This opinion will be unpublished and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:

Richard Ernest John Passenheim, petitioner,



Judith Ann Passenheim,


Filed April 13, 1999

Affirmed as modified

Huspeni, Judge[*]

Anoka County District Court

File No. FX976845

A. Larry Katz, Elizabeth B. Bowling, Katz & Manka, Ltd., 4150 U.S. Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for respondent)

Beverly K. Dodge, Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids, Blvd., Coon Rapids, MN 55433 (for appellant)

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



Appellant Judith Ann Schaffran Passenheim contends the trial court erred in finding that the distribution of respondent's pension was income and not property and in failing to secure the spousal maintenance award with life insurance. Respondent Richard Ernest John Passenheim, by notice of review, contends the court erred in calculating his expenses and resulting spousal maintenance obligation and in awarding attorney fees to appellant. Because the trial court's categorization of pension distribution as income was erroneous, and because we find no error in any of the remaining challenged decisions of the court, we affirm as modified.


When appellant wife and respondent husband decided to dissolve their 37-year marriage, they stipulated to a property settlement that included a pension distribution; they submitted the spousal maintenance issue to trial. In the dissolution decree, the court determined that the stipulated pension division should be considered income, not part of the property division. In calculating respondent's expenses, the court included anticipated mortgage costs and real estate taxes. Based on these figures, the court awarded appellant $800 per month in spousal maintenance, reduced to $300 per month after September 1, 1999, when it was assumed respondent would retire. The court also ordered that respondent pay $7,500 for partial reimbursement of appellant's attorney fees and costs.

Upon motions of both parties, the court amended the decree to deny respondent's anticipated mortgage and real estate taxes expenses, recalculate respondent's expenses, and alter the spousal maintenance award so that appellant received $1,200 per month, without an automatic step down at the expected date of respondent's retirement.


1. The Pension Distribution

The interpretation of a stipulation is a legal rather than an equitable matter. Jensen v. Jensen, 440 N.W.2d 152, 154 (Minn. App. 1989). This court need not give deference to a trial court's decision on a purely legal matter. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). Courts favor stipulations in dissolution cases as a means of simplifying and expediting litigation and to bring resolution to what is often an acrimonious relationship between the parties. Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn. 1997). If a stipulation was "improvidently made and in equity and good conscience ought not to stand, it may be vacated." Id. at 522. Further, a court may refuse to accept the terms of the stipulation in part or in whole, because

[i]t has a duty to protect the interests of both parties and all the citizens of the state to ensure that the stipulation is fair and reasonable to all.

Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989).

A court may treat a pension as income or as property, but not as both. See Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn. App. 1988) ("[T]here is support for * * * [the] argument that the pension should be viewed as property or income, but not both."); Neubauer v. Neubauer, 433 N.W.2d 456, 461 (Minn. App. 1988) ("It appears that the statutes may be interpreted broadly enough to permit the trial court, under appropriate circumstances, to elect either treatment."). Pension 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).

Appellant and respondent stipulated to a property settlement that was approved by the court. Before the stipulation was read into the record, respondent's attorney stated that only three issues needed to be decided by the court: spousal maintenance, attorney fees, and the apportionment of the 1997 income tax. The parties then recounted the property distribution to the court, including the pension distribution. Directly following this conversation, the parties acknowledged their full and complete agreement "with regard to the property settlement issues." From the sequence of events, we conclude that the parties intended the pension distribution to be part of the property settlement and not income to be considered in the spousal maintenance calculation.

The trial court, in its memorandum supporting the order amending the judgment and decree, stated,

while the [appellant] has called the pension division a property settlement, the pensions were actually considered in light of their income potential rather than simply being divided up by their present values. As a result, the income from the pensions is properly considered as income rather than property.

The court did not find the stipulation as it was before the court modified it unfair or unreasonable, nor did it find that the stipulation was improvidently made or inequitable. The change was not needed to protect the interests of either the parties or the state to ensure fairness and reasonableness. Indeed, the law supports the theory that pension payments may be considered either income or property. Further, the court did not formally reject the pension provision of the stipulation or offer the parties the option of having that issue tried as a contested one, nor did the court indicate an examination or consideration of the interdependent nature of issues in a dissolution action and how alteration of one provision may affect all other provisions. See Brugger v. Brugger, 229 N.W.2d 131, 133-34 (Minn. 1975) ("[s]upport provisions are usually so intertwined with other rights and obligations in divorce decrees that it usually cannot be said that the [particular contested issue] is the only part of the decree that would be affected [by a particular holding on the contested issue]."). Therefore, we conclude the trial court erred by altering the stipulated agreement and determining that the pension should be considered income and not property. The pension distribution must be considered part of the property settlement, as agreed by the parties.

The trial court's decision to count the pension as income does not affect the current property distribution or maintenance award; however, unless corrected, that erroneous categorization could affect future modifications of the maintenance award. We therefore modify the relevant provisions of the original decree and post-decree order to reflect our decision here.[1] In any future modification, the benefits appellant receives from respondent's pension shall not be considered in determining her income and resulting maintenance needs. Likewise, any pension benefits respondent receives shall not be considered available as income to meet his spousal maintenance obligation.

2. Life Insurance

A trial court has discretion to determine "whether the circumstances justifying an award of maintenance also justify securing it with life insurance." Laumann v. Laumann, 400 N.W.2d 355, 360 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987). Factors justifying life insurance include an award of permanent maintenance, the duration of a marriage, and the recipient spouse's age and work experience. Walker v. Walker, 553 N.W.2d 90, 96 (Minn. App. 1996).

Appellant is 54 years old and was married for 36 years. She has some health difficulties, including problems with her joints and back, which will continue to affect her daily activities and may limit her future employment. She is currently working, however, and plans to continue to do so. She also will receive permanent spousal maintenance, and she was awarded a substantial property settlement. We conclude that the district court did not abuse its discretion in denying appellant's request for a life insurance award to secure her spousal maintenance. See Fastner v. Fastner, 427 N.W.2d 691, 701 (Minn. App. 1988) (finding that because appellant had job skills and was employed, the trial court did not abuse its discretion in its denial of her request for life insurance).

3. The Maintenance Award

The standard of review for a spousal maintenance award is whether the trial court abused the wide discretion accorded it. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). This court will not find an abuse of discretion absent "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A trial court's calculation of living expenses, however, must be supported by the evidence. See Lynch v. Lynch, 411 N.W.2d 263, 266 (Minn. App. 1987) (implying that calculation of living expenses must be supported by the evidence).

Respondent argues that the court erred in not including his anticipated mortgage and real estate costs when calculating his monthly expenses and that therefore the spousal maintenance award is unjustified. We see no error. Caselaw supports the trial court's determination on this issue. In Rask v. Rask, 445 N.W.2d 849, 854 (Minn. App. 1989), this court reversed the trial court which had included in a party's reasonable expenses a mortgage payment that would be required when the party bought a house. Id. at 854. This court observed that there was no evidence in the record concerning when or even whether the party would incur the mortgage expense. Id.

As in Rask, respondent here had no obligation to do what he said he would "probably do" with regard to housing. Although he had a general idea of what he wanted, his plans were still speculative. We conclude that the court was within its discretion in substituting the $700 actual rental expense for the $950 anticipated mortgage and real estate costs. Respondent may seek a post-decree modification should his expenses significantly change.

Respondent also argues that the court erred by omitting from the amended order the automatic step reduction in maintenance that was awarded in the original order. Minnesota courts have disfavored awarding step reductions when they are based upon uncertain events. See Schreifels v. Schreifels, 450 N.W.2d 372, 374 (Minn. App. 1990) (finding that assumptions that appellant's income would increase and the respondent's income would decrease were too speculative to support an automatic step reduction); Frederiksen v. Frederiksen, 368 N.W.2d 769, 776 (Minn. App. 1985) (finding that the assumption that appellant would find employment that would increase her income $200 per month was too speculative to support an automatic step reduction). In this case, it is fairly certain that respondent will retire in August 1999. In light of other consulting opportunities, however, it is not certain that his income will decline after his retirement. We conclude the court did not abuse its discretion by omitting the automatic step provision from the final judgment and decree. Again, respondent has the opportunity to move the court for modification of his spousal maintenance obligation should his income decrease in the future.

4. Attorney Fees

The award or denial of attorney fees is a discretionary decision that will not be upset absent an abuse of discretion. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). The trial court's discretion is so broad in allocating attorney fees that a reviewing court rarely will reverse the trial court's determination. Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990).

Minnesota law states that the district court shall award attorney fees in an amount necessary to enable a party to carry on or contest the proceeding, provided it finds

(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees * * * are sought has the means to pay them; and
(3) that the party to whom fees * * * are awarded does not have the means to pay them.

Minn. Stat. § 518.14 (1998). The district court addressed all three factors in the statute and determined that a limited attorney fee award was appropriate. We conclude the court did not abuse its discretion in making this determination.

Affirmed as modified.

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

[1] In its post-decree order, the trial court removed the "step-down provision" of spousal maintenance and increased that award to $1,200 per month. We believe it proper to infer that this alteration was recognition by the trial court that pension monies received by appellant would not be considered income to her. The trial court denied, however, appellant's motion to eliminate reference to these monies in the decree. In order to implement our decision in this case, the parties and the trial court shall assure the removal from Finding XIV of the decree any reference to appellant's anticipated receipt of over $700 per month from respondent's pension benefits. Also, no inference shall be taken from Finding X that any of respondent's pension benefits will be available to meet his spousal maintenance obligation.