This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
In Re the Marriage of:
LeRoy Keith Storbeck, petitioner,
Denise Christina Storbeck,
Filed September 14, 1999
Affirmed in part and reversed in part; motion denied
Stearns County District Court
File No. F8-91-1140
Kim A. Pennington, JoAnn D. Winkels, Pennington & Lies, P.A., 1111
First Street North, P.O. Box 1756, St. Cloud, MN 56302-1756 (for appellant)
Richard D. Goff, Roslyn J. Beckman, Richard D. Goff & Associates, 3908 IDS
Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)
Considered and decided by Anderson, Presiding Judge, Randall, Judge, and
U N P U B L I S H E D O P I N I O N
On appeal after a third remand in this maintenance-modification proceeding,
appellant LeRoy Storbeck challenges maintenance and the amount of income
imputed to respondent Denise Storbeck. He also alleges the district court
awarded respondent an excessive amount of attorney fees. Respondent seeks
attorney fees on appeal. We affirm in part, reverse in part, and deny
respondent's motion for attorney fees.
The 1985 stipulated judgment dissolving the parties' marriage awarded
respondent monthly maintenance of $750 for 120 months and was based on
appellant's claimed net monthly income. A 1993 child-support order noted
appellant's actual 1985 income exceeded the stipulated amount. In 1995,
respondent sought $3,500 permanent monthly maintenance. The district court
denied the motion, respondent appealed, and this court remanded for findings.
Storbeck v. Storbeck, No. C0-96-904 (Minn. App. Nov. 26, 1996).
The district court then denied respondent's motion again, and respondent
re-appealed. This court concluded the district court did not follow its remand
instructions and, again, remanded for findings. Storbeck v.
Storbeck, No. C5-97-634 (Minn. App. Sept. 2, 1997). In a third appeal,
this court concluded that the district court's findings were still inadequate
and remanded a third time. Storbeck v. Storbeck, No. C7-97-2353
(Minn. App. July 14, 1998). The third remand also directed the district court
to award respondent attorney fees for the third appeal. Id. In
January 1999, the district court (a) found respondent's reasonable monthly
expenses; (b) found respondent's net monthly income by imputing income to her;
(c) awarded respondent $1,000 in permanent monthly maintenance; and (d) awarded
respondent $15,000 in attorney fees. This appeal follows.
D E C I S I O N
Law of the case precludes relitigation of issues that have
been decided and "ordinarily" applies where an appellate court rules on a
"legal issue and has remanded the case to the lower court." Loo v.
Loo, 520 N.W.2d 740, 744, n.1 (Minn. 1994). Noting Storbeck v.
Storbeck, No. C7-97-2353, 1998 WL 389075 (Minn. App. July 14, 1998)
(Storbeck III), affirmed the district court's
finding that respondent failed to make a good-faith effort to rehabilitate,
appellant challenges the district court's refusal to impute full-time income to
respondent. That respondent failed to make a good-faith effort to rehabilitate
allows the district court to impute income to respondent but the
amount to be imputed depends on other factors. See
Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (affirming
propriety of imputing income because of refusal to rehabilitate but
affirming amount imputed because it was what could have been earned with
On remand after Storbeck III, the district court
stated that the amount of income to be imputed to respondent "is affected by
[respondent's] age and her medical condition" despite Storbeck
III's affirmance of the district court's prior implicit finding
that respondent was not credible when she argued that her medical condition
limited her ability to work. Appellant
alleges the district court's latest decision violates the law of the case. We
understand his argument. But, when addressing the amount of income to be
imputed to respondent, the district court found that respondent might not have
enough clients for full-time employment, that appellant's argument assumed
respondent "could charge and collect $55 per hour[,]" and that
"[r]egardless of [respondent's] licensing status" a "realistic approach" was to
assume respondent could work "20 hours per week, 48 weeks per year" and charge
"$45 per hour." Thus, when determining the amount of income to be imputed to
respondent, the district court relied not on respondent's medical condition,
but on estimates of respondent's client base and rate of delinquent payments.
Any error in the district court' statement that respondent's age and medical
condition impacted the income to be imputed to her does not (mercifully) affect
Maintenance modification is a standard discretionary act of a
district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449
(Minn. 1981). Generally, maintenance modification requires the moving party to
show both a substantial change in circumstances and that the change renders the
existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a)
(1998); Hecker, 568 N.W.2d at 709. Maintenance-related findings
of fact are not set aside unless clearly erroneous. McCulloch v.
McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).
Here, the record lacks evidence indicating respondent's expected rate of
delinquent payments and client base would be any different from other
therapists. Therefore, the district court's discounting of these factors is
not supported by the record. Respondent testified that, at the time of the
hearing, no client owed her money. Also, given the district court's estimate
that respondent's tax burden would be about 30% of her gross income and the
findings that respondent can gross $45 per hour and has reasonable monthly
expenses of $3,250, respondent could meet her reasonable monthly expenses by
working less than 25 hours per week. We cannot say this record shows a need
for maintenance, even taking into account trial court discretion.
See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989)
(holding maintenance requires showing of need). We reverse the maintenance
award. But, because of the condition of this record and the length of
these proceedings, we direct the district court to retain jurisdiction over the
issue of maintenance. If, in the future, respondent satisfies the statutory
standard for modifying maintenance, the district court has the power to award
an equitable amount of maintenance for an equitable period of time.
Given our disposition of this issue, we need not address various
maintenance-related issues raised by the parties.
Noting the amount of attorney fees respondent incurred "to
date," the district court awarded respondent $15,000 in attorney fees. But the
portion of the Storbeck III remand addressing
attorney fees was for attorney fees incurred in the Storbeck
III appeal, not for prior proceedings. Storbeck
III, 1998 WL 389075, at *3-*4 (Minn. App. July 14, 1998). Thus,
by awarding fees in light of what has happened "to date," the district court
exceeded the scope of the remand. See Duffey v.
Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (stating district court's
duty on remand is to execute mandate of remanding court "strictly according to
its terms" (citation omitted)). Upon consideration of the record and the
history of this case, we affirm the propriety of awarding fees but modify the
amount to $5,000.
Respondent seeks attorney fees on appeal under "Minn. Stat.
§ 518.14." Although not so stated by respondent, we assume she is seeking
fees under the portion of Minn. Stat. § 518.14, subd. 1 (1998), allowing
awards of need-based fees. See Minn. Stat. § 518.14, subd.
1 (allowing need-based and conduct-based attorney fees). Whether to award fees
on appeal is discretionary with this court. Roehrdanz v.
Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review
denied (Minn. June 21, 1989). On this record, we deny respondent's
request for fees.
Affirmed in part and reversed in part; motion denied.
[*] Retired judge of the district court, serving as judge of the Minnesota
Court of Appeals by appointment pursuant to Minn. Const. art. VI, §
 To the extent respondent argues the district
court did not make such a finding, we reject that argument. The impact of
respondent's medical condition on her ability to work has been a focal point of
her motion to modify maintenance since 1995. The district court's prior orders
note respondent's medical claims but also note she failed to submit any medical
evidence to support her claims and have repeatedly denied respondent's motion
to modify maintenance. If the district court believed respondent's assertions
about her medical condition, this case would have required fewer than four