This opinion will be unpublished and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:

Janice M. Wilber, petitioner,



Wally Wayne Wilber,


Filed June 15, 1999


Willis, Judge

Hennepin County District Court

File No. 218821

Ann C. Viitala, Union Plaza, Suite 405, 333 Washington Avenue North, Minneapolis, MN 55401 (for respondent)

Michael D. Dittberner, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435 (for appellant)

Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.



Appellant Wally Wayne Wilber challenges the district court's order requiring him to pay spousal maintenance to respondent Janice M. Wilber and denying his motions to vacate two previous orders. We affirm.


On April 2, 1998, the parties' 40-year marriage was dissolved pursuant to a marital termination agreement that governed all aspects of the dissolution except spousal maintenance. On April 6, 1998, the district court ordered appellant to pay $1,500 per month in spousal maintenance and issued an amended order on April 24, 1998, that corrected a typographical error.

On May 5, 1998, appellant moved for amended findings, and on July 1, 1998, he moved for a modification of the spousal-maintenance award. Before the district court ruled on either motion, appellant moved to vacate the April order and amended order. On September 30, 1998, the district court granted appellant's motion to modify the spousal-maintenance award, reducing it to $1,200 per month, effective September 1, 1998. The court denied appellant's other motions, and this appeal followed.


I. Spousal Maintenance

A. Original Award

Appellant argues that the district court erred in ordering him to pay respondent $1,500 per month in spousal maintenance. Determination of maintenance is a matter within the district court's discretion, and this court will not disturb that determination absent an abuse of discretion. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992). A district court abuses its discretion when it reaches a "clearly erroneous conclusion that is against logic and the facts on record." Id. (citation omitted). This court will affirm a district court's maintenance determination if it has an acceptable and reasonable basis in fact. Bliss v. Bliss, 493 N.W.2d 583, 586 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

In determining maintenance, district courts must consider several statutory factors relating to the financial situation of the parties. Minn. Stat. § 518.552, subd. 2 (1998) (listing factors). But no single statutory factor is dispositive in determining the amount or duration of maintenance. Zamora v. Zamora, 435 N.W.2d 609, 611 (Minn. App. 1989). The primary consideration is the financial need of the party seeking maintenance and that person's ability to meet that need, balanced against the financial condition of the other party. Maeder, 480 N.W.2d at 679.

Appellant claims that the district court abused its discretion in determining the parties' expenses. See Minn. Stat. § 518.552, subd. 2(a) (requiring court to consider financial resources of party seeking maintenance), subd. 2(g) (requiring court to consider ability of obligor to meet own needs and needs of obligee). Respondent submitted an affidavit claiming that her monthly expenses, excluding debts, were $2,685, and the court found that, excluding her debt service, respondent's reasonable expenses were $2,210 per month.[1] The evidence supports the court's finding regarding respondent's expenses.

The district court found appellant's monthly expenses to be $1,824. Appellant submitted an affidavit claiming $1,770 in monthly expenses, and in his pre-hearing statement, he claimed monthly expenses of $1,924. The district court found appellant's expenses to be between those amounts. Because the finding is not against logic and facts on the record, the district court did not abuse its discretion in determining appellant's expenses.

Appellant also claims the district court abused its discretion in finding respondent's monthly income was $1,400, asserting that the record contains no evidence to support the finding. See Minn. Stat. § 518.552, subd. 2(a) (identifying financial resources of party seeking maintenance award as factor court must consider). But both appellant and respondent submitted affidavits stating that respondent's net monthly income was $1,400. The court did not abuse its discretion in finding that was her monthly income.

Next, appellant claims that the district court abused its discretion in finding appellant had a net monthly income of $6,000. See Minn. Stat. § 518.552, subd. 2(g) (providing that court must consider ability of spouse from whom maintenance is sought to meet needs of self and of other party). Noting that appellant failed to provide "any corroboration or supporting documentation as to what his income is," the district court adopted the analysis of the referee, who made findings for the temporary maintenance award, and the court imputed $6,000 in net monthly income to appellant.

The referee had found that appellant acknowledged that approximately $6,000 per month was deposited in the parties' joint checking account. Because no source for this money was identified other than the parties' business, the referee inferred that the business was providing $6,000 in gross monthly income to the parties. This analysis is rational, and appellant provided no other statement regarding his specific monthly income.[2]

The district court did not explain why it found appellant had $6,000 in net, rather than gross, monthly income. But appellant does not assert that the alleged error affected the determination of his maintenance obligation. See Minn. R. Civ. P. 61 (providing that harmless error is not ground for reversal); see also Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) ("[E]rror without prejudice is not ground for reversal.") (citation omitted). And in any event, he had provided no documentation of his income to the district court. Cf. Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating that appellant cannot complain where inadequate documentation leads, at least in part, to the district court's decision regarding maintenance).

B. Modified Award

Appellant argues that the district court abused its discretion in ordering him to pay respondent $1,200 per month in spousal maintenance following the September 30, 1998, modification. He asserts that the court should have reduced further or eliminated entirely his maintenance obligation. Modification of a maintenance obligation is within the district court's broad discretion and will be reversed only if 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). A court may modify a maintenance obligation if the moving party demonstrates a substantial change in a party's earnings or in the needs of a party. Minn. Stat. § 518.64, subd. 2(a)(1-2) (1998).

Appellant claims that his income decreased substantially between April 6, 1998, when the court ordered him to pay $1,500 in monthly maintenance, and September 30, 1998, when the court reduced the amount to $1,200 monthly. As proof of his income, appellant provided an affidavit and an attached letter from his current employer's business manager, stating that appellant earned a total of $6,900 from April 29, 1998, to August 12, 1998. See Minn. Stat. § 518.551, subd. 5b (1998) (explaining that documentation of income includes pay stubs, employer statements, or statements of receipts and expenses, if self-employed).

Noting appellant had provided some evidence relating to his income, the district court nevertheless concluded that it could "not give much weight to this evidence, given [appellant's] past lack of candor" with the court and that appellant "has absolutely no credibility" with the court. The court concluded appellant did not meet his burden of demonstrating a substantial decrease in income, stating that appellant "still has not supplied proof of his income, his paycheck stubs, nor his business tax returns." See McClelland v. McClelland, 393 N.W.2d 224, 228 (Minn. App. 1986) (explaining that moving party must show modification is warranted by preponderance of evidence), review denied (Minn. Nov. 17, 1986).

Determination of appellant's credibility is uniquely within the province of the district court. See Devault v. Waller, 494 N.W.2d 92, 94 (Minn. App. 1992) (deferring to district court's credibility determinations) (citing Minn. R. Civ. P. 52.01). In any event, the business manager's letter, which was not in the form of an affidavit, and an accountant's estimate of appellant's expected income from August to December 1998 are not clear evidence of a substantial change in income. See Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980) (requiring moving party to present "clear proof of facts showing a substantial change in circumstances" before modification is warranted).

Appellant also claims that the district court abused its discretion by failing to consider evidence of changes in respondent's income and expenses, including respondent's 1997 income tax returns and seven wage receipts. But respondent's 1997 income tax returns are not relevant to show that respondent's income substantially changed between April 1998 and August 1998. Furthermore, the wage receipts do not show an increase in respondent's income over this time period. The district court did consider the change in respondent's expenses, finding that her expenses had decreased, and accordingly the court reduced appellant's monthly maintenance obligation by $300. The district court did not abuse its discretion in establishing appellant's maintenance obligation at $1,200 per month.

II. Motion to Vacate

Appellant argues that the district court abused its discretion in refusing to vacate the April 6, 1998, order and the April 24, 1998, amended order. See Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996) (applying abuse-of-discretion standard to district court's decision). Appellant claims that he has shown excusable neglect, mistake, and newly discovered evidence, any one of which is sufficient to grant him relief. See Minn. Stat. § 518.145, subd. 2 (1998) (providing court may relieve party from judgment and decree or order in marital-dissolution matter where there is excusable neglect, mistake, or newly discovered evidence).

The district court found that appellant provided no credible financial information. Appellant claims his attorney's failure to file such information was excusable neglect. The district court found no evidence of excusable neglect, and nothing in the record suggests that this finding was an abuse of the court's discretion.

Appellant also claims that the district court's determination of respondent's monthly expenses is erroneous because it was based on respondent's affidavit, which respondent subsequently admitted overstated her expenses. But the court recognized that respondent's requested expenses were higher than reasonable and determined that her monthly expenses were $2,210, excluding debt service. Because any error by respondent did not affect the court's findings, the district court did not abuse its discretion in refusing to vacate the prior orders because of mistake.

Claiming there is newly discovered evidence, appellant argues that the April orders should be vacated because respondent's bankruptcy petition listed monthly expenses in an amount less than that found by the district court. Acknowledging the information in the bankruptcy petition was new, the district court found that the amount shown in the bankruptcy petition represents respondent's "barebones living expenses," which reflects a lower standard of living than that to which she had become accustomed during the marriage. After considering the evidence, the court stated that the new information does not change its assessment of respondent's reasonable monthly expenses. Section 518.145, subdivision 2, is not mandatory, but discretionary, and the district court did not abuse its discretion in refusing to vacate the prior orders on the ground that there is new evidence.

III. Order Striking Paragraphs from Appellant's Affidavit

Appellant argues that the district court abused its discretion in striking four paragraphs from his February 2, 1998, affidavit on the ground that the paragraphs "contain immaterial and scandalous matters." See Haug v. Haugan, 51 Minn. 558, 561, 53 N.W. 874, 875 (1892) (applying abuse-of-discretion standard to such decisions on appeal). A district court may "order stricken from any pleading * * * any redundant, immaterial, impertinent or scandalous matter." Minn. R. Civ. P. 12.06. Appellant claims the information is relevant but does not dispute that the information is scandalous, and the district court may strike a matter on that ground. The district court acted within its discretion in striking the four paragraphs from appellant's affidavit.


[1] The court later stated that respondent's "requested expenses were much higher than reasonable," explaining why the court found respondent's reasonable non-debt expenses to be $475 less than she claimed.

[2] Appellant alleges that he provided financial documents to the court. But none specified a current monthly income.