This opinion will be unpublished and

may not be cited except as provided by

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




Vallie B. Kriz,

n/k/a Vallie Brewster, petitioner,



James J. Kriz, Jr.,


Filed August 25, 1998

Affirmed in part, reversed in part, and remanded

Schultz, Judge*

Hennepin County District Court

File No. 194230

William F. Forsyth, Kristi Skordahl, Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for appellant)

Raymond M. Lazar, Judy S. Engel, Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402-3397 (for respondent)

Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Schultz, Judge.



Appellant-wife Vallie Brewster alleges the district court (a) set respondent-husband James Kriz's maintenance award at an excessive level; (b) erroneously made maintenance retroactive; and (c) erred in ordering security for maintenance. On appeal, husband seeks attorney fees and asks this court to increase the supersedeas bond. We affirm in part, reverse in part, and remand. We also deny husband's motions.


The amended judgment dissolving the parties' marriage awarded husband $6,500 in permanent monthly maintenance and $1.2 million from a trust, of which wife was a beneficiary. We reversed the trust assets award to husband and remanded for "reevaluation" of maintenance in light of the reversal. Kriz v. Kriz, No. C6-95-1853 (Minn. App. June 4, 1996), review denied (Minn. Aug. 6, 1996) (Kriz I). On remand, the district court set maintenance at $11,500 per month, made the increase effective the month the original award would have been effective, and required wife to secure the award. Wife appeals. Husband seeks attorney fees on appeal and asks this court to increase the supersedeas bond.


Absent an abuse of its "wide discretion" in awarding maintenance, "the trial court's determination is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). An abuse of discretion occurs if the district court makes "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). While Minn. Stat. § 518.552 (1996) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive, and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40. Findings of fact are not set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).[1]

1. The district court did not find wife's reasonable monthly expenses or her ability to pay maintenance. We remand for the district court to make these findings and to reevaluate the amount of the maintenance award in light of those findings.[2] See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (remanding maintenance where district court found parties' incomes but not expenses or payor's ability to pay maintenance).[3]

2. Wife claims the finding of husband's monthly expenses includes excessive housing expenses, that his home should be sold, and that the proceeds should be used to buy husband a smaller home with the remaining proceeds invested. Wife's argument is similar to one she unsuccessfully made in Kriz I, and we will not revisit it. See Minn. R. Civ. App. P. 140.01 (no rehearing in court of appeals); Minnesota Power & Light Co. v. Minnesota Pub. Utils. Comm'n, 342 N.W.2d 324, 327 (Minn. 1983) (issues resolved in first appeal become law of the case and not reexamined in later appeal).

3. Wife alleges the finding of husband's income is low. The finding is within the range testified to by husband's expert, and we will not alter it. See Minn. R. Civ. P. 52.01 (district court findings not set aside unless clearly erroneous); Alstores Realty, Inc. v. State, 286 Minn. 343, 353, 176 N.W.2d 112, 118 (1970) (weight and credibility of testimony, including that of experts, is for the trier of fact).[4]

4. Wife claims the district court erred in making the modified maintenance award "retroactive" to the date of the original judgment. We disagree.

When this court remands with instructions to award maintenance, the award on remand dates back to the time when the trial court erred. * * * To rule otherwise would be to rule that [the recipient] suffered an injury in the original findings and conclusions (the lack of maintenance) for which this court could not grant relief.

Dobrin v. Dobrin, 555 N.W.2d 921, 924 (Minn. App. 1996) (emphasis added), review granted (Minn. Jan. 29, 1997)[5]; see also Minn. Stat. § 518.64, subd. 2(d) (Supp. 1997) (generally, maintenance modification retroactive to date of motion to modify). The emphasized text addresses wife's argument that Dobrin is distinguishable because that maintenance recipient got no maintenance before the order on remand, while here, husband got $6,500 per month.

5. Wife argues that requiring security for the maintenance award was beyond the scope of the remand. A district court must execute the mandate of a remanding court "strictly according to its terms," but, absent specific instructions on a remanded issue, the district court has "broad discretion" to address the issue "in any manner not inconsistent with the remand order." Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988). Because Kriz I did not address security for maintenance and because security for maintenance is part of the maintenance issue remanded, the district court had "broad discretion" to address security for maintenance. See Minn. Stat. § 518.24 (1996) ("[i]n all cases" where maintenance is awarded, court may require sufficient security).

6. Wife claims the district court erred by requiring her to secure husband's maintenance award. Whether to require maintenance to be secured is discretionary with the district court. Walker v. Walker, 553 N.W.2d 90, 96 (Minn. App. 1996). Wife alleges case law allows the securing of maintenance only in "exceptional cases." Even if this is the proper standard for requiring security for maintenance,[6] the length of the marriage (26 years), husband's inability to become self-supporting, his limited work skills and experience, his age (53), and his medical and psychological conditions would allow affirming the security requirement, if wife has the economic ability to provide it. See Arundel, 281 N.W.2d at 667 (factors justifying the securing of maintenance with insurance may include an award of permanent maintenance, the long duration of a marriage, and the recipient spouse's age and lack of marketable skills).

7. Wife claims the district court failed to consider the economic feasibility of requiring her to secure the maintenance award. Absent a finding of wife's reasonable expenses, whether it is economically feasible for her to secure her maintenance obligation cannot be determined. On remand, the district court shall reevaluate the propriety of requiring security for maintenance in light of its findings of wife's reasonable monthly expenses and ability to pay maintenance.

8. Because of our remand for the district court to reevaluate the propriety of security for maintenance and because the bulk of husband's requested increase in the supersedeas bond is for the cost of securing maintenance, we deny his motion to increase the supersedeas bond.

9. Husband's motion for attorney fees on appeal is denied.

Affirmed in part, reversed in part, and remanded.

*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] The parties cite unpublished opinions to support several of their arguments. Unpublished opinions are not precedential and are of limited value in deciding an appeal. See Minn. Stat. § 480A.08, subd. 3(c) (1996) ("[u]npublished opinions of the court of appeals are not precedential"); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of miscitation and unfairness associated with use of unpublished opinions and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential").

[2] To support an argument that this court can find facts on appeal, wife cites Flynn v. Sawyer, 272 N.W.2d 904, 909-10 (Minn. 1978). Flynn is based on In re Trust Known as Great Northern Iron Ore Properties, 308 Minn. 221, 225, 243 N.W.2d 302, 305 (1976), cert. denied, 429 U.S. 1001, 97 S. Ct. 530 (1976). Great Northern is based on the old version of Minn. R. Civ. P. 52.01 which allowed de novo review of documentary evidence. 308 Minn. at 243, 243 N.W.2d at 305. A 1985 amendment to Minn. R. Civ. P. 52.01 overruled Great Northern. First Trust Co. v. Union Depot Place, 476 N.W.2d 178, 181-82 (Minn. App. 1991), review denied (Minn. Dec. 31, 1991). Currently, district court findings, whether based on oral or documentary evidence, are subject to the clearly erroneous standard of review. Minn. R. Civ. P. 52.01. It is improper for this court to find facts. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (court of appeals should not usurp trial court's role by reweighing evidence and finding facts); Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (not within province of appellate courts to determine fact issues on appeal).

[3] Our ruling makes it unnecessary to address wife's arguments that (a) in awarding maintenance on remand, the district court considered the trust assets in violation of Kriz I; (b) husband's maintenance award exceeds his needs; (c) the maintenance award unfairly required wife to decrease her standard of living; and (d) the district court set the maintenance award to achieve a roughly equal division of wife's income.

[4] Husband argues his income cannot be addressed in this appeal because it was addressed in the prior appeal. Kriz I did not address husband's income or earning capacity.

[5] Although the supreme court ultimately reversed in Dobrin, it reversed the portion of this court's original unpublished opinion directing the district court to award maintenance. 569 N.W.2d 199 (Minn. 1997).

[6] We note the "exceptional case" standard for securing maintenance originated under a version of the maintenance statute requiring an "exceptional case" for an award of permanent maintenance. See O'Brien v. O'Brien, 343 N.W.2d 850, 853 (Minn. 1984) ("in the exceptional case, the reasons which justify granting permanent alimony * * * also justify the securing of that alimony") (quoting Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn. 1979)). In 1985, the maintenance statute was amended to require doubts about a maintenance recipient's ability to become self-supporting to be resolved in favor of awarding permanent maintenance. 1985 Minn. Laws ch. 266, § 2 (codified at Minn. Stat. § 518.552, subd. 3 (1996)).