In re the Marriage of: LeRoy Keith Storbeck, petitioner, Respondent, vs. Denise Christine Storbeck, Appellant. C0-96-904, Court of Appeals Unpublished, November 26, 1996.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-904

In re the Marriage of:

LeRoy Keith Storbeck,

petitioner,

Respondent,

vs.

Denise Christine Storbeck,

Appellant.

Filed November 26, 1996

Affirmed in part, reversed in part, and remanded

Lansing, Judge

Stearns County District Court

File No. F8911140

Kim A. Pennington, Pennington & Lies, P.A., 26 North Sixth Avenue, Suite 300, Post Office Box 1756, St. Cloud, MN 56302 (for Respondent)

Richard D. Goff, Shelly D. Rohr, Goff, Kaplan & Wolf, P.A., 900 Capital Centre, 386 North Wabasha, St. Paul, MN 55102-1308 (for Appellant)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Norton, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

This is an appeal from an order denying a postdissolution motion to adjust retroactively child support and to increase the amount and duration of spousal maintenance. The district court properly denied child support retroactivity but did not make findings on the issue of spousal maintenance that address the required statutory considerations. We affirm the denial of child support and the amount of attorneys' fees, and we reverse and remand the spousal maintenance determination.

FACTS

The stipulated 1985 judgment dissolving the parties' marriage provided that Denise Storbeck would receive custody of the parties' three children, monthly child support, and spousal maintenance for ten years. It set LeRoy Storbeck's maintenance and support obligations based on his claimed net monthly income. In 1993 the district court granted Denise Storbeck's motion for increased support for the remaining minor child. The order included a finding that LeRoy Storbeck's 1985 income was greater than the amount stated in the stipulation.

In 1995 Denise Storbeck brought the current motion. In this appeal she challenges (1) the denial of her request for a $28,000 judgment for the additional support amounts LeRoy Storbeck would have been required to pay from 1985 through 1992 if child support had been calculated on his actual rather than stipulated income, (2) the denial of her request for increased, permanent maintenance, and (3) the amount of attorneys' fees allowed.

D E C I S I O N

Support modifications may be retroactive to a date earlier than the date the motion was served. Minn. Stat. § 518.64, subd. 2(c) (1994). But to qualify for this retroactivity, the moving party must show that it could not serve a motion for reasons in the statute and, when no longer precluded from serving a motion, did so promptly. Id.

As evidenced by exhibits submitted to support Denise Storbeck's prior modification motion, she knew by 1992 that the stipulation inaccurately stated LeRoy Storbeck's income and that this inaccuracy decreased the amount of his support obligation. The parties' children are no longer minors, and the retroactive increase sought is for the period from 1985 to 1992. Because Denise Storbeck did not seek retroactively increased support as part of her 1992 motion and did not bring this motion until 1995, the district court was well within its discretion in ruling that she is not entitled to the retroactive child support increases.

Whether to modify maintenance is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Maintenance modification requires substantially changed circumstances that make the existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (Supp. 1995). Circumstances in which a change may require an analysis of whether the current amount is unfair or unreasonable include substantially increased or decreased earnings and substantially increased or decreased needs. Id.

The district court denied Denise Storbeck's motion for increased permanent maintenance finding that she submitted no evidence showing that LeRoy Storbeck's stipulation was intended to defraud her or the court and therefore that there was insufficient evidence to show that the facts at the time the parties entered the stipulation were different from those on which they bargained. But whether or not LeRoy Storbeck's stipulation on his 1985 income was in bad faith, his 1995 income of $105,000 (estimated gross) is substantially more than his 1985 stipulated income of $24,000 (net).

In addition to the increase in LeRoy Storbeck's income, Denise Storbeck submitted medical evidence demonstrating that she suffers from fibromyalgia, a condition that substantially limits her ability to be employed full time. Although the district court concluded that the medical condition was not a change in circumstances, the court's findings do not adequately explain that conclusion. We remand for the district court to determine whether, in light of the change in LeRoy Storbeck's income and Denise Storbeck's medical condition, the existing maintenance amount and duration is unreasonable and unfair. See Minn. Stat. § 518.64, subd. 2(a)(1) (substantially increased earnings can satisfy changed circumstances requirement); Rydell v. Rydell, 310 N.W.2d 112, 115 (Minn. 1981) (maintenance modification requires substantially changed circumstances and that the changed circumstances make the existing award unreasonable and unfair). See also Minn. Stat. § 518.552, subds. 2, 3 (1994) (addressing amount and duration of maintenance and propriety of permanent maintenance); Gales v. Gales, 553 N.W.2d 416, 418-22 (Minn. 1996) (addressing awards of permanent maintenance).

III

The district court allowed Denise Storbeck $2,500 in attorneys' fees for this motion. The district court addressed the statutory factors for an attorneys' fee award in light of the evidence in the record. The district court has broad discretion in allowing fees, and its order for fees was not an abuse of that discretion. See Minn. Stat. § 518.14, subd. 1 (1994) (listing considerations for attorneys' fee awards); Courey v. Courey, 524 N.W.2d 469, 473 (Minn.App. 1994) (attorneys' fee awards are almost exclusively in the district court's discretion).

Affirmed in part, reversed in part, and remanded.