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:
Irving M. Stern, petitioner,
Louise N. Gordon, f/k/a
Louise N. Stern,
Filed May 25, 1999
Affirmed as modified
Hennepin County District Court
File No. DW 138809
Louise N. Gordon, 4740 South Ocean Boulevard, No. 1106, Highland Beach, FL 33487 (pro se appellant)
Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Harten, Judge.
Appellant challenges the district court's order granting respondent's motion to terminate spousal maintenance. Appellant asserts that the district court erred by failing to reserve jurisdiction over the maintenance issue. We affirm as modified.
In September 1994, Gordon moved to enforce the order requiring Stern to pay $1,800 per month in maintenance and moved to incarcerate him until he paid all of his maintenance arrearages. Stern responded by moving to deny Gordon's motion, forgive all arrearages, and terminate his maintenance obligation or, in the alternative, reserve maintenance payments because of Stern's inability to make payments. These motions had not been resolved when Gordon filed another motion in March 1997, requesting: (1) Stern's incarceration for failure to pay maintenance; (2) an order directing Stern to reimburse Gordon for her travel to Minnesota and reimburse her for hiring an accountant to review Stern's business records; and (3) an order directing Stern to establish a $10,000 escrow account to pay her attorney fees. Stern responded by requesting that the court deny Gordon's motions, reduce Stern's maintenance obligation, and discharge his arrearages.
The district court held an evidentiary hearing to determine whether Stern had the ability to pay maintenance. In an April 6, 1998, order, the district court directed Stern to pay a total of $23,400 in arrearages for September 1, 1993, through September 1, 1994, and granted Stern's motion to terminate maintenance effective October 1, 1994, the date of his motion. The court denied the parties' other motions.
I. Maintenance Modification
In her statement of the case, Gordon raised the issue of whether the district court abused its discretion by terminating maintenance, but she did not address this issue in her brief. Thus, she has waived this issue. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating issue not argued in brief is waived). Gordon does address this issue to some extent in her reply brief, but an issue not addressed in an initial brief may not be revived in a reply brief. See McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990) (concluding issues not raised in brief were waived and could not be revived in reply brief), review denied (Minn. Sept. 28, 1990). Even if Gordon had properly addressed this issue, however, the evidence demonstrates that the district court did not abuse its discretion by terminating maintenance.
A maintenance order may be modified if the earnings of a party have substantially increased or decreased. Minn. Stat. § 518.64, subd. 2(a)(1) (1998). In addition to demonstrating a substantial change in circumstances, a party moving for maintenance modification must also "show that the change has the effect of rendering the original maintenance award both unreasonable and unfair." Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997) (citations omitted).
In deciding whether to modify a maintenance award, the district court must consider "the factors for an award of maintenance under section 518.552 that exist at the time of the motion." Minn. Stat. § 518.64, subd. 2(c) (1998). The relevant statutory factors include the financial resources of the party seeking maintenance and the ability of the other party to meet his needs while meeting the needs of the party seeking maintenance. See Erlandson v. Erlandson, 318 N.W.2d 36, 39, 40 (Minn. 1982) (recognizing that although there are numerous factors to consider, "the issue is basically the financial needs of [the party seeking maintenance] and her ability to meet those needs balanced against the financial condition of [the party from whom maintenance is sought]").
The district court found that although Gordon's income does not meet her monthly expenses, Stern does not have the ability to cover this shortfall. The court further found that Stern's decreased earnings, coupled with Gordon's assets, warranted termination of maintenance. The district court noted Stern's testimony that "he is nearly bankrupt, is living with friends, and is totally unable to pay anything to [Gordon]" and found that Stern supported his statements by introducing tax records for the years in question. The court also determined that notwithstanding Gordon's testimony that she believed that Stern was using his business to shield income, she produced no evidence to support her allegation.
Although Gordon urges this court to recognize that Stern has consistently lied to the court, the district court is entrusted with credibility determination. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (recognizing appellate court must defer to district court's opportunity to assess witness credibility). Based on the record, which includes Stern's 1993-1996 tax returns and Stern's testimony that he reported all of his income, there is support for the district court's determination that Stern's income has been significantly reduced.
II. Reservation of Jurisdiction
Gordon asserts that the district court erred by not reserving the issue of future maintenance. As Stern points out, Gordon did not request that the district court reserve jurisdiction before the court's decision and did not request amended findings.
Generally, this court will not consider issues not presented to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). All courts provide pro se parties some latitude and consideration. Liptak v. State ex rel. City of New Hope, 340 N.W.2d 366, 367 (Minn. App. 1983). Despite such latitude, appellants are not relieved "of the necessity of providing an adequate record and preserving it in a way that will permit review." Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) (citation omitted), review denied (Minn. Apr. 13, 1990). This court has discretion, however, to address any issue as the interests of justice require. Minn. R. Civ. App. P. 103.04. In light of the fact that appellant is pro se (and appeared pro se at the evidentiary hearing before the district court) and the fact that resolution of this issue would not prejudice Stern by making him liable for a maintenance award he cannot pay, we address this issue.
If spousal maintenance is terminated, the district court loses jurisdiction to modify maintenance after such termination. Eckert v. Eckert, 299 Minn. 120, 124, 216 N.W.2d 837, 839 (1974). The rationale for this rule is that "there cannot be modification of something that has ceased to exist." Id. at 125, 216 N.W.2d at 840. As this court observed in Eckert, however, the district court may reserve jurisdiction over maintenance expressly "or by necessary inference from use of the words 'until further order of the court.'" Id. at 126, 215 N.W.2d at 840.
The issue of whether a district court abused its discretion by refusing to reserve jurisdiction after terminating a maintenance obligation has not been addressed by the supreme court. In a somewhat analogous situation, in Barrett v. Barrett, 394 N.W.2d 274, 277 (Minn. App. 1986), this court addressed a district court's failure to include a reservation of jurisdiction over maintenance in an initial decree. In Barrett, this court determined that reservation was necessary because appellant could not support herself adequately and although respondent was then unemployed, his unemployment was seasonal. Id. This court has also concluded that a district court's decision to reserve jurisdiction over maintenance in an initial decree was not an abuse of discretion where a party had a medical condition that could necessitate future maintenance. See Haaland v. Haaland, 392 N.W.2d 268, 273 (Minn. App. 1986) (upholding reservation of maintenance where facts demonstrated progression of appellant's medical condition was uncertain); Van de Loo v. Van de Loo, 346 N.W.2d 173, 178 (Minn. App. 1984) (upholding reservation of maintenance because of respondent's uncertain health where respondent was in remission from cancer).
Stern asserts on appeal that reservation of jurisdiction is inappropriate in this case and states:
There comes a time in retirement years when spousal maintenance should naturally come to an end and the parties should rely on the assets they have accumulated, along with Social Security.
Stern points out that Gordon has other assets, including an IRA account. Despite Stern's argument, if Gordon attempts to bring a motion to modify maintenance in the future based on changed circumstances, both parties will be required to present evidence of their finances. See Minn. Stat. § 518.64, subd. 2(c) (providing that on motion for maintenance modification, court must consider Minn. Stat. § 518.552 (1998) factors,
which include financial resources of party seeking maintenance and ability of other spouse to meet own needs while meeting needs of spouse seeking maintenance).
There is evidence that Stern has previously withheld information from the court and refused to comply with court orders requiring him to delineate his income. In the original decree the district court observed, "[T]hroughout these proceedings [Stern] has claimed and/or projected income markedly less than his actual income." Additionally, Stern's income fluctuates with the number of clients his consulting firm assists, and he testified that he is attempting to rebuild his company. At the time of the dissolution, the district court determined that his average gross annual income from his employment alone was in excess of $200,000 from 1985-1988. At the evidentiary hearing before the termination of maintenance, he introduced his tax returns, which stated that in 1996 he had an adjusted gross income of just $5,664 and that he received $12,269 in social security. In light of the dramatic change in Stern's income in a short period of time, it is plausible that Stern's income might again change dramatically in the future. Reservation of jurisdiction over maintenance would leave open Gordon's right to move for modification if Stern's income changes in the future. Therefore, we modify the district court's decision and direct that the district court's jurisdiction over spousal maintenance is reserved.
Affirmed as modified.