of attorneys' fees we also apply an abuse-of-discretion standard. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977).


To receive a maintenance award, the spouse seeking maintenance must show the lack of sufficient apportioned property to provide for reasonable needs, during but not limited to a period of training or education, considering the standard of living established in the marriage, and an inability to provide adequate support through employment. Minn. Stat. § 518.552, subd. 1 (1996). Robert Morrison argues that the district court erred in ordering $2,500 monthly spousal maintenance and specifically erred by not imputing income between $14,000 and $35,000 to Carol Morrison from full-time employment, by not finding she had income from investments and pension earnings of $4,282 per month, by not including actual pension disbursements in Carol Morrison's income, and by finding she lacked sufficient property to provide for her reasonable needs.

The district court did not abuse its discretion with its permanent maintenance award. With respect to imputing income, Carol Morrison's rehabilitation expert concluded that, although it would be reasonable for her to apply for occupational therapy jobs, the market was significantly weak and she would have difficulty finding full-time employment in the field. The rehabilitation expert estimated that Carol Morrison would be qualified for jobs that would provide earnings between $14,000 and $24,000 per year. Robert Morrison's rehabilitation expert concluded that Carol Morrison was eligible for occupational therapist jobs with an annual wage of approximately $26,000 to $32,000, but acknowledged that it would be necessary for her to complete additional coursework. Although Carol Morrison may be capable of full employment earning at least $14,000 annually, she does not yet have a job and the district court did not err by not imputing income to her. A court may impute income based on a party's earning capacity only if it first finds the party is underemployed in bad faith. Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997). The district court did not make a finding of bad faith, and the evidence does not support such a finding.

Declining to include actual pension distributions as part of Carol Morrison's income was not error. Carol Morrison's accountant calculated her income by including the projected yield from a half-interest in three of the parties' four pensions, but did not assume she would start drawing disbursements from the funds. Robert Morrison's accountant included as part of her available monthly income disbursements from 40 percent of the parties' pensions, projected over the course of her life expectancy.

"Courts normally do not expect spouses to invade the principal of their investments to satisfy their monthly financial needs." Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985) (citation omitted). Including pension distributions as income would require Carol Morrison to invade the principal of the funds. Moreover, Robert Morrison has not retired, he has surplus income from which to provide for Carol Morrison's needs as well as his own, and he is not drawing from the funds.

The finding that Carol Morrison had $3,244 in net monthly income from investments and pension earnings is supported by the record and not clearly erroneous. Both parties agreed that Carol Morrison's gross income from investments and pension earnings totaled $4,282 per month. The district court acted within its discretion in adopting the results of Carol Morrison's accountant, who calculated her after-tax income from this amount to arrive at the $3,244 net figure.

Applying the finding on net income, the district court concluded that Carol Morrison lacked sufficient property to provide for her reasonable needs. Robert Morrison does not dispute that Carol Morrison's reasonable monthly needs were $4,730. Subtracting Carol Morrison's net monthly income of $3,244 leaves a shortfall of $1,486. Taking into account taxes on maintenance, the court's award of $2,500 appropriately covered the difference.


Robert Morrison argues the trial court erred in not applying the terms of the parties' $25,000 stipulated property advance and, as a result, Carol Morrison "received a disproportionate allocation of the marital estate." Under the stipulation, the entire $25,000 would have been credited to Carol Morrison and included in her overall share of the marital assets. Instead, the court added the unspent part of the advance back into the marital estate and allocated it as part its overall equal division of assets. Robert Morrison received $10,619.50, and Carol Morrison received $5,203.50 of the amount remaining. Robert Morrison is mistaken in his claim that Carol Morrison received the $10,619.50.

The difference in following the stipulation instead of the judgment provision, in the absence of any tax consequences that were not raised below, amounts to approximately $4,500--one half of the approximately $9,000 Carol Morrison spent for her own benefit. By not incorporating the stipulation into the judgment, the court awarded Carol Morrison one fourth of one percent, or .0025, more of the marital estate than it otherwise would have, given an equal distribution. Even if this was error, it did not result in a "disproportional allocation of the marital estate" but is de minimis and does not require a remand. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for "de minimis" error in district court's setting of support).


The district court ordered that Robert Morrison pay approximately half of Carol Morrison's attorneys' fees and costs. Robert Morrison's surplus monthly income from wages alone, after paying Carol Morrison's maintenance and covering his own monthly expenses, is approximately $9,470.50. Carol Morrison's monthly expenses equal her monthly maintenance amount after payment of taxes. The district court did not abuse its discretion in its award of attorneys' fees. See Berenberg v Berenberg, 474 N.W.2d 843, 849 (Minn. App. 1991) (affirming attorneys' fees when both parties had been awarded $800,000 in marital property, but wife's only source of income other than marital property was child support payments, and husband had the resources to pay the fees), review denied (Minn. Nov. 13, 1991). We decline to award attorneys' fees on appeal.