may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Melisande Helaine Vergona,
n/k/a Melisande Griffithskig Horowitz, petitioner,
Charles R. Vergona,
Filed June 8, 1999
Carlton County District Court
File No. F495984
Jack E. Setterlund, 825 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for appellant)
Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Amundson, Judge.
Challenging the denial of his motion to terminate spousal maintenance, appellant Charles Vergona disputes trial court findings that the needs and earnings of the parties had not substantially changed since the parties were divorced. We affirm.
The parties were married in 1975 and divorced in May 1997. Their youngest child turned 18 in 1998. In the stipulated judgment it was found that respondent Melisande Vergona (now Horowitz) had gross income of approximately $208 per month and appellant had net income of approximately $5,300 per month. Respondent's monthly expenses at the time of the judgment were approximately $2,300; appellant's were approximately $2,000. Appellant was required to pay $1,375 in monthly spousal maintenance and the judgment added that "[respondent] shall immediately seek employment."
Subsequently, respondent entered into a contract for temporary employment in Arizona, to earn $2,500 per month for three months from September through November 1998. Based on evidence of this employment and on a claim that his state taxes had increased significantly after a move to Minnesota, appellant sought an elimination of his spousal maintenance obligation and various other relief.
We review a spousal maintenance modification decision for an abuse of trial court discretion. Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989). The court's decision represents an abuse of discretion only if its conclusions are "clearly erroneous[,] * * * against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). Fact findings with regard to maintenance must be upheld unless "clearly erroneous." Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).
Before modifying a maintenance award, the trial court is to consider whether there has been a significant change in the parties' circumstances and whether this change has rendered the terms of the original decree unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (1998); Videen v. Peters, 438 N.W.2d 721, 724 (Minn. App. 1989), review denied (Minn. June 21, 1989). A substantial change in circumstances may include an increase or decrease in the earnings of a party, an increase or decrease in the need of a party, a receipt of assistance, or a change in the cost of living of either party. Minn. Stat. § 518.64, subd. 2 (a).
Appellant contends that are four factors showing a substantial change in circumstances: (1) respondent's temporary job; (2) a likely increase in income to respondent due to a renegotiated property settlement; (3) a decline in appellant's net income due to income taxes in Minnesota; and (4) respondent's insufficient efforts to obtain permanent employment. None of these factors compels a finding other than that made by the trial court.
Respondent's Arizona income was temporary and not ongoing; her investment income was unproven and appellant does not claim that it was significant. Appellant's decline in net income as a result of changed tax consequences does not in itself show an inability to pay. Moreover, any deterioration in appellant's financial circumstances is materially offset by the expiration of his child support obligation.
As appellant observes, the failure of a spouse to rehabilitate may be a substantial change of circumstances under Minn. Stat. § 518.64 (1998). Katter v. Katter, 457 N.W.2d 750, 753 (Minn. App. 1990). See also Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (allowing court to impute income when there is a willful failure to rehabilitate). In this case, the judgment specifically required respondent to seek a job.
Appellant has only recited a spotty record of respondent's efforts to gain employment; he has not shown or even asserted either respondent's bad faith in this regard or her willful failure to rehabilitate. Also, respondent's 22 years out of the workforce, her age, and her health problems affect her difficulty in finding work. The trial court's finding of no willful failure is supported by the evidence. A different finding is not compelled by evidence of respondent's short-term success in earning $2,500 per month.