This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat § 480A.08, subd. 3 (1998)


Elaine P. Zacrep, petitioner,


John Ivan Zacrep,

Filed July 13, 1999
Lansing, Judge

Dakota County District Court
File No. F37541877

Ellen Dresselhuis, Dresselhuis Law Office, P.A., Enterprise Building, 2738 Winnetka Avenue North, New Hope, MN 55427-2850 (for appellant)

Thomas P. Lowe, Lofstrom & Lowe, P.A., 4635 Nichols Road, Suite 206, Eagan, MN 55122 (for respondent)

Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D   O P I N I O N


This is an appeal from a district court's order terminating spousal maintenance. The dissolution judgment incorporated a stipulation providing spousal maintenance until death or remarriage. The district court did not find a substantial change of circumstances, and the file demonstrates that no substantial change occurred. We reverse.


In a 1975 stipulated judgment and decree, John and Elaine Zacrep agreed that John Zacrep would provide child support equal to 50 percent of his net income. As each of the three Zacrep children reached majority, the child support was converted to spousal maintenance up to a cap of $525.73 per month, to be paid "until such time as [Elaine Zacrep] shall remarry or die." The youngest child was emancipated in 1987, and from 1987 until 1995 John Zacrep paid the stipulated amount. In 1995 he moved to terminate spousal maintenance. The district court ordered arrearages to be paid, but terminated spousal maintenance as of December 12, 1995.

Elaine Zacrep appealed the district court's termination order, and a panel of this court reversed and remanded. Noting that the spousal maintenance was the product of a negotiated stipulation, the court cited caselaw indicating that a voluntary stipulation in an equitable settlement should only reluctantly be altered. Relying on those principles, the court deferred appellate review of whether a substantial change of circumstances had occurred, specifically observing that Elaine Zacrep had testified she was "just barely" able to meet expenses, that the district court had not made findings on the reasonableness of John Zacrep's submitted expenses, that the court had not made findings on John Zacrep's ability to pay maintenance, and that the order contained no findings demonstrating consideration of the fact that the permanent maintenance was the result of the Zacreps' voluntary stipulation dissolving the marriage.

On remand, the district court did not specifically address the negotiated stipulation providing for spousal maintenance until death or remarriage. The court specifically found that John Zacrep had sufficient funds to pay $525.73 per month, but that Elaine Zacrep had sufficient resources to meet her needs without spousal maintenance. The court again ordered that the maintenance obligation be terminated retroactive to the date of the 1995 order, but provided that "[s]pousal maintenance shall be reserved and may be reinstated in the event of substantial change of [Elaine Zacrep's] income or needs."


We review a district court's determination of modification of spousal maintenance for an abuse of discretion. Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989). A district court's decision represents an abuse of discretion only if its conclusions are "clearly erroneous[,] * * * against logic and the facts on the record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). The district court's findings on maintenance are also upheld unless "clearly erroneous." Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

The district court must consider two criteria before modifying a maintenance award: (1) whether there has been a substantial change in the parties' circumstances, and (2) whether this change has made 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). Maintenance may be modified if the moving party shows (1) a substantial increase or decrease in the earnings of a party; (2) a substantial increase or decrease in the need of a party; (3) a receipt of assistance; or (4) a change in the cost of living of either party. Minn. Stat. § 518.64, subd. 2(a) (1998).

Elaine Zacrep argues that the district court's decision does not conform to the statutory requirements of Minn. Stat. § 518.64, subd. 2. Specifically, "an award is to be modified only upon clear proof of facts showing a substantial change of circumstances from those existing at the time of the dissolution." Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980) (citing Peterson v. Peterson, 304 Minn. 578, 231 N.W.2d 85 (1975)).

At the time of the dissolution in 1975, Elaine Zacrep's gross income was approximately $7,000 per year. Her income is now approximately $31,000 per year. John Zacrep's income has increased during the same time period from $15,000 per year to at least $48,000 per year in 1995. There is no district court finding, nor does the record support, that this change in income was a substantial change of circumstances. Both Elaine and John Zacrep's increases in income since the decree are nearly proportionate. See Halvorson v. Halvorson, 402 N.W.2d 168, 172 (Minn. App. 1987) (spouses' proportionate increased income alone is not a substantial change in circumstances). The record also demonstrates that Elaine Zacrep subsists on a minimal income, without a car or other amenities.

We again emphasize that the parties' decree was the product of a stipulation. See Prange v. Prange, 437 N.W.2d 69, 70 (Minn. App. 1989) (noting that "[a] court should only reluctantly alter the terms of a stipulation governing maintenance" because it presumably represents the parties' voluntary acquiescence in an equitable settlement) review denied (Minn. May 12, 1989). We further note that Elaine Zacrep's monthly expenses have been maintained at a minimal level to match her income. In addition, the district court's finding that Elaine Zacrep can meet her monthly expenses without maintenance does not, without further evidence, support a modification of John Zacrep's stipulated maintenance obligation. See Plath v. Plath, 393 N.W.2d 401, 403 (Minn. App. 1986) (noting parties may stipulate to a level of maintenance court cannot order). This case was previously remanded to the district court with instructions to make a finding of whether there was a substantial change of circumstances, and the court was apparently unable to make such a finding. For these reasons, we reverse, reinstating John Zacrep's ongoing maintenance obligation together with arrearages.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.