This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-363

In re the Marriage of:


Troy Allen Sonnenfeld, petitioner,

Appellant,

vs.

Anne Marie Sonnenfeld,

Respondent.

Filed August 24, 1999

Affirmed; Motions Granted in Part and Denied in Part

Parker, Judge[*]

Washington County District Court

File No. F9-95-4631

 

John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)

Susan Danner Olson, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

Appellant Troy Sonnenfeld appeals the district courtís spousal maintenance modification decision and also questions the order of December 21, 1998 that he pay $300 per month on a credit card debt allocated to him in the dissolution judgment. Respondent Anne Marie Sonnenfeld also appeals the maintenance determination, and moves to strike a section of appellantís brief and for attorney fees on appeal. We affirm the district court, grant respondentís motion to strike, and deny her motion for attorney fees.

D E C I S I O N

1. Modification of maintenance

Modification of spousal maintenance falls within the broad discretion of the district court. Rapacke v. Rapacke, 442 N.W.2d 340, 343 (Minn. App. 1989) (citing Mark v. Mark, 248 Minn. 446, 449, 80 N.W.2d 621, 624 (1957)). The district courtís findings regarding maintenance will be upheld unless clearly erroneous. Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

Maintenance may be modified upon "clear proof of * * * a substantial change in circumstances [that] renders modification equitable." Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980). Such circumstances include a substantial increase or decrease in the income of a party, or a substantial increase or decrease in the expenses of a party, either of which makes the terms of the original judgment unreasonable or unfair. Minn. Stat. ß 518.64, subd. 2 (a) (1998). If the court determines that a modification is in order, it then considers the same factors relevant to initially setting maintenance in determining the new amount. Minn. Stat. ß 518.64, subd. 2(c) (1998).

On this record, the district courtís finding that appellantís income had increased, and his expenses had decreased so substantially as to render the judgment unreasonable or unfair is not clearly erroneous. The judge considered the relevant factors in increasing the amount by $250 per month. She then rendered an equitable award given the change in circumstances.

Contrary to appellantís assertion, it was not error to make the order retroactive to August 16, 1998. A maintenance modification may be retroactive to "any period during which the petitioning party has pending a motion for modification." Minn. Stat. ß 518.64, subd. 2(d) (1998). Respondentís August 7, 1998 motion was pending until the court issued the order of December 21, 1998.

The parties have expressed doubt about the modification termination provision. This provision is not now in controversy because the respondent is still enrolled as a student and we decline to address the issue. See Izaak Walton League of Am. Endowment, Inc. v. State Depít of Natural Resources, 312 Minn. 587, 589, 252 N.W.2d 852, 854 (1977) (stating "[t]he existence of a justifiable controversy is prerequisite to adjudication [and] [t]he judicial function does not comprehend the giving of advisory opinions). If it becomes an issue, the district court is in the best position to interpret its own order. See Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131 (1955) (district court has inherent power to interpret an ambiguous judgment).

2. Paying the Credit Card Debt

Appellant argues that the district court impermissibly modified the property distribution with the order that he pay the $2,767 Visa credit card debt (allocated to him in the judgment) in $300 per month installments.

The district court cannot modify a marital property division after the original judgment has been entered and the time for appeal has expired. Erickson v. Erickson, 452 N.W. 253, 255 (Minn. App. 1990). The court may, however, issue orders implementing or enforcing a judgment. Id.

The district courtís order in this case was an attempt to enforce the judgment, rather than a change in the property division. Upon learning that the debt was not being repaid as contemplated by the judgment, the court took measures to ensure that it would be paid in a timely manner. Because respondentís name was on the card and the unpaid debt affected her credit rating, the district court acted equitably.

3. Respondentís Motions

Respondent has moved to strike pages of appellantís appendix that contain federal and state tax tables for 1999. Minn. R. Civ. App. P. 128.04 specifically allows for matters of public record, like the tax tables, to be included in the appendix; however, these particular tax tables are for the wrong year. We therefore grant respondentís motion to strike.

Respondent has moved for attorney fees on appeal. Neither of the parties is well-situated financially to pay attorney fees, and appellant has not contributed unnecessarily to the length of the proceeding. See Minn. Stat. ß 518.14, subd. 1 (1998). Respondent did not comply with the procedural requirements of Minn. Stat. ß 549.211 (1998), and, moreover, appellant did not pursue this appeal merely to "cause unnecessary delay or needless increase in the cost of litigation." Minn. Stat. ß 549.211, subd. 2 (1998). Respondentís motion for attorney fees on appeal is denied.

Affirmed; motions granted in part and denied in part.

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