This opinion will be unpublished and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
C1-99-859

In Re the Marriage of:
Ronald Thomas Haus, petitioner,
Appellant,

vs.

Janis Marie Haus,
Respondent.

Filed November 2, 1999
Affirmed in part and reversed in part
Forsberg, Judge[*]

Polk County District Court
File No. F2-95-1147

Terry Graff, Graff Law Office Incorporated, 1001 Center Avenue, Suite C, Moorhead, MN 56560 (for appellant)

Timothy Wayne McCann, Lindquist, Jeffrey & Jensen, 610 Second Avenue NE, P.O. Box 329, East Grand Forks, MN 56721 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.

U N P U B L I S H E D   O P I N I O N

FORSBERG, Judge

Appellant challenges the district court's order modifying child support and spousal maintenance. Appellant asserts that the district court abused its discretion by (a) refusing to eliminate spousal maintenance; (b) failing to make the modified-maintenance award retroactive to the date the motion for modification was filed; and (c) imposing a cost-of-living adjustment for both child support and spousal maintenance. We affirm in part and reverse in part.

FACTS

The partiesí approximately 27-year marriage was dissolved in 1996. The district court awarded sole physical and legal custody of the parties' two minor children to respondent Janis Marie Haus and ordered appellant Ronald Thomas Haus to pay monthly child support and permanent spousal maintenance. The district court later amended its findings of fact, conclusions of law, and order for judgment to reflect a lower imputed monthly income for appellant, thereby lowering his child support and spousal maintenance obligations.

In August 1998, appellant moved for a reduction of child support and spousal maintenance obligations, as a result of his disabling back and neck injuries. He also moved for a denial of biennial cost-of-living adjustment (COLA) increases to his child support and maintenance obligations. Accordingly, the district court modified both obligations to reflect appellant's change in financial circumstances. The court found that appellant's only source of income was from worker's compensation benefits and determined that appellant's changed financial circumstances justified a significant reduction of child support and spousal maintenance. Further, the court imposed a nominal COLA for both obligations and ordered the modified obligations and COLAs effective January 1, 1999. It is from this order that appellant seeks relief.

D E C I S I O N

I. Termination of Maintenance

The standard of review for a modification of spousal maintenance is whether the district court abused its discretion. Dougherty v. Dougherty, 443 N.W.2d 193, 194 (Minn. App. 1989). This court will reverse only if the district courtís order reflects a "clearly erroneous conclusion that is against logic and the facts on the record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

A district courtís modification of spousal maintenance is to be examined in light of the controlling statutory factors set forth in Minn. Stat. ß 518.64 (1998). In pertinent part, subdivision 2(a) allows modification of maintenance if the moving party demonstrates a substantial change in a partyís income or need, as well as unfairness resulting from that change. Minn. Stat. ß 518.64, subd. 2(a). Additionally, a former spouse should share in the financial burden as if the partiesí marriage were still intact when the burden was not the product of a partyís bad faith. Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn. 1982).

Although the district court reduced appellantís maintenance from $300 to $91, appellant argues that maintenance should be terminated entirely because a disabling injury has rendered him permanently incapable of generating income through employment. Appellant maintains that the district court erred in failing to consider respondentís complete financial picture. Appellant contends that the court should have considered respondentís other sources of "income," namely respondentís student loans, as well as respondentís ability to work.[1]

Appellantís argument that respondentís student loans in excess of tuition should be considered income overlooks the fact that appellant bore the burden of proving an increase in respondentís income. See Meyers v. Meyers, 409 N.W.2d 532, 534 (Minn. App. 1987) (stating moving party must demonstrate change in earnings or need). Although during the January hearing appellant elicited the fact that respondent received student loans that she applied towards her living expenses, he made no attempt to learn the amount of those loans or to establish that her receipt of them represented a substantial change in her income. Thus, appellant has not met his burden of demonstrating an increase in respondentís income.

In addition, contrary to appellantís argument that respondentís willful failure to seek gainful employment is in bad faith, an obligee awarded permanent maintenance is under no obligation to become self-sufficient. See Schroeder v. Schroeder, 405 N.W.2d 267, 269 (Minn. App. 1987) (stating former spouse awarded permanent maintenance is under no duty to work full-time and become self-sufficient); see also Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985) (holding former spouse granted permanent maintenance not obligated to increase earning potential), review denied (Minn. Jan. 31, 1986).

The record supports the courtís determination that neither party could meet their basic needs. The court made specific findings that (a) both parties should bear this burden as if the marriage was still cohesive and (b) the modification was the product of a compromise where neither party was subject to undue hardship. See Giesner, 319 N.W.2d at 720 (stating parties should share financial burden as if marriage still intact); Meyers, 409 N.W.2d at 535 (affirming lower courtís refusal to terminate maintenance even where obligorís expenses exceeded his monthly income). In light of these facts, the district court did not abuse its discretion by refusing to eliminate maintenance entirely.

II. Retroactivity of Modification

Retroactive modification of a maintenance order is within the discretion of a district court. Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn. App. 1999), review denied (Minn. Mar. 30, 1999). Under Minn. Stat. ß 518.64, subd. 2(d), a district court has the discretion to order a modification retroactive during the time in which the petitioning party has a motion pending.

Appellant did not ask for retroactive application of the modified maintenance order at the district court level, but rather raised the issue for the first time in this appeal. Because appellant did not raise the issue below, this court need not consider the question here. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding issues which were not preserved for appeal below are not to be considered by reviewing court).

Although we need not reach the issue, we briefly address it to emphasize our conclusion that the district court acted within its broad discretion by ordering a January 1, 1999, effective date. See Guyer, 587 N.W.2d at 859 (holding two-month discrepancy between filing and commencement was not abuse of discretion).

III. Cost-of-Living Adjustment

On appeal, cost-of-living adjustments (COLAs) are reviewed by an abuse of discretion standard. McClenahan v. Warner, 461 N.W.2d 509, 511 (Minn. App. 1990). However, the district courtís discretion is limited to granting or denying a COLA, not the broad range afforded a court in a child support modification proceeding. Id.

COLAs are governed by statute. See Minn. Stat. ß 518.641 (1998) (describing procedure for implementing COLAs). COLAs are automatic and occur every two years, provided the statutory conditions are met. McClenahan, 461 N.W.2d at 511. The adjustment should not take effect if the obligor can establish an insufficient increase in income. Huizinga v. Huizinga, 529 N.W.2d 512, 514 (Minn. App. 1995) (holding COLA for support obligations mandatory if statute applied unless obligor could demonstrate insufficient increase to support adjustment). It is within the district courtís discretion to waive the COLA requirement if the court expressly finds that, "the obligorís income or occupation does not provide for a cost-of-living increase." Blomgren v. Blomgren, 367 N.W.2d 918, 921 (Minn. App. 1985) (holding statute places burden of demonstrating insufficient increase on obligor).

As appellant notes, the award of a COLA implies that appellantís financial situation has improved. See id. (stating COLA reflects obligorís increase in income in addition to childrenís needs rising with inflation). The district court explicitly found that appellant did not have the ability to pay his existing support obligations and that such obligations were both unreasonable and unfair. The court also found, however, that appellant did not meet his burden in establishing an insufficient income to support the COLAs. These two findings are incongruous. Because the record supports the finding of appellantís inability to meet his expenses, we reverse the award of the COLAs on the child support and maintenance obligations.

Affirmed in part and reversed in part.

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

[1]Appellant argues that the income of minor children should be included in calculating the respondent's income. Appellant cites no authoritative caselaw, and therefore, has waived the issue. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating argument based on mere assertion, unsupported by argument or authority is deemed waived).