This opinion will be unpublished and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:

John Robert Kober, petitioner,



Judith Lynn Kober,


Filed October 20, 1998


Shumaker, Judge

Hennepin County District Court

File No. 158243

Maury D. Beaulier, The Beaulier Law Office, 5001 West 80th Street, Suite 745, Bloomington, MN 55437 (for appellant)

William C. Michelson, Marso, Michelson & Harrigan, P.A., 420 Edinborough Corporate Center East, 3300 Edinborough Way, Minneapolis, MN 55435 (for respondent)

Considered and decided by Crippen, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.



Appellant Judith Lynn Kober challenges the trial court's order terminating respondent John Robert Kober's spousal maintenance obligation on grounds that the trial court erroneously interpreted an unambiguous prior order and respondent failed to show the requisite change of circumstances for modification of maintenance. We affirm.


The parties stipulated to the dissolution of their marriage of 21 years. The judgment and decree dated September 13, 1990, incorporated their stipulation and provided that respondent would pay $600 each month as spousal maintenance for three years, "after which time the issue of spousal maintenance shall be reviewed." The stipulation explained the premise for the maintenance duration, reciting that appellant promised to use her best efforts to seek a full-time teaching position or alternative employment with an equivalent wage, and that respondent believed three years would be ample time to accomplish that goal. The stipulation further stated that when appellant "has acquired a full-time career position, her level of income should cause [the] payment of maintenance to cease" and that, if appellant chooses employment "beneath her earning potential," respondent should not be "obligated to maintain [her] at her present standard of living beyond the three (3) year period."

Three years later, respondent moved to terminate his spousal maintenance obligation. Appellant brought no countermotion to extend maintenance or to make it permanent but requested at the hearing that she be allowed three additional years of maintenance.

The referee's recommended order of December 15, 1993, contained findings that teaching appeared not to be a good employment option for appellant, that she should reconsider her aims, and that, while doing so, she would need continued maintenance. The order further indicated that the parties intended that appellant would become fully employed, and that she "asks an additional three years to become full time employed. That request is not unreasonable." The referee denied respondent's motion to terminate maintenance but did not specifically set the duration of maintenance. Respondent sought district court review of the referee's order. The district court affirmed.

Respondent continued to pay maintenance for three and one-half years and then ceased payments without court order in June 1997. He again moved to terminate spousal maintenance in 1998. In her countermotion, appellant opposed the motion to terminate and requested an award of arrearages and attorney fees, but she did not move to extend maintenance or to make it permanent. As part of her opposition to the motion to terminate maintenance, appellant submitted her own affidavit in which she described various medical conditions that prevent her from becoming employed full time.

A family division referee heard the parties' respective motions. In her order of April 3, 1998, the referee found that the "parties in this case did not stipulate to an award of permanent maintenance" and that

Although [appellant] "promised," and was ordered, to either renew her teaching license or obtain sufficient education or training to find full-time employment at a comparable salary, [appellant] has not done either despite six years of what essentially was "rehabilitative" maintenance.

The referee found that appellant had provided no medical support for her contention that health problems limited her ability to work full time,[1] that there had been no proof of any other limitations on appellant's ability to work or to seek further education, and that "[g]iven the current job market, this Court cannot find that the [appellant] has made a serious effort to find full-time employment." The referee then determined that appellant is not entitled to further maintenance.

Appellant alleges two errors resulting from the 1998 order. First, she contends that the 1993 order was unambiguous and unchallenged and that the court in 1998 had no authority to "interpret" it. Second, she argues that the court failed to find the requisite substantial changes in circumstances for a proper modification of maintenance.

With respect to appellant's first argument, the court in 1998 did not "interpret" the 1993 order. The court noted the substance of the prior order but expressly found "that the matter is before the Court for a review, as anticipated by the original terms of the Decree." A trial court's findings of fact in applying a stipulated decree will be upheld on appeal unless they are clearly erroneous. Bone v. Bone, 438 N.W.2d 448, 451 (Minn. App. 1989) (citing Minn. R. Civ. P. 52.01). The court in 1998 recognized that the parties had stipulated to temporary, rehabilitative maintenance; conducted the review required by the original decree; and found that there was no basis for requiring respondent to continue to pay maintenance to appellant. These findings were not clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989) (maintenance-related findings of fact not set aside unless clearly erroneous); Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

As to appellant's second argument, the court in 1998 noted that neither party had alleged a substantial change of circumstances and found that the matter before her was "not a motion to modify the spousal maintenance obligation pursuant to Minn. Stat. § 518.64." This finding was correct. Minn. Stat § 518.64, subd. 2 (Supp. 1997), is invoked through a motion to modify maintenance. Neither party made such a motion here.


[1] In one of her affidavits, appellant requests two weeks to submit medical records in support of her health claims. The referee found that appellant was notified of the hearing in December, 1997, that the hearing did not take place until March, 1998, and that appellant had ample opportunity to obtain medical support before the hearing. The referee did not abuse her discretion in this finding.