This opinion will be unpublished and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:

Edlour Joseph Vondal, petitioner,



Michelene Doree Vondal,


Filed March 9, 1999


Huspeni, Judge[*]

Stearns County District Court

File No. F2-93-652

Neil R. Tangen, P.O. Box 758, Starbuck, MN 56381 (for appellant)

Michelene D. Vondal, P.O. Box 265, Battle Lake, MN 56515 (pro se respondent)

Considered and decided by Anderson, Presiding Judge, Huspeni, Judge, and Holtan, Judge.[**]



Appellant challenges the district court's denial of his motion to modify his maintenance obligations. Because the district court correctly applied caselaw and did not abuse its discretion in determining that the existing award of spousal maintenance was not unreasonable or unfair, we affirm.


The parties' marriage was dissolved in January 1994, and with the exception of spousal maintenance, all issues were resolved by stipulation. Under the decree, appellant Edlour Vondal received his Boiler Maker pension "free and clear of any claim" by respondent Michelene Vondal. Respondent was granted physical custody of the parties' four children. Appellant was ordered to pay $915 per month in child support.

After a March 1994 hearing on the issue of permanent maintenance, the district court found that respondent was unlikely to become self-supporting, and that, because of a back injury, she began receiving social security disability in 1990. The court further noted that, although respondent received only $38 per month from social security, the disability payments were expected to increase to $429 per month in November 1994. By order dated June 3, 1994, the district court awarded respondent permanent spousal maintenance in the amount of $300 per month. This figure was based on appellant's net monthly income of $2,440 from his employment with the City of St. Paul and his workers' compensation benefits.

Appellant became disabled in October 1996. He retired early and began to receive social security disability benefits. In January 1998, an administrative law judge modified appellant's child support obligation to $576 per month. The only children still subject to child support requirements are twins, who will become 18 on August 23, 2002.

In May 1998, appellant moved the district court for termination of his spousal maintenance obligation, arguing that since his early retirement he has derived his income solely from social security and his pension. The district court denied appellant's motion. This appeal followed.[1]


Modification of spousal maintenance rests within the broad discretion of the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). A district court's discretion to modify an existing award, however, should be exercised "cautiously and only upon clear proof of facts showing that * * * modification [is] equitable." James v. James, 397 N.W.2d 587, 590 (Minn. App. 1986).

The terms of an order respecting maintenance or support may be modified upon a showing of * * * substantially increased or decreased earnings of a party * * * which makes the terms unreasonable and unfair; * * *.

Minn. Stat. § 518.64, subd. 2(a) (1998). The moving party has the burden of demonstrating "both a substantial change in earnings and unfairness of the existing obligation as a result of the change." Savoren v. Savoren, 386 N.W.2d 288, 291 (Minn. App. 1986) (emphasis in original). Thus, "a favorable change in an ex-spouse's income, absent a showing that the second threshold * * * (unreasonableness and unfairness) has been met, does not by itself constitute sufficient grounds" to modify maintenance. Cisek v. Cisek, 409 N.W.2d 233, 236 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).

In addition, the fact that an increase in the recipient spouse's income was contemplated at the time of the dissolution is also relevant to the question of whether such an increase renders an award unreasonable. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (affirming conclusion that wife's employment did not render award unreasonable where small amount of maintenance award presumed that she would require an additional source of income). Here, appellant argues that because respondent's social security benefits have risen from $38 per month to $443 per month, she has experienced a ten-fold increase in income, making the current award of spousal maintenance unfair. The district court's order awarding maintenance specifically found, however, that respondent's monthly disability benefits were anticipated to increase to $429 per month. Thus, there is no merit in appellant's argument that this increase constitutes a substantial change in circumstances.

Appellant also asserts that because of his disability and early retirement, his circumstances have substantially changed making the existing award of spousal maintenance unfair and unreasonable. Regarding his pension benefits, appellant argues both that the district court's conclusions are not supported by the facts and that the court misinterpreted the caselaw governing payment of spousal maintenance from pension proceeds. We agree with appellant that he received his pension as property in the decree of dissolution, and we recognize that "[p]ension benefits awarded as property in a dissolution cannot be included in the income of a party when determining that party's maintenance obligation." Walker v. Walker, 553 N.W.2d 90, 94 (Minn. App. 1996). This would constitute an inappropriate postjudgment redistribution of property as income. Neubauer v. Neubauer, 433 N.W.2d 456, 461 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989).

Despite what we conclude was a typographical error in the district court order,[2] we believe the trial court applied the caselaw correctly and did not consider appellant's pension to be available for payment of maintenance. Appellant's net monthly income is $1,127, exclusive of his pension benefits. This is less than the $2,440 per month he was receiving at the time of the dissolution. Even if we were to agree, however, that this decrease represents a substantial change in circumstances, the record does not compel a determination that the court erred in failing to grant appellant's motion to reduce his spousal maintenance obligation. Absent a showing of unreasonableness and unfairness of an existing maintenance award, changed circumstances alone are inadequate to modify maintenance. Meyers v. Meyers, 409 N.W.2d 532, 534 (Minn. App. 1987).

In attempting to demonstrate the unfairness of the spousal maintenance award, appellant asserts that he, his current wife and her 23-year-old daughter, who lives with them, incur monthly expenses in the amount of $1,732. Appellant, however, provided no evidence to the district court to indicate what portion of these monthly expenses was attributable to him. Nor did he provide evidence of the ability of his wife, who is gainfully employed, to contribute to the couple's household expenses. Also, to the extent that the $1,732 figure includes expenses of an adult child of appellant's wife, those expenses could not be considered. See, e.g., McGleno v. McGleno, 393 N.W.2d 8, 9 (Minn. App. 1986) (stating that courts are not required to treat adult children the same as minor children when considering child support).

Finally, appellant also argues that the existing maintenance obligation is rendered unfair because, after paying spousal maintenance and child support, he is left with only $221 from his disability benefits to meet his expenses. We cannot evaluate this argument because, as noted above, appellant's claimed expenses may be overstated by his apparent assumption that he should be credited the expenses attributable to himself, his current spouse, and her adult child. Also, because the terms of a dissolution judgment are interrelated, the amount appellant will have after paying maintenance and support will depend, at least in part, on the amount of appellant's support obligation. See Brugger v. Brugger, 303 Minn. 488, 492-94, 229 N.W.2d 131, 135-36 (1975) (noting dissolution judgments can involve many interrelated issues). Here, however, the interrelationship of appellant's support obligation and his disability benefits was not argued to the district court, the district court did not address the issue, and we decline to do so. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding appellate courts generally do not address issues not addressed by district court); see also Holmberg v. Holmberg, 578 N.W.2d 817, 826-27 (Minn. App. 1998) (addressing relationship of social security disability benefits to child support), aff'd and remanded ___ N.W.2d ___ (Minn. Jan. 28, 1999) (relationship of social security disability benefits to child support not subject of review).

Appellant has not shown that the district court clearly erred in refusing to find his current maintenance obligation to be unreasonable or unfair or that the district court abused its discretion by refusing to reduce his maintenance obligation.


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

[**] 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] Respondent did not file a brief in this matter. Therefore, we determine the case on the merits pursuant to Minn. R. Civ. App. P. 142.03.

[2] The district court stated in its memorandum:

While [appellant] asserts that his entire pension is exempt from consideration in determining maintenance, the more correct statement is that it is not until an obligor has received from the pension an amount equivalent to its value as determined in the original property distribution, that a pension is not available for maintenance. "Once the obligor has received that amount, a court may properly consider his subsequent pension benefits as `income' for maintenance purposes." Walker v. Walker, 553 N.W.2d 90, 94 (Minn. App. 1996).

The court correctly recognized the holding of Walker, and we deem the second use of the word "not" in the sentence immediately preceding the direct quote from that case to be inadvertent and we ignore the error. See Minn. R. Civ. P. 61 (harmless error to be ignored).