This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




In Re the Marriage of:

Kay Marie Lof, petitioner,



Eugene Clifford Lof,


Filed March 2, 1999


Short, Judge

Becker County District Court

File No. F297983

Paul Thorwaldsen, Thorwaldsen, Beeson, Malmstrom, Sorum & Donehower, P.L.L.P. 1105 Highway 10 East, P.O. Box 1599, Detroit Lakes, MN 56502 (for respondent)

Charles A. Krekelberg, Tracey R. Lindberg, Krekelberg Law Firm, 213 South Mill Street, Fergus Falls, MN 56537 (for appellant)

Considered and decided by Short, Presiding Judge, Toussaint, Chief Judge, and Huspeni, Judge.[*]


SHORT, Judge

On appeal from an order awarding joint physical custody and establishing child support and spousal maintenance obligations, Eugene Clifford Lof argues the trial court abused its discretion by failing to reduce his obligations based on a substantial marital property award to his former spouse, her voluntary underemployment, and his current net income and ability to pay. By notice of review, Lof's former spouse argues the trial court abused its discretion by including spousal maintenance in her monthly income when calculating her child support obligation. We affirm.


The award of property, child support, and spousal maintenance rests within the broad discretion of the trial court. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). We will not reverse a property, spousal maintenance, or child support award unless it embodies a clearly erroneous conclusion. Rutten, 347 N.W.2d at 50.

Lof argues the trial court abused its discretion by failing to reduce his obligations in light of his former spouse's substantial marital property award and her voluntary underemployment. But the record demonstrates: (1) the substantial property amassed during the marriage was divided between the parties with Lof receiving $306,419.33 and his former spouse receiving $260,729.38, but Lof was ordered to pay, after three years elapsed, $45,690.00 with interest to his former spouse to equalize the property distribution; (2) the trial court calculated a hypothetical monthly income based on investing the total value of the property award at 5%, but declined to include the hypothetical amount calculated in either party's income; (3) Lof's former spouse desired to reduce her work hours to 16-20 hours per week for two to three years to obtain a Bachelor of Science in Nursing degree because the degree would offer her more employment opportunities, help her "get back on [her] feet," and may become necessary as health care changes; (4) Lof's former spouse cannot meet her living expenses working full-time at her present job, and will incur additional expenses returning to school; (5) Lof reported total income of $105,135 on his 1997 federal income tax forms; and (6) his former spouse reported total income of $27,684 on her 1997 federal income tax forms.

Although we are troubled by the trial court's "recitation" of the claim of reduction in work hours due to further education, we cannot say the trial court abused its discretion by finding Lof's former spouse "needs to attend college." See Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (holding trial court findings must be affirmatively stated as findings of trial court and not merely recitation of parties' claims). That finding of fact is supported by her testimony based on more than 15 years of nursing experience in the community and the reality that her potential income from full-time employment would not cover her living expenses. See Minn. Stat. § 518.552, subd. 2(b) (1998) (permitting award of spousal maintenance during time required for education or training); see also Pavlasek v. Pavlasek, 415 N.W.2d 42, 46 (Minn. App. 1987) (holding no abuse of discretion in awarding spousal maintenance for three years to former spouse, employed as teacher, who desired to obtain master's degree). Furthermore, it is undisputed that Lof's former spouse has reduced her work hours and is currently attending college.

Lof also argues the trial court abused its discretion by ordering him to pay his former spouse $45,690, after three years elapsed, to equalize the property distributions and by failing to include property-generated income in its consideration of maintenance and child support. Given the facts and our standard of review, the trial court did not abuse its vast discretion. See Ruzic v. Ruzic, 281 N.W.2d 502, 505 (Minn. 1979) (noting division of marital property need not be mathematically equal); Woolf v. Woolf, 296 Minn. 482, 482, 206 N.W.2d 349, 349 (1973) (holding no abuse of discretion in awarding maintenance after consideration of marital property distribution and other factors); Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (noting when insufficient information is presented, trial court cannot speculate on financial condition).

After a careful review of the record, we also cannot say the trial court abused its discretion by including the spousal maintenance award in the monthly net income of Lof's former spouse for purposes of determining her child support obligation. Lof's former spouse has monthly expenses of $3,496.27, including expenses for the children. Her income, including salary, rental income, maintenance, and child support, is $3,429.79 per month. For purposes of calculating child support, net income includes any form of periodic payment to an individual. Minn. Stat. §§ 518.54, subd. 6, .551, subd. 5(b) (1998). The trial court properly balanced the child support and spousal maintenance obligations to develop an equitable obligation. See Jensen v. Jensen, 409 N.W.2d 60, 62 (Minn. App. 1987) (recognizing balance between income from spousal maintenance and child support obligation). Whether spousal maintenance should be exempt from this income calculation is a question properly left for the legislature. See State v. Thunberg, 492 N.W.2d 534, 537 (Minn. 1992) (refusing to judicially legislate under separation of powers doctrine).

The trial court considered all relevant and statutory factors, made detailed findings of fact, and did not abuse its discretion in calculating Lof's spousal maintenance or child support obligations. See Minn. Stat. § 518.552, subds. 1, 2 (1998) (mandating consideration of all relevant factors including enumerated statutory elements in granting maintenance order); Erlandson, 318 N.W.2d at 39 (noting no single element or factor for determining type or amount of maintenance is dispositive); County of Nicollet v. Haakenson, 497 N.W.2d 611, 615 (Minn. App. 1993) (allowing consideration of most recent credible evidence of current net income in modifying child support).


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