This opinion will be unpublished and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

C3-99-510

 

 

In Re the Marriage of:

Dorcella Hagen, petitioner,

Respondent,

vs.

Orvie Gene Hagen,

Appellant.

Filed October 5, 1999

Affirmed

Shumaker, Judge

Pope County District Court

File No. F19580

 

 

Robert V. Dalager, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chartered, 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267 (for respondent)

William L. Spooner, Frauenshuh & Spooner, P.A., 113 Washburne Avenue, Paynesville, MN 56362 (for appellant)

 

Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Foley, Judge.[*]

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant-father Orvie Hagen alleges respondent-mother Dorcella Hagen was not entitled to permanent maintenance, that her $500 maintenance award is excessive, and that he should not have been found in contempt of court. We affirm.

FACTS

The stipulated judgment of the parties' marriage dissolution reserved maintenance and awarded joint physical custody of the minor children. Later, the parties agreed to two access schedules for sharing custody of the children. One schedule applied when mother lived in South Dakota and the other took effect if she moved to the area of Cyrus, Minnesota. Mother attempted to move to Cyrus but zoning regulations prohibited her from bringing her mobile home into the city. Instead, she moved to Starbuck, Minnesota, a town nine miles from Cyrus. When she sought to activate the alternative access schedule, father denied access because he contended that mother had not moved to the "Cyrus area." Father also denied access for other times mother was entitled to have the children. Mother moved to have father found in contempt for denying access to the children. She also moved for an award of maintenance. The district court found that father had denied 40 days of access and was, therefore, in contempt of court. The district court also awarded mother $500 permanent monthly maintenance. Father appeals.

 

D E C I S I O N

1. Father challenges the amount and duration of the maintenance award. Absent an abuse of its "wide discretion," a district court's maintenance decision "is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). While Minn. Stat.  518.552 (1998) lists factors to be considered in setting the amount and duration of maintenance, no factor is dispositive and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40.

Father challenges the district court's use of a $1,600 monthly expense figure for mother. Father notes mother initially claimed monthly expenses of $1,055.98, but later alleged her expenses were $1,602.27, without explaining the new figure. The $1,600 figure is not clearly erroneous because it is supported by mother's affidavit claiming expenses of $1,602.27. See Kennedy v. Kennedy, 403 N.W.2d 892, 897 (Minn. App. 1987) (stating appellate courts review evidence in light most favorable to the findings).[1]

Father argues mother's maintenance award should not be permanent. Uncertainty about a maintenance recipient's ability to become self-supporting requires an award of permanent maintenance. Minn. Stat.  518.552, subd. 3. Consistent with the record, the district court found mother's permanent injuries from an automobile accident preclude her from meeting her needs and that mother will not become self-supporting, even with education and training. The district court properly awarded mother permanent maintenance. To the extent father argues permanent maintenance is improper under Gales v. Gales, 553 N.W.2d 416 (Minn. 1996), because this is not an "exceptional case," we reject that argument as taking Gales out of context. See Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997) (explaining Gales).

Father, a self-employed farmer, cites his 1997 tax returns to argue he cannot pay $500 permanent monthly maintenance. As is allowed by caselaw, the district court rejected these claims. See Marx v. Marx, 409 N.W.2d 526, 528 (Minn. App. 1987) (affirming that taxable income may not be reliable indicator of net income); Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984) (noting opportunity of self-employed person to support self but report negligible income). Mother states husband deposited $39,721 in his checking account between January and August 1998, for a projected 1998 gross annual income of $59,581. Also, father uses cash-basis accounting. Cash-basis accounting allows a person to incur expenses in one year while being able to put off receiving any associated income until later (e.g., when commodity prices are better). See Black's Law Dictionary 216 (6th ed. 1990) (defining "cash basis accounting," in part, as an accounting system "which treats as income only cash which is actually received and as expense only cash which is actually paid out"). Here, father's June 1997 financial statement shows he had a net worth of $47,275, including $15,875 in cattle and grains. Additionally, on appeal, father does not seriously contest the finding that he spent $2,787 on himself and the children each month. When an obligor is self-employed, such facts may be considered. See Schelmeske v. Veit, 390 N.W.2d 309 (Minn. App. 1986) (considering cash flow); Vitalis v. Vitalis, 390 N.W.2d 57, 57 (Minn. App. 1985) (considering lifestyle). The district court did not find father's tax-return argument credible and, on this record, we defer to that credibility determination. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).

Father states he "believes" he cannot pay $500 monthly maintenance "for long" without going bankrupt. Given the district court's rejection of father's tax-return-based argument, the record's lack of other clear financial information for father, and the impropriety of using speculation as a basis for a ruling, we will not alter the maintenance award based on father's predictions. See Schreck v. Schreck, 445 N.S.2d 861, 863 (Minn. App. 1989) (refusing to decide maintenance issue where doing so required speculation), review denied (Minn. Nov. 15, 1989). If it becomes necessary, father can move to modify maintenance under Minn. Stat.  518.64 (1998).

The district court found mother had a $400 monthly deficit but awarded her $500 in monthly maintenance. We affirm the award because mother's $1,600 in monthly expenses is, apparently, an estimate of her actual expenses rather than a higher amount which would approximate her marital standard of living. See, e.g., Minn. Stat.  518.552, subds. 1(a) and 2(c) (maintenance to be based, in part, on recipient's marital standard of living).

Father alleges the record does not support the district court's assumption that mother cannot earn income. Because father did not present this theory to the district court, we need not address it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). We note, however, that mother's medical condition renders her earning ability de minimis. Father also alleges mother's maintenance award will leave her with a greater per capita income than himself and the children. The record shows mother needs more income than father and the children and father alleges no prejudice as a result of this fact. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating, to prevail on appeal, appellant must show error and resulting prejudice). Also, error in the findings regarding mother's employment skills is harmless because the district court recognized that mother's medical condition, not her employment skills, limited her earning ability. See Minn. R. Civ. App. P. 61 (harmless error to be ignored).

2. Father challenges the contempt ruling. Whether to hold a person in contempt is discretionary with the district court. Erickson v. Erickson, 385 N.W.2d 301, 304 (Minn. 1986). Because the district court found the term "Cyrus area" ambiguous, father should not have been ruled in contempt for not abiding by the ambiguous provision. See Hopp v. Hopp, 279 Minn. 170, 174, 156 N.W.2d 212, 216 (1968) (stating use of contempt power "require[s]" court's decree to "clearly" define acts to be performed). But the district court also found father in contempt for his "bad faith" in not letting mother have access to the children for a religious convention, and for mother's parents' anniversary, which, under the parties' schedule, mother was entitled to spend with the children and which, under the schedule, "take[s] precedence over routine access."[2] Father does not challenge these findings and the record does not show them to be clearly erroneous. Therefore, we affirm the contempt ruling.

Affirmed.

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

[1] The appendix to mother's brief includes a "Supplemental Affidavit" detailing the $1,602.27 figure. Because that affidavit is not in the district court file, we do not consider it. Minn. R. Civ. App. P. 110.01.

[2] Father's argument on this issue is unclear. If he assumes mother is not entitled to access to the children on the dates in question unless the "Cyrus area" visitation schedule applies, we reject that argument as inconsistent with the judgment. The judgment states access to the children on the days in question here "take[s] precedence over routine access." We also reject it because it would produce nonsensical situations where, for example, father would be precluded from access to the children on Father's Day.