This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In Re the Marriage of:

Richard A. Zona, petitioner,



Patricia P. Zona,


Filed July 29, 1997


Lansing, Judge

Hennepin County District Court

File No. 165877

Edward L. Winer, Susan C. Rhode, Moss & Barnett, P.A., 4800 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402-4129 (for respondent)

Brian L. Sobol, Elizabeth B. Bowling, Katz & Manka, Ltd., 4140 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley,[*] Judge.



In an appeal from a postdecree order, Patricia Zona challenges the denial of her motion for spousal maintenance modification and attorneys' fees. The district court found that although Richard Zona's income increased substantially since the dissolution, the evidence failed to demonstrate that the increase made the original maintenance amount unreasonable and unfair. We affirm.


Richard and Patricia Zona's 28-year marriage was dissolved in 1991 following a contested hearing on spousal maintenance and property distribution. The dissolution decree allowed Patricia Zona $8,200 per month in permanent spousal maintenance. That amount was based on findings that Patricia Zona's reasonable living expenses were $8,200 per month and that she had the capacity to earn $15,000 per year without further training. The property distribution and the permanent spousal maintenance were affirmed on appeal to this court. Zona v. Zona, No. C7-92-423 (Minn. App. Oct. 13, 1992), review denied (Minn. Dec. 15, 1992). A cost of living adjustment increased Patricia Zona's spousal maintenance to $8,766.64 per month effective December 1, 1993.

In July 1996, Patricia Zona moved to modify maintenance. In her supporting affidavit, she stated that her reasonable monthly expenses had increased to $9,647, that she does not have the ability to earn income from employment, and that Richard Zona's income has increased substantially since the dissolution. Richard Zona concedes that his income has increased substantially and does not dispute that he has the financial ability to pay an increased maintenance award. But he disputes that his increased income makes the original spousal maintenance unreasonable or unfair.

The family court referee found that Patricia Zona's reasonable needs had increased to $8,900 per month, but that the increase would be met by implementation of the 1995 cost of living adjustment and by the dividends from the stock that Patricia Zona received in 1996. The referee found that Patricia Zona had not shown that her earning capacity has decreased since the dissolution. The referee also denied attorneys' fees. The district court affirmed the referee's order, and this appeal followed.



The decision to modify maintenance is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Maintenance awards are not altered on appeal unless the district court abused its wide discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Modification is warranted if there is a showing of substantially increased or decreased earnings of a party or substantially increased or decreased need of a party, which make the terms of the prior order unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996). But an increase in the ex-spouse's income alone, absent a showing that the prior award is unreasonable and unfair, does not constitute sufficient grounds to modify maintenance. See Cisek v. Cisek, 409 N.W.2d 233, 236 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987).

Patricia Zona argues that the increase in Richard Zona's income makes the original maintenance award unreasonable and unfair in view of her increased needs and inability to rehabilitate. Since entry of the decree Patricia Zona has sold the marital home for $385,000 and built a new home at a cost of $395,000 for the stated purpose of reducing maintenance and tax costs. But she lists an overall increase in expenses in other categories. She points to food costs, which she estimates have increased from $500 to $850 per month. Patricia Zona also lists new expenses of $300 per month for a legal adviser and $200 per month for a financial adviser. She states that her liquid assets have been depleted by $27,000 for attorneys' fees from her first appeal and over $50,000 in gifts to her adult children. She estimated her 1995 investment income of $14,384 would not increase in 1996. Richard Zona disputes that investment income will remain constant, pointing to $254,000 in stock that Patricia Zona received in 1996. Patricia Zona contends that 75% of the stock proceeds were used to finance her new home. Patricia Zona estimates that her monthly income is $7,200.

The district court found that Patricia Zona's reasonable needs have increased to approximately $8,900 per month rather than to $9,647 per month as she has claimed. The district court discounted the claimed increase in food expense as excessive and disallowed other unsubstantiated expenses. The district court properly rejected the claimed increases which were undocumented and excessive, and the court's finding on Patricia Zona's current reasonable needs was not clearly erroneous. See Kottke v. Kottke, 353 N.W.2d 633, 635 (Minn. App. 1984) (findings of fact on spousal maintenance must be upheld unless they are clearly erroneous), review denied (Minn. Dec. 20, 1984).

The district court estimated Patricia Zona's annual disposable income after taxes to be $106,142. The district court also noted that Patricia Zona expressed her intent to use part of the proceeds from the sale of the stock she received in 1996 to pay $160,000 toward the purchase of her new home, but did not disclose the disposition of the approximately $160,000 in net sale proceeds from the marital homestead. Patricia Zona argues that she should be allowed to reinvest the income from her property rather than use it to meet living expenses. Courts normally do not expect spouses to invade the principal of their investment to satisfy monthly financial needs. Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985). But the court is required to take into account income which may be generated from the recipient spouse's property when calculating spousal maintenance. Rask v. Rask, 445 N.W.2d 849, 853-54 (Minn. App. 1989). Failure to present a complete picture of financial circumstances has been used as a basis to deny a modification motion. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).

In determining Patricia Zona's resources, the district court took into account a $15,000 annual earning capacity litigated and decided by the original dissolution decree. Patricia Zona did not demonstrate any change in capacity or health since the dissolution and she provided no evidence of an attempt to obtain a paid position. Cf. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992) (rejecting obligor's argument that obligee deliberately failed to rehabilitate when record showed obligee pursued various sales and self-employment positions), review denied (Minn. Mar. 19, 1992). Patricia Zona argues that she has no duty to rehabilitate because she has never been employed outside the home and has only a high school education with two years of college. But the issue of whether earnings from employment should be imputed to Patricia Zona was decided in the first appeal and can not be redetermined in a modification motion. See Brezinka v. Bystrom Bros., 403 N.W.2d 841, 843 (Minn. 1987) (under law of the case doctrine, issues determined on first appeal will not be relitigated in a second appeal).


In a dissolution case, the district court shall award attorneys' fees when necessary to enable a party to participate in the proceeding, provided that the other party has the means to pay them. Minn. Stat. § 518.14, subd. 1 (1996). In this case, the district court did not abuse its broad discretion in determining that appellant has sufficient resources from which to pay her own attorneys' fees. See Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977) (district court has broad discretion in awarding attorneys' fees, and its decision will not be overturned absent an abuse of discretion). We decline to award attorneys' fees on appeal.


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