This opinion will be unpublished and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:

Robert J. Wetterberg, petitioner,



Mary E. Wetterberg,


Filed February 24, 1998

Affirmed in part, reversed in part, and remanded;

motion for attorney fees on appeal denied

Klaphake, Judge

Concurring specially, Huspeni, Judge

Concurring specially, Harten, Judge

Mower County District Court

File No. FX-90-986

Doris C. McKinnis, 1012 Grain Exchange Building, Minneapolis, MN 55415 (for Appellant)

Catherine Furness, Premier Bank Building, P.O. Box 603, Owatonna, MN 55060 (for Respondent)

Considered and decided by Harten, Presiding Judge, Huspeni, Judge, and Klaphake, Judge.



Robert Wetterberg appeals from a district court order denying his motion to decrease or terminate his permanent spousal maintenance obligation and denying his request to require respondent Mary Wetterberg to complete a vocational assessment or evaluation. Because the clear and unambiguous language of the stipulated judgment and decree contemplated a review of the amount of permanent maintenance after five years, we reverse and remand for a de novo evidentiary hearing on that issue. Because the district court did not abuse its discretion, we affirm its refusal to require respondent to complete a vocational evaluation.



Appellant argues that the district court erred by not conducting a de novo review of the maintenance award. Rather, the district court treated appellant's motion to decrease or terminate maintenance as one for modification of an existing award under Minn. Stat. § 518.64 (1996). The district court's analysis, however, ignores the plain language of the stipulated judgment and decree.

In general, a trial court should defer to a stipulation entered into by the parties. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). In deciding whether to grant a request to alter the terms of a stipulation, a trial court should exercise its discretion "carefully" and "reluctantly." Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997). Conversely, when a request to enforce the terms of a stipulation that provides for future review of a maintenance award is before the court, the court should enforce the stipulation unless good reasons exist to do otherwise. See Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989) (stipulated maintenance provision provided for review of maintenance after eight years and also provided that bankruptcy discharge of any debt assumed by obligor constituted grounds for modifying award).

In this case, when the parties were divorced in 1991, they entered into the following stipulation regarding maintenance:

[Appellant] shall pay to [r]espondent the sum of $1,000.00 per month as and for permanent spousal maintenance commencing July 1, 1991 and which shall continue on the 1st day of each month thereafter. Either party may request the Court upon motion to review the amount of [appellant's] maintenance obligation at the end of five years from the date of the Judgment and Decree being issued.

(Emphasis added.) This language cannot be read as a five-year waiver of the right to seek modification. See Beck, 566 N.W.2d at 762 (effective waiver must contain both contractual waiver of statutory right to seek modification and express language divesting trial court of jurisdiction to entertain such motion). Rather, this language clearly and unambiguously allows for a de novo review of the amount of maintenance after five years; any other interpretation would render the provision meaningless.

Because this language clearly and unambiguously authorizes review of the amount of maintenance after five years, we reverse and remand for a de novo hearing on that issue. In setting the appropriate amount of permanent maintenance, the court must determine the parties' present needs and resources and consider the statutory factors of Minn. Stat. § 518.552 (1996). Further, because the district court appears to have erred in calculating the parties' incomes and needs, on remand it must make new findings based on all of the evidence presented by the parties.


Appellant challenges the district court's refusal to require respondent to complete a vocational assessment or evaluation. Because this case is being remanded to the district court for a de novo review of the amount of permanent maintenance, a vocational assessment could be relevant. See Minn. Stat. § 518.552, subd. 2 (among factors to consider in determining appropriate amount of maintenance are (a) ability of party seeking maintenance to meet needs independently and (b) time necessary to be educated or trained for appropriate employment); see also Minn. Stat. § 518.64 (on motion to modify maintenance, trial court must apply § 518.552 factors as they exist at time of motion).

However, in this case the district court is in a position to apply these statutory factors without the aid of a vocational assessment, because the record establishes the following: (1) respondent's employer has remained the same since the parties stipulated to an award of permanent maintenance; (2) respondent's hours and job duties have increased since the stipulation; and (3) respondent's salary has almost doubled since the date of the decree. Thus, the district court does not need a vocational assessment to determine the appropriate amount of permanent maintenance. Under these circumstances, the district court did not abuse its discretion in refusing to require respondent to complete such an evaluation.

Nevertheless, in the proper case, a vocational assessment may be relevant to a post-decree motion to modify permanent maintenance. This court has stated that a permanent spousal maintenance recipient is under no "obligation to increase her earning power through occupational retraining." Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985).[1] Thus, a permanent maintenance recipient is not automatically penalized by the loss of permanent maintenance if her income increases over time. Borchert v. Borchert, 391 N.W.2d 74, 76 (Minn. App. 1986). Nor can an obligor successfully move to terminate or reduce permanent maintenance based solely on a recipient's new employment. Schroeder v. Schroeder, 405 N.W.2d 267, 269 (Minn. App. 1987); Halverson v. Halverson, 402 N.W.2d 168, 172 (Minn. App. 1987). It does not necessarily follow, however, that a district court is precluded from considering a permanent maintenance recipient's abilities, whether those abilities have been demonstrated and realized or whether those abilities are, with a little effort, easily attainable.

Rather, in an appropriate situation, permanent maintenance is subject to modification, possibly to a nominal amount or even to zero. Permanent maintenance is not, as the special concurrence here would have us believe, an entitlement or an award that forever shields a recipient from any assessment of his or her abilities. Contrary to the position taken by the special concurrence, there is not a black and white dichotomy dividing temporary and permanent maintenance. Maintenance should be viewed on a continuum, with temporary on one end, permanent on the other, and various gradations of each that recognize and give credence to the expectations of the parties and the vicissitudes that occur over the course of their lives.[2]

In the end, the "basic consideration is the financial need of the spouse receiving maintenance and the ability to meet that need balanced against the financial condition of the spouse providing the maintenance." Krick v. Krick, 349 N.W.2d 350, 352 (Minn. App. 1984) (citing Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982)). If a recipient lacks the threshold requirement of need, maintenance is inappropriate. Lyon v. Lyon, 439 N.W.2d 18, 20 (Minn. 1989) (initial award of permanent maintenance reversed, where recipient's own independent financial resources sufficient to enable her to meet needs and maintain high standard of living). Thus, a recipient's needs and ability to meet those needs is relevant, whether in the context of an initial award or in the context of a motion for modification.


Respondent moves for an award of attorney fees incurred on appeal under Minn. Stat. § 518.14 (1996) (court may award fees to enable either party to participate in proceedings). Although this court has discretion to award such fees, the party seeking fees must prove an inability to pay his or her own fees and the other party's ability to contribute to those fees. Solon v. Solon, 255 N.W.2d 395, 397 (Minn. 1977); Emerick v. Sanchez, 547 N.W.2d 109, 113 (Minn. App. 1996). Respondent has offered little documentation to support her fees request. In addition, this appeal is not frivolous. See Gales v. Gales, 553 N.W.2d 416, 423 (Minn. 1996) (denying request for fees on appeal when appeal neither frivolous nor asserted in bad faith). Therefore, we decline to award respondent fees.

The district court's denial of appellant's request for a vocational evaluation is affirmed, but its denial of his motion to review the amount of permanent spousal maintenance is reversed and the matter is remanded for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded; motion for attorney fees on appeal denied.

HUSPENI, Judge (concurring specially)

I agree that the parties' stipulation requires a de novo review of the level of maintenance. Therefore, I concur in remanding that issue. I write separately to express my concern with the majority's determination that the district court "did not abuse its discretion in refusing to require [a vocational assessment]" for respondent. That determination recognizes that the court, indeed, had discretion to exercise. I submit it had none. Notably, the parties' stipulation provided for a review of the amount of permanent maintenance but was silent regarding a review of the type of maintenance, i.e., permanent or rehabilitative. Further, in a case involving permanent maintenance, what purpose would be served by a vocational assessment? While an assessment might be appropriate and of assistance to the parties and the court in initially establishing a maintenance award, its value in a post-decree motion to modify permanent maintenance is more than elusive; it is nil. Could a trial court use this post-decree assessment to order the recipient to rehabilitate to the level predicted by the assessment? To punish the recipient of permanent maintenance for not rehabilitating? To impute to the recipient of permanent maintenance a level of income that could have been attained through reasonable efforts to rehabilitate? I am aware of no authority supporting any of these proposals.

The inescapable conclusion, it seems to me, is that while an award of rehabilitative maintenance is accompanied by the expectation and requirement that rehabilitation will occur, an award of permanent maintenance carries with it no such expectation or requirement. Certainly, there will be happy instances where rehabilitation does occur, but in those instances both parties will be in a position to benefit. That scenario, however, is dramatically different from one in which a recipient of permanent maintenance is required to submit to an evaluation designed to assess the probability and extent of rehabilitation.

Further, I take from the case law a message somewhat different from that expressed by the majority. In Sand, the court was required to answer the question: "[whether] the trial court committed reversible error when it concluded that occupational rehabilitation was required [of a permanent maintenance obligee]." Sand v. Sand, 379 N.W.2d 119, 121 (Minn. App. 1985), review denied (Minn. Jan. 31, 1996). The Sand court answered that question "yes." Id. at 124. I find it difficult to categorize the answer as "dicta."

I believe two additional cases merit mention. In Eckholm v. Eckholm, 368 N.W.2d 386 (Minn. App. 1985), this court remanded a motion to terminate permanent maintenance in order to permit the trial court to "determine the likelihood of successful vocational rehabilitation and the amount of time such rehabilitation is likely to take." Id. at 390. The Eckholm court, however, did not have before it the question of whether a recipient of permanent maintenance had any duty to rehabilitate. Because that question was not answered in that case, the Sand ruling does not conflict with Eckholm.

Finally, a recent Minnesota Supreme Court case addressing vocational rehabilitation does nothing to undermine the continuing validity of Sand. In Hecker v. Hecker, 568 N.W.2d 705 (Minn. 1997), the court addressed and affirmed the granting of a maintenance recipient's post-decree motion to transform rehabilitative maintenance into permanent maintenance. Id. at 709-10. In establishing an award of permanent maintenance where maintenance had previously been rehabilitative, the trial court in Hecker received testimony of a vocational expert and did not overlook the recipient's deliberate failure to attempt rehabilitation. Id. at 710. The court imputed income to the recipient at a level which, according to the vocational expert's testimony, would have been produced by reasonable efforts to rehabilitate. Id. Then, in nearly Solomonic innovativeness, the trial court awarded permanent maintenance in an amount that closed the gap between recipient's imputed income and her needs. Id. The supreme court affirmed the award. Id. Testimony of the vocational expert was properly received and considered in Hecker because that case involved an initial award of rehabilitative maintenance. I see no support in Hecker for granting discretion to the trial court to order a vocational assessment or to receive a vocational expert's testimony in cases involving permanent maintenance.

HARTEN, Judge (concurring specially).

I concur in the result, which I understand to be as follows: (1) the case will be remanded to the district court for a de novo evidentiary hearing on the amount of maintenance; (2) the district court did not err in refusing to order a vocational assessment; and (3) respondent's request for an award of appellate attorney fees is denied.

[1] To the extent that this statement was not necessary to the decision in Sand, it should be considered dicta.

[2] Historically, maintenance may have been compensatory. Under Minn. Stat. § 518.552, subd. 3, however, "[w]here there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification." Under these circumstances, judicial inquiry into the ability of an obligee to self-provide is not foreclosed.