This opinion will be unpublished and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:

Nancy Lee Kretchmer, petitioner,



Robert Alvin Kretchmer,


Filed March 31, 1998

Affirmed in part, reversed in part, and remanded;

motion denied

Klaphake, Judge

Washington County District Court

File No. F3-90-2645

Louis Reidenberg, Andrew M. Silverstein, Ellen E. Barton, Reidenberg & Silverstein, P.L.L.P., 625 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Kathleen M. Picotte Newman, Lynne Michelle Moore, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Ave. South, Bloomington, MN 55431 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Appellant Robert Kretchmer claims the district court erred by (1) not terminating part of his maintenance obligation; (2) restricting his ability to seek a maintenance modification; (3) denying, without a hearing, his custody modification motion; (4) misinterpreting the judgment; and (5) awarding respondent Nancy Kretchmer attorney fees. Respondent seeks attorney fees on appeal.

Because the district court did not abuse its discretion in refusing to terminate part of appellant's maintenance obligation or in making a February 1997 attorney fee award, we affirm on those issues. Because the district court misread parts of the judgment, but did not clearly err in reading other parts, we reverse in part. Because the district court abused its discretion in denying appellant an evidentiary hearing on his motion to modify custody, we remand for a hearing.


1. The amended judgment dissolving the parties' marriage, which incorporated the parties' stipulation, gave respondent a multi-part maintenance award. Regarding respondent's "Level I" spousal maintenance award, the parties agreed that appellant was entitled to a presumption of changed circumstances if respondent found, or did not use good faith to find, "suitable employment." Appellant argues the district court improperly altered the judgment by requiring respondent to be employed for more than a year before allowing a presumption of changed circumstances. We agree. Because the judgment is clear on the circumstances entitling appellant to a presumption of changed circumstances and those circumstances do not require respondent to be employed for more than a year, the district court erred in reading such a provision into the judgment. See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977) (court cannot construe stipulation language that is plain and unambiguous).

Appellant also contends the district court should have terminated his "Level I" maintenance obligation. The decision to modify maintenance is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). To modify maintenance, the moving party must show a substantial change in circumstances that renders the existing award unreasonable and unfair. Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997). Here, even though appellant was entitled to a presumption of changed circumstances, the district court did not necessarily abuse its discretion in denying appellant's motion because the parties also agreed that respondent's mental health would be considered in any modification proceeding. In this regard, the district court found that respondent (1) "suffers a major depressive disorder"; (2) has been in psychiatric care since 1990; (3) requires multiple medications; (4) has been hospitalized several times; (5) has not had a change in her condition since the divorce; (6) continues to require periodic hospitalization and electro-shock therapy; and (7) has a limited work ability because of her condition.[1]

Appellant further claims that the denial of his motion to modify maintenance is defective because it lacks findings on his ability to pay and on respondent's income and expenses. However, the district court found that (1) there was "no significant change" in the parties' financial circumstances except that appellant's obligation to make a "Level II" spousal maintenance payment expired; and (2) appellant, in addition to his motion, made "no other submissions." See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (lack of changed circumstances fatal to maintenance modification; party "cannot complain" if "inadequate documentation" leads, in part, to denial of party's motion). Appellant's claim that evidence on this issue was submitted in his motion for amended findings does not require a reversal. See Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (in considering motion for amended findings, district court cannot consider new evidence). In addition, while appellant cites respondent's deposition as evidence of her income, the income described therein was for temporary work. We therefore conclude that the district court's findings were adequate.

Appellant finally claims the district court erred by failing to consider the judgments against him when determining his ability to pay maintenance. However, the judgments are a result of appellant's refusals to pay his obligations. An obligor is not entitled to a reduced maintenance obligation based on his own conduct that amounts to contempt.

2. Appellant claims the district court erred by ruling that future maintenance modifications would require both a substantial decrease in appellant's earnings or a substantial increase in his need and a substantial increase in respondent's earnings or a substantial decrease in her needs. See Minn. Stat. § 518.64, subd. 2(a) (1996) (allowing modification of maintenance on showing party's substantially increased or decreased needs or expenses rendering existing award unreasonable and unfair). Under the district court's ruling, absent a decrease in appellant's ability to pay maintenance, he is unable to terminate his obligation, even if respondent no longer needs maintenance. This result is inconsistent with a basic premise underlying maintenance. See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (maintenance requires need). We therefore reverse the district court and reimpose the statutory standard for maintenance modification.

3. Appellant argues that the district court abused its discretion in denying his request for an evidentiary hearing on his motion to modify custody. See Minn. Stat. § 518.18(d) (1996) (custody modification requires showing that current environment endangers child); Geibe v. Geibe, 571 N.W.2d 774, 777-78 (Minn. App. 1997) (denial of motion to modify custody discretionary but evidentiary hearings "strongly encouraged" when there are allegations of present endangerment). In deciding whether to hold an evidentiary hearing, the district court must take the moving party's factual allegations as true. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn. 1981).

Appellant's motion is supported by his allegations that the children, who are 13 and 17, want to live with him. See Ross v. Ross, 477 N.W.2d 753, 756 (Minn. App. 1991) ("choice of an older teenager" is an "overwhelming" consideration in determining custody "or in deciding whether he is endangered by preserving the custodial placement he opposes"). Even though the 13-year-old is not an "older teenager," her preference still should be given significant weight. See id. (citing cases giving deference to preference of child as young as 12-1/2). Further, the record details respondent's "major depressive disorder" and multiple hospitalizations, and fails to sustain a viable claim that the children's preferences were manipulated. On this record, we conclude the combination of the apparently unmanipulated childrens' preferences, respondent's disorder, and the impact of the disorder on the children and their environment establish a prima facie case that the present custodial arrangement endangers the children. Therefore, the denial of an evidentiary hearing on appellant's motion to modify custody was an abuse of discretion. We therefore remand for a hearing.

4. The amended judgment requires appellant to make monthly payments until "an amount equal to the December 1, 1991 balance due on the home equity line of credit * * * is paid in full[.]" The parties disagree as to whether appellant must pay the entire balance on the line of credit or only what was due on December 1, 1991. Because either reading is possible, this provision is ambiguous. See Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn. App. 1986). The district court's interpretation of the provision requiring appellant to pay the entire amount is consistent with the following facts: (1) the parties agreed respondent would not be responsible for the line of credit; (2) appellant was contemplating bankruptcy when the amended judgment was entered; (3) the stipulation stated the payment was maintenance; and (4) maintenance, generally, is not dischargeable in bankruptcy. Thus, the district court's reading of the provision is not clearly erroneous. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous); Emerick on Behalf of Howley v. Sanchez, 547 N.W.2d 109, 112 (Minn. App. 1996) (ambiguous judgment's meaning is fact question).

5. Appellant appears to challenge a February 1997 fee award, claiming it does not satisfy Minn. Stat. § 518.14, subd. 1 (1996). However, the award was made under Minn. Stat. § 518.14, subd. 2 (1996). Thus, the requirements of subdivision 1 need not be satisfied.

6. Respondent's motion for attorney fees on appeal is denied.

Affirmed in part, reversed in part, and remanded; motion denied.

[1] Appellant argues the finding that respondent's condition limits her ability to work is unsupported by the record. We disagree. It is undisputed that the doctor who wrote the letter indicating respondent's condition impacts her ability to work has been respondent's psychiatrist since 1990 and that respondent (1) was hospitalized for depression at least four times between July 1996 and February 1997; (2) was able to attend the January 1997 hearing only because she was on furlough from the hospital; and (3) takes four different anti-depressants and undergoes electro-shock therapy.