This opinion will be unpublished and

may not be cited except as provided by

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




Sheldon V. Brooks, petitioner,



Delores W. Brooks,


Filed March 31, 1998


Huspeni, Judge

Hennepin County District Court

File No. 85347

Robert H. Zalk, Jennifer L. Wood, Zalk & Eayrs, P.A., 5861 Cedar Lake Road, Minneapolis, MN 55416 (for appellant)

Becky Toevs Rooney, 510 Marquette Avenue, Suite 700, Minneapolis, MN 55402 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Schumacher, Judge, and

Mansur, Judge.[*]



Appellant Sheldon V. Brooks challenges the trial court's order modifying and continuing his obligation of spousal maintenance, arguing respondent Delores W. Brooks has failed to demonstrate that a substantial change in circumstances has occurred or that the original award was unreasonable and unfair. Because the trial court did not abuse its discretion in deciding as it did, we affirm.


At the time the parties' fourteen-year marriage was dissolved in 1981, appellant was 60 years old and respondent was 52 years old.[1] Throughout the marriage, respondent was not employed outside the home. Pursuant to a stipulated dissolution judgment, appellant was to pay "as and for permanent maintenance, the sum of $5,000 per month for 15 years or until respondent's death, which ever occurs first." Prior to the expiration of the 15-year term, respondent moved to have maintenance continue until her remarriage or death, and to increase the amount to $5,167 per month. Both parties submitted memoranda detailing the lifestyle they had enjoyed while married.

The referee recommended granting respondent's request for permanent spousal maintenance, based upon her age, lack of employment, lack of employable skills, and the duration of the marriage. The referee also noted that a substantial change in circumstances had occurred in view of the 79% increase in the cost-of-living index, and the increase of respondent's needs. The referee concluded that termination of appellant's spousal maintenance obligation would be unreasonable and unfair, and that appellant should pay permanent spousal maintenance in the amount of $3,800 per month. The trial court affirmed the referee's decision.


A trial court is afforded broad discretion in deciding matters relating to spousal maintenance. Sand v. Sand, 379 N.W.2d 119, 120 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986). This court will not find an abuse of discretion unless the trial court's determination is clearly erroneous and against both logic and the facts in the record. Id. Thus, our standard of review is extremely narrow.

A court must find that there has been a significant change in the parties' circumstances and that the change renders the original decree unreasonable and unfair before the court can extend a temporary maintenance award or award permanent maintenance.

Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992); Minn. Stat. § 518.64, subd. 2 (1996). If a spouse is unable to become self-sufficient under a temporary maintenance award, an award of permanent maintenance is required. Karg v. Karg, 418 N.W.2d 198, 202 (Minn. App. 1988).

Appellant claims that the trial court erred in awarding respondent permanent maintenance. We disagree. The trial court, in determining that a substantial change in circumstances had occurred, concluded that respondent would not become self-sufficient in the future. In so deciding, the court took into account respondent's age, her inability to get a job, her health, her increased living expenses, the 79% increase in the cost-of-living, and appellant's ability to pay maintenance.[2] All of these factors taken together constitute a substantial change in circumstances.

The statute at issue in this case places a dual burden, however, on the party seeking modification. Not only must a substantial change in circumstances exist, but respondent must show that the substantial change renders the original award unreasonable and unfair. Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

Appellant, arguing that the trial court must defer to the stipulated agreement reached by the parties, states that $5,000 per month for 15 years was both reasonable and fair because it represented the parties' "voluntary acquiescence in an equitable settlement." Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997). Appellant relies on Beck to support his argument that, because the stipulation factored in the increased cost-of-living adjustment, it was neither unreasonable nor unfair to hold the parties to their original agreement. Id. at 726. We find appellant's reliance on Beck to be misplaced. In Beck, the question of whether to include a cost-of-living adjustment in the parties' maintenance stipulation had been thoroughly discussed, the parties could not agree, and no cost-of-living adjustment was included. The supreme court, in reversing the lower court determinations, rejected cost-of-living as an appropriate basis for a later modification of maintenance. Id. at 726.

In this case, however, there is no record of prestipulation discussions. Nor is there any indication of why the word "permanent" occurs in the same sentence that limits maintenance payments to 15 years. The referee hearing the modification motion found that, at the time of the judgment, respondent would have been entitled to permanent maintenance as a result of her age, lack of employment, and duration of the marriage. The use of the word "permanent" in the original judgment could very well have left respondent with the expectation that she would be able to continue to receive support at the end of the 15-year term. Unlike Beck, the terms of the stipulated decree in this case were not clear.

While the presence of a stipulation is an important consideration in restraining the court's authority, it is not controlling. Cisek v. Cisek, 409 N.W.2d 233, 237 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987) (citation omitted). Rather, stipulations determine the baseline circumstances against which claims of substantial change are evaluated in order to determine whether the substantial change has rendered the original judgment unfair. Hecker, 568 N.W.2d 709. In this case, the trial court's determination of unfairness is supported by the record.

Next, appellant claims that the trial court's findings of fact with regard to respondent's living expenses are clearly erroneous. Since trial courts are in the best position to judge the credibility of witnesses, their decisions on factual matters will not be reversed unless they are clearly erroneous. Thorud v. Commissioner of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984). It is well settled that judging the credibility of witnesses and the weight given to their testimony rests within the province of the trial court. General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).

Here, the trial court chose to give credit to respondent's testimony with respect to the parties' marital lifestyle and her current monthly needs. Respondent submitted tax forms, a monthly budget, a financial plan conducted by a CPA, and two sworn affidavits detailing the lifestyle she and appellant enjoyed while married. Appellant's offer of a plausible alternative explanation of the parties' marital lifestyle did not compel the trial court to accept this explanation. Nor can this court, given its narrow standard of review, second-guess the trial court's credibility judgments.

Appellant argues alternatively that the trial court erred in finding that respondent's current needs were reasonable in light of the standard of living she enjoyed while the couple was married. Spousal support, however, is not simply

that which will supply [one party] with the bare necessities of life, but such a sum as will keep her in the situation and condition in which [the other party's] means entitle her to live.

Arundel v. Arundel, 281 N.W.2d 663, 666-67 (Minn. 1979). The record reveals that during their marriage the couple had three homes and two boats, belonged to private clubs, and traveled extensively. Finally, the award of $3,800 per month in permanent spousal maintenance is substantially lower than the temporary monthly award, representing, no doubt, the trial court's consideration of respondent's successful investment of assets awarded to her at the dissolution and the income she received from those assets.

The trial court did not abuse its discretion in awarding respondent permanent spousal maintenance in the amount of $3,800 per month.


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

[1] When the maintenance modification motion was heard, respondent was 67 and appellant was 76.

[2] Appellant does not dispute the fact that he has the ability to pay the amount requested by respondent. Nevertheless, appellant's ability to pay, in and of itself, does not constitute a significant change in circumstances. Kaiser v. Kaiser, 290 Minn. 173, 182, 186 N.W.2d 678, 684 (1971).