This opinion will be unpublished and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:

Roger A. Kubes, petitioner,



Joyce E. Kubes,


Filed June 8, 1999


Kalitowski, Judge

Dissenting, Klaphake, Judge

Scott County District Court

File No. F9103980

Christopher E. Morris, O'Neill, Traxler, Zard, Neisen & Morris, Ltd., 222 East Main Street, P.O. Box 105, New Prague, MN 56071 (for appellant)

Gerald O. Williams, Jr., Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435-5244 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Short, Judge.



Appellant Roger A. Kubes challenges the district court order increasing his maintenance obligation to respondent, Joyce E. Kubes, contending the district court erred by basing the award on income equalization without adequately considering the parties' expenses. We affirm.


Trial courts have broad discretion over maintenance awards and will only be reversed absent an abuse of that discretion. Novick v. Novick, 366 N.W.2d 330, 332 (Minn. App. 1985). If the trial court's determination has a reasonable and acceptable basis in fact and principle, the reviewing court must affirm. Id.

A maintenance award is based on many factors, none of which is dispositive of the issue. See Minn. Stat. § 518.552 (1998) (listing the many factors that are considered in the maintenance determination); Erlandson v. Erlandson, 318 N.W.2d 36, 39 (Minn. 1982) ("each case must be determined on its facts, and no single statutory factor for determining the type or amount of maintenance is dispositive"). The issue basically comes down to the obligee's financial needs and the obligor's ability to meet those needs. Erlandson, 318 N.W.2d at 39-40; see Minn. Stat. § 518.552, subd. 2(g) (1998) (stating that the court shall consider the ability of the spouse from whom maintenance is sought to meet needs while also meeting the needs of the spouse seeking maintenance).

Appellant argues that the court merely equalized the parties' incomes and did not adequately consider his ability to pay the maintenance obligation or respondent's ability to meet her own needs. We disagree. In its second order amending permanent maintenance, the court correctly stated that its basic consideration was the financial need of the spouse receiving maintenance and the ability of the other spouse to meet that need. (Citing Krick v. Krick, 349 N.W.2d 350, 352 (Minn. App. 1984)). The court also stated that the relative expenses of the parties were factored into its decision as to the method of calculation the court would use to meet the terms of the January 1995 order. Further, the court made a finding as to the parties' incomes, and noted appellant's and respondent's reported monthly expenses. While the court did not specifically address the reasonableness of the expenses, it commented that respondent's budget was "tight" and appropriately noted that many of appellant's largest expenses, such as mortgage and car payments, are shared with his current wife. See 14 Martin L. Swaden & Linda A. Olup, Minnesota Practice, § 8.11(j) (1992) ("The income of a payor's new spouse should, at a minimum, affect the living expenses claimed by the payor.")

We conclude the district court referenced and applied the correct legal standard and determined the result accordingly. While more explicit findings would have facilitated our review, we are convinced by the evidence in the record and the court's findings that a remand for additional findings would not change the substance of the district court's order. Therefore, because a remand would result in added expense and delay for the parties and would not further the purposes of Minn. Stat. § 518.552, we affirm. See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985) (finding that although the court could remand for findings, it would result in findings that comport with the language of the order, and therefore not further the legislative purpose).


KLAPHAKE, Judge (dissenting)

I respectfully dissent because the district court (1) based its maintenance award on income equalization, an erroneous theory of law, and (2) failed to make findings as to the parties' monthly expenses, respondent's need, or appellant's ability to pay.

Minn. Stat. § 518.551 (1998) lists a number of statutory factors to be considered when setting the amount and duration of maintenance. Income equalization is not one of those factors.

In its August 24, 1998 memorandum, the district court stated it would "consider what their positions would be if they were still married and then equalize that amount." The court went on to conclude:

[T]he parties' joint adjusted net monthly income is $4,490.82. To equalize this amount, the joint adjusted net income is divided in half and the respondent's adjusted net monthly income is subtracted, leaving the amount of maintenance to be paid.

In its October 1, 1998 second order amending permanent maintenance, the district court noted that in the first order,

the court was forced to estimate [appellant's] current income * * *. The court now has been presented with [appellant's] 1997 W-2 form and the court will therefore modify the maintenance award accordingly * * *. [Appellant] has a current yearly gross income of $43,895.08 based upon his 1997 W-2 form. This gives [appellant] a monthly gross income of $3,657.92 and an adjusted net monthly income of $3,378.09 * * *. Combined with respondent's adjusted net monthly income of $1,145.75, this gives a joint adjusted monthly income of $4,523.84. Half of this amount is $2,261.92. That amount less the respondent's adjusted net monthly income, leaves an equalizing amount of $1,116.17. This is the amount which the court awards in maintenance to the respondent.

An income equalization formula gives the maintenance recipient a share of the payor's income, regardless of the recipient's need and regardless of the payor's ability to pay, and does so without consideration of the statutory factors required to be considered when maintenance is awarded. Such a method of awarding maintenance is contrary to statute and case law. See Minn. Stat. §§ 518.64, subd. 2(c) (1998) (on motion to modify maintenance, district court "shall apply, 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") (emphasis added); 645.44, subd. 16 (1998) ("`[s]hall' is mandatory"); 518.552 (listing factors to be considered in awarding maintenance, including maintenance recipient's needs); Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (awarding maintenance requires recipient to show need for amount awarded); Snyder v. Snyder, 298 Minn. 43, 53, 212 N.W.2d 869, 875 (1973) (stating purpose of maintenance "is to care for the [recipient's] needs after divorce, not to provide [the recipient] with a life time profit sharing plan"); cf. Hortis v. Hortis, 367 N.W.2d 633, 635-36 (Minn. App. 1985) (rejecting income equalization as basis for awarding support).

The law on maintenance is clear; the district court must consider all relevant factors as set forth in the statute. Minn. Stat. § 518.552, subd. 2 (1998). The import of the several listed factors is that the recipient's need and the obligor's ability to pay are the primary considerations for a maintenance award. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982). The district court failed to balance the relative needs and resources of the parties.

Effective review is possible only when the district court demonstrates a detailed consideration of the statutory factors in its findings. Stich v. Stich, 435 N.W. 2d 52, 53 (Minn. 1989). The district court failed to make findings of the parties' monthly expenses, the respondent's need or the appellant's ability to pay. See id. (remanding for findings where district court made no findings on need or ability to pay).

The district court amended its order to state the parties' "reported" expenses and concluded that these "findings" addressed the question of need and ability to pay. The mere recitation of "claims" made by the parties is not a true finding of fact by the court, absent an affirmative assertion that these are the findings of the court. Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989). Moreover, the district court failed to explain how the respondent's claimed monthly expenses of $1,862 and her income of $1,145 produced a maintenance need and award of $1,116. Finally, the district court's failure to identify the portion of appellant's expenses attributable to his current wife and its explicit use of an income equalization formula cast grave doubt on the reliability of these so-called findings.

Absent adequate findings demonstrating a review of the statutory factors, particularly in light of the district court's use of an income-equalization formula, this award cannot be affirmed. I would remand this case to the district court to apply the relevant law and make the required findings.