This opinion will be unpublished and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 E. Oothoudt, petitioner,



Vivan A. Oothoudt,


Filed August 18, 1998

Reversed and remanded

Shumaker, Judge

Douglas County District Court

File No. FO862248

Susan R. Anderson, Swenson Lervick Syverson Anderson Trosvig Jacobson, P.A., 710 Broadway, P.O. Box 787, Alexandria, MN 56308 (for appellant)

Paul R. Johnson, Tillit, McCarten Johnson & Haseman, Ltd., 801 Broadway, P.O. Box 188, Alexandria, MN 56308 (for respondent)

Considered and decided by Amundson, Presiding Judge, Shumaker, Judge, and Schultz, Judge.[*]



After his retirement, appellant moved to terminate his maintenance obligation on the ground that his pension was awarded to him as property and could not be considered as income or earnings available for spousal maintenance. The district court denied the motion. We reverse and remand.


In their marriage dissolution in 1987, appellant Robert Oothoudt was awarded his pension and certain land and respondent Vivian Oothoudt was awarded permanent maintenance and an interest in appellant's pension. Later, appellant conveyed to respondent his land in exchange for her release of her interest in his pension.

After appellant retired, he derived his income from social security and his pension. Because his expenses exceeded his social security income, he moved to terminate his maintenance obligation. He argued that his pension had been awarded to him as property and that it could not be considered as a source of income or earnings upon which a spousal maintenance award could be based. The district court denied appellant's motion and he brought this appeal.


The modification of spousal maintenance is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Maintenance modification requires the moving party to show a substantial change in circumstances that renders the existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (Supp. 1997); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). Maintenance-related findings of fact are not set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989); see Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

The district court found that appellant's combined social security and pension income provide appellant with monthly cash receipts "of only $150.00 less than the amount he received when he was working," and concluded that appellant's earnings had not substantially decreased. "Maintenance" is paid "from the future income or earnings" of the obligor for the support and maintenance of the recipient. Minn. Stat. § 518.54, subd. 3 (1996) (emphasis added). While a pension can be either property or income, it cannot be both simultaneously. See Minn. Stat. § 518.54, subds. 5, 6 (1996) ("marital property" includes "vested public or private pension plan benefits or rights" while "income" includes "pension and disability payments") (respectively); Walker v. Walker, 553 N.W.2d 90, 94 (Minn. App. 1996) ("[p]ension benefits awarded as property in a dissolution cannot be included in the income of a party when determining that party's maintenance obligation"). If a pension is awarded as property, it cannot be used to support a maintenance obligation. Property is not income and to base a maintenance obligation on an obligor's property award would be an inappropriate post-judgment redistribution of property as income. Neubauer v. Neubauer, 433 N.W.2d 456, 461 (Minn. App. 1988), review denied (Minn. Mar, 17, 1989); see Kruschel v. Kruschel, 419 N.W.2d 119, 1222-23 (Minn. App. 1988) (same); Minn. Stat. § 518.64, subd. 2(e), (Supp. 1997) (except for circumstances not present here, "all divisions of real and personal property * * * shall be final").

Here, appellant was awarded his pension as property. Therefore, to the extent the district court based its conclusion of no changed circumstances on husband's "cash receipts" (the combination of his social security and his pension), rather than his income, the district court erred. If appellant's pension is excluded from the analysis, his net monthly income is $1,020; considerably less than the $2,790-$2,800 per month he received when he was working full time. It is also less than his non-maintenance monthly expenses of $1,634. The district court erred in finding that there was no substantial change in appellant's circumstances. E.g., Hellerstedt v. Hellerstedt, 409 N.W.2d 65, 67-68 (Minn. App. 1987) ($1,000 increase in maintenance recipient's income and decrease in obligor's income (from $11,000 to $4,000) were a substantial change in circumstances), review denied (Minn. Sept. 30, 1987).

Absent unreasonableness and unfairness of an existing maintenance award, changed circumstances are inadequate to modify maintenance. Meyers v. Meyers, 409 N.W.2d 532, 534 (Minn. App. 1987). Respondent claims that, if read in context, the district court's ruling is not that there was no substantial change in circumstances, but rather that there was no substantial change in circumstances rendering her existing maintenance award unreasonable and unfair[1]. The crux of her argument is that appellant should use his pension to meet his own monthly expenses and pay her from his social security receipts. She bases her claim on language in Kruschel which states:

[a maintenance obligor's] total financial resources must be considered in evaluating his ability to meet his own needs [and that] [i]f the court determines [the obligor] has the financial resources to meet his own needs and [the recipient] does not, it may order continued maintenance out of [the obligor's] non-pension income.

Kruschel, 419 N.W.2d at 122-23. Maintenance obligors, however, are not required to liquidate their property to meet expenses. See Zagar v. Zagar, 396 N.W.2d 98, 101 (Minn. App. 1986) ("[w]e find no authority to support appellant's suggestion that an award [of maintenance] be preserved based on an expectation that the obligor liquidate assets to make payments"). Were appellant's property in a form other than a pension (e.g., investments or real estate), he would not have to use the principal of the award to pay maintenance. Absent a reason for distinguishing an award of property that happens to be a pension from an award of property that is not a pension, we must apply the general rule here. Thus, appellant's expenses exceed his income, a circumstance that renders the original maintenance obligation unreasonable and unfair. We, therefore, remand to the district court to address the question of what amount of maintenance, if any, is appropriate in these circumstances.

Reversed 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] Respondent cites unpublished opinions to support her claim. Unpublished opinions 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") (emphasis added); Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (stating dangers of mis-citation and unfairness associated with use of unpublished opinions and that while persuasive, "[t]he legislature has unequivocally provided that unpublished opinions are not precedential"), review denied (Minn. Dec. 23, 1996). Further, the unpublished opinions respondent cites are distinguishable.