This opinion will be unpublished and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:

Sandra Rae Bierne,



David Eugene Bierne,


Filed February 3, 1998

Affirmed in Part and Remanded in Part

Davies, Judge

Mower County District Court

File No. F294182

Jill I. Frieders, O'Brien, Ehrick, Wolf, Deaner & Maus, L.L.P., P.O. Box 968, Rochester, MN 55903-0968 (for respondent)

Lawrence Downing, Kerry A. Truax, Lawrence Downing & Associates, 330 Norwest Center, 21 First Ave. S.W., Rochester, MN 55902 (for appellant)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Holtan, Judge.*


Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.



Appellant David Bierne asks this court to vacate an amended judgment entered in marital dissolution proceedings. Appellant also asks this court to reverse an order reopening the property division of an earlier judgment and ordering appellant to pay guidelines child support, permanent spousal maintenance, and attorney fees. We affirm in part and remand in part.



A July 1997 amended judgment increased appellant's spousal maintenance obligation and property equalization payment and ordered him to pay attorney fees. Appellant argues that the judgment should be vacated because the district court did not direct entry of the judgment. Although a court must direct entry of a judgment, the process for doing so is not fixed. Minn. R. Civ. P. 52.01. In this case, the court may have orally ordered entry of judgment, for the judgment is stamped with the court's seal and is signed by a court officer authorized to enter judgments. We presume regularity in the procedures followed. See Gallagher v. State, 286 Minn. 335, 342, 176 N.W.2d 618, 622 (1970) (on appeal, regularity in court procedures is presumed).


Appellant argues that the district court erred in calculating spousal maintenance and in determining that appellant was delinquent in his payments.

A court may grant maintenance if it finds that the spouse seeking maintenance is unable to provide adequate self-support through appropriate employment or from property. Minn. Stat. § 518.552, subd. 1 (1996). The amount and duration of maintenance depends on the needs of the party seeking maintenance and the ability of the other party to pay. Id., subd. 2 (1996). On appeal, we ask whether the decision to grant maintenance was "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

The record shows that the district court's determination of appellant's income was not clearly erroneous. See Minn. R. Civ. P. 52.01 (findings not set aside unless clearly erroneous). In its May 1994 temporary order, the court determined that appellant's net monthly income was somewhere between $4,690 and $9,218. In his April 1996 motion to reduce spousal maintenance, appellant conceded a monthly income of $7,299. In its April 1997 amended order granting permanent spousal maintenance, the court found that appellant had a net monthly income of $7,584. In light of appellant's past earnings and undiminished earning capacity, we cannot say the court overstated appellant's monthly net income.

Appellant argues that the district court improperly granted respondent permanent spousal maintenance of $2,500 per month. The court based its decision on the length of the marriage, the standard of living attained during the marriage, and appellant's income and earning capacity. The court did not abuse its discretion in determining the amount of maintenance to which respondent is entitled. In addition, permanent maintenance is appropriate here because respondent has not worked full time since 1979 and has minimal professional training. See Nardini v. Nardini, 414 N.W.2d 184, 197-99 (Minn. 1987) (permanent maintenance appropriate when it is uncertain that spouse seeking maintenance will ever become self-supporting).

Appellant also contends that the court erroneously determined that he was delinquent in his maintenance payments. By its April 1997 order, the court held appellant in contempt for failure to pay $32,500 in maintenance. In his April 1996 motion, appellant had conceded that he stopped making maintenance payments in December 1995. The court did not err in finding that appellant was delinquent.


Appellant contends that the court abused its discretion by reopening the property division of the August 1996 judgment on the basis of mutual mistake of fact.

The record reveals, and appellant has acknowledged, that the parties used outdated and inaccurate information in dividing their profit-sharing accounts, resulting in a division that was unfair to respondent. Appellant cannot credibly object to the reopening of a property settlement when incorrect information appellant himself supplied caused the mistakes. Cf. Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (party cannot complain about district court ruling caused by party's failure to produce adequate documentation). The court did not abuse its discretion by reopening the judgment to reform the division of the profit-sharing account. See Minn. Stat. § 518.145, subd. 2(1) (1996) (allowing judgment to be reopened for mistake); Kornberg v. Kornberg, 542 N.W.2d 379, 386 (Minn. 1996) (district court's decision whether to reopen a judgment will not be disturbed absent abuse of discretion).


Appellant argues that, because he had been subsequently granted physical custody of one child, the court abused its discretion by refusing to reduce his monthly child support obligation from the guidelines amount of $1,500 for the two children. Appellant asks this court to remand the issue of child support to the district court with instructions to apply the formula set forth in Hortis v. Hortis, 367 N.W.2d 633, 636 (Minn. App. 1985), and Valento v. Valento, 385 N.W.2d 860, 862 (Minn. App. 1986), review denied (Minn. June 30, 1986). That formula sets the amount of child support to correspond to the amount of custody and "requires a parent to pay guideline child support only for the periods of time that the other parent has custody of the children." Tweeton v. Tweeton, 560 N.W.2d 746, 747 (Minn. App. 1997), review denied (Minn. May 28, 1997).

Appellant should not have been obligated to pay guidelines child support for two children during the period when respondent had physical custody of only one child. The court appears to have erred by failing to reduce appellant's child support obligation after the change in custody. We remand to the district court with instructions to reduce appellant's child support obligation retroactively to the date of appellant's motion to reduce his child support or to an earlier date if the court finds that the conditions provided in Minn. Stat. § 518.64, subd. 2(d) (Supp. 1997), have been met. Because the parties disagree about whether appellant actually made child support payments to respondent following the change in custody, the district court should determine whether appellant must be credited for overpayment of child support.


Appellant contends the district court abused its discretion by denying his April 1996 motion to reduce or modify his spousal maintenance obligation to reflect his payment of respondent's mortgage and insurance premiums. The trial court must have reached "a clearly erroneous conclusion that is against logic and the facts on record" before this court will find an abuse of discretion. Rutten, 347 N.W.2d at 50. While appellant's total payments to respondent have exceeded $60,000 annually, this amount is not unreasonable in light of appellant's past earnings and future earning capacity and respondent's needs. There was no abuse of discretion.

Appellant also argues that the court abused its discretion by failing to rule on his motion for almost one year. Considering the ongoing mediation and the complicated nature of these issues, the delay, although regrettable, may not have been an abuse of discretion. Even if it were, there is no remedy available at this time.


Appellant argues that the district court abused its discretion by awarding attorney fees to respondent. A court shall award attorney fees if those fees are necessary for the good-faith assertion of a party's rights in a marital dissolution proceeding, the party from whom fees are sought has the means to pay them, and the party to whom fees are awarded is otherwise unable to pay them. Minn. Stat. § 518.14, subd. 1 (1996). We will not disturb the district court's decision absent an abuse of discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). Respondent incurred expenses litigating the maintenance and property division issues, and appellant has higher present earnings and earning potential than respondent. The court's decision to award attorney fees did not constitute an abuse of discretion. In light of the fees awarded in the district court, the resources of the parties, the documentation submitted by counsel, and the awards made by this court in other cases, respondent is awarded $3,000 for attorney fees on appeal. Appellant's motion for fees is denied.

We affirm the decision of the district court regarding issues I, II, III, V, and VI. We remand issue IV to the district court with instructions to reduce appellant's child support obligation and to credit appellant for any overpayments.

Affirmed in part and remanded in part.