may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
Steven Van Drake, petitioner,
Mary Jo Hultgren
f/k/a Mary Jo Van Drake,
Filed April 13, 1999
Todd County District Court
File No. F3-90-633
Jon K. Sannes, 124 Lake Street South, P.O. Box 247, Long Prairie, MN 56347 (for appellant)
Douglas P. Anderson, Rosenmeier, Anderson & Vogel, 210 Second Street Northeast, Little Falls, MN 56345 (for respondent)
Considered and decided by Harten, Presiding Judge, Randall, Judge, and Holtan, Judge[*]
Appellant challenges the district court's modification of his permanent maintenance obligation, arguing that the district court abused its discretion in failing to completely eliminate his spousal maintenance obligation. Appellant also challenges the district court's failure to apply the modification retroactively and the district court's failure to vacate the stayed order suspending his driver's license and his attorney license. We affirm.
The 21-year marriage of appellant Steven Van Drake and respondent Mary Jo Hultgren was dissolved in 1991. Originally, the district court awarded temporary maintenance to Hultgren in the amount of $500 per month. In November 1993, upon Hultgren's motion, the district court amended its 1991 findings and modified the original award to $1,000 per month in permanent maintenance. Van Drake appealed and we affirmed the district court's amended findings. Van Drake v. Van Drake, No. C3-94-522 (Minn. App. Dec. 27, 1994).
In 1996, Van Drake moved the district court to terminate or reduce his permanent maintenance obligation. The district court denied Van Drake's motion, finding that Van Drake's omission of financial records and information made it "impossible for him to meet his burden of proving his claims by credible, understandable evidence." Van Drake v. Hultgren, No. C8-96-2108, 1997 WL 207559, at *1 (Minn. App. Apr. 29, 1997). On appeal, we affirmed the district court.
Six months later, in October 1997, Van Drake again moved the district court to terminate or reduce his spousal support obligation due to a change in his financial circumstances. Although Van Drake's annual income was approximately $162,000 in 1989, $130,000 in 1990, and $114,000 in 1992, his gross income for 1995 was $5,689 and was $20,833 in 1996. Van Drake's law firm filed for bankruptcy in 1997.
According to Van Drake, the stress created by his financial problems caused significant physical and mental health problems and caused him to quit the practice of law in early 1997. Van Drake moved to South Carolina and now works as a journalist at a salary of $27,000. This salary provides him a net monthly income of $1,884.72. As found by the district court, Van Drake's monthly expenses are $1,569. The district court found that Hultgren's monthly net income is $1,813 and that her reasonable monthly living expenses are $2,954. In 1995 and 1996, Van Drake failed to make his $1,000 monthly spousal maintenance payments, except for one payment of $43. Through October 1997, Van Drake was in arrears on maintenance payments of $14,000.
Based on this data, the district court found that Van Drake was no longer able to comply with his monthly maintenance obligation of $1,000. Because his net income exceeded his reasonable living expenses by more than $300 per month, the district court ordered Van Drake to pay $250 per month in spousal maintenance and $50 per month on maintenance arrearages. Regarding its December 11, 1997, order directing the suspension of Van Drake's attorney license and driver's license, the district court continued the stay of that order on the condition that Van Drake make the ordered payments. Van Drake appeals.
Modification of a support obligation is within the district court's discretion and will be reversed only when the district court reaches a "clearly erroneous conclusion that is against logic and the facts on the record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).
According to Minn. Stat. § 518.64, subd. 2(a) (1998):
The terms of an order respecting maintenance or support may be modified upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party * * *.
Minn. Stat. § 518.64, subd 2(c) (1998) requires a district court to examine, in addition to all other relevant factors, "the factors for an award of maintenance under section 518.552 that exist at the time of the motion." These factors include whether a maintenance recipient "is unable to provide adequate self-support, after considering the standard of living established during the marriage," and "the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance." Minn. Stat. § 518.552, subds. 1(b), 2(g) (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).
In this case, Van Drake argues that the district court abused its discretion in reducing his support obligation by only $750 per month. In support of this contention, Van Drake cites his dire financial circumstances. Van Drake supports his argument, and it is a close question, but we can find enough support in the record for the district court's finding that the change in Van Drake's financial circumstances did not require a total elimination of his maintenance obligation. Thus, we affirm the greatly reduced amount set by the district court. Van Drake does not dispute the district court's findings that Hultgren's reasonable living expenses are $2,954 per month and he does not challenge the district court's finding that Hultgren's net income is $1,813 per month. He simply points out his drastic decrease in income and that Hultgren's income is approximately equal to his.
The district court considered Van Drake's ability to meet both his needs and those of Hultgren. As determined by the district court, Van Drake's monthly net income is $1,884.72 and his reasonable monthly expenses are $1,569. Although Van Drake argues that the district court discounted his legitimate and necessary expenses, he has not articulated specific errors committed by the district court in its computation. Van Drake also argues that the district court erroneously failed to consider the amount of social security and state income tax withholding. However, as the district court noted, Van Drake has not informed the court whether South Carolina has a state income tax. It is Van Drake's duty to make a full and accurate disclosure of assets and liabilities. Solon v. Solon, 255 N.W.2d 395, 396 (Minn. 1977). Based on the record, the district court's modification of the support obligation was reasonable and within its discretion.
Van Drake also argues that the district court erred in its failure to impose a retroactive modification for the time period when Van Drake failed to meet his court-ordered maintenance obligation. The district court has broad discretion in ruling on motions for modification. Wiese v. Wiese, 245 N.W.2d 371, 372 (Minn. 1980).
Forgiveness of arrearages constitutes a retroactive modification of a maintenance obligation. Gabbert v. Gabbert, 358 N.W.2d 163, 165 (Minn. App. 1984), review denied (Minn. Feb. 27, 1985). As Minn. Stat. § 518.64, subd. 2(d) states:
A modification of support or maintenance may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party and on the public authority if public assistance is being furnished or the county attorney is the attorney of record.
Minn. Stat. § 518.64, subd. 2(d) (1998). The statute also allows the district court to impose a retroactive modification for a period preceding the pendency of a motion for modification if "the party seeking modification was precluded from serving a motion by reason of a significant physical or mental disability." Id. at subd. 1(d)(1).
From the record, we conclude the district court did not abuse its discretion by failing to retroactively modify Van Drake's maintenance obligation. First, Van Drake did not argue in the district court that a retroactive modification was appropriate. Van Drake requested only that the district court approve his plan to pay $200.00 per month toward arrears. Because Van Drake did not move the district court to order a retroactive modification, he may not raise the issue on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding court will not consider issues not raised below). Second, Van Drake did not explain which portion of the unpaid maintenance obligation should be forgiven under a retroactive modification. Finally, there is not sufficient evidence in the record to support a finding that Van Drake's mental health problems precluded him from serving a motion for modification. See Minn. Stat. § 518.64, subd. 2(d)(1) (party seeking modification must show that he was precluded from serving motion by reason of significant physical or mental disability). For each of the foregoing reasons, the district court did not abuse its discretion in failing to retroactively modify Van Drake's support obligation and forgive his arrearages.
Lastly, Van Drake argues that the district court erred by failing to vacate the stayed order suspending both his driver's license and his attorney license. Section 518.551 states:
Upon motion of an obligee, if the court finds that the obligor is * * * licensed by a licensing board * * * and the obligor is in arrears in court-ordered * * * maintenance payments * * * in an amount equal to or greater than three times the obligor's total monthly support and maintenance payments and is not in compliance with the written payment agreement regarding both current support and arrearages approved by the court, * * * the court shall direct the licensing board * * * to suspend the license under section 214.101. * * * If the obligor is a licensed attorney, the court shall report the matter to the lawyers professional responsibility board for appropriate action in accordance with the rules of professional conduct.
Minn. Stat. § 518.551, subd. 12(a)(1998). The statute also requires that the order be stayed for 90 days "in order to allow the obligor to execute a written payment agreement regarding both current support and arrearages." Id. Substantially similar requirements exist with regard to the suspension of an obligor's driver's license. Minn. Stat. § 518.551, subd. 13 (1998).
Only because the district court stayed the order directing the suspension of Van Drake's attorney license do we affirm the district court's decision not to vacate the order. However, we caution the district court that there may be problems with the enforcement of that order. First, by drastically reducing Van Drake's maintenance obligation, which we affirm, the district court explicitly recognized the severe drop in his income and that he is now only able to afford modest payments on maintenance and arrearages totaling $300 per month. Accordingly, the stay of the order directing the suspension of Van Drake's licenses may not be lifted unless (1) he fails to comply with the district court's August 1998 order addressing his maintenance obligation; and (2) there is a separate hearing with notice and then a specific finding that he has the present ability to comply but has not. Lastly, we note that the language of section 518.551, subd. 12(a) does not confer upon the district court the authority to direct the lawyers professional responsibility board to suspend an attorney's professional license. Rather, a district court may only "report the matter to the lawyers professional responsibility board for appropriate action." Minn. Stat. § 518.551, subd. 12(a). The ultimate responsibility for suspension and other sanctions remains exclusively in the Minnesota Supreme Court. For that reason, a district court may not mandate the suspension of Van Drake's (or any other attorney's) license to practice law. It can only report and recommend.
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.