This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-02-130

 

In re the Marriage of:
Charles Henry Buscher, petitioner,
Appellant,

vs.

Mary Catherine Buscher,
Respondent.

 

Filed July 30, 2002

Reversed; motion denied

Forsberg, Judge*

 

Ramsey County District Court

File No. F28619254

 

 

Kelley R. Lorix, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404-1189 (for appellant)

 

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

 

            Considered and decided by Peterson, Presiding Judge, Schumacher, Judge, and Forsberg, Judge.

 

 

 

U N P U B L I S H E D   O P I N I O N

 

FORSBERG, Judge

 

            Appellant-husband challenges the district court’s refusal to terminate spousal maintenance of $2,500 per month.  Appellant argues that his retirement at 68 and poor health warrants termination.  We find that on this record appellant’s retirement warrants termination of spousal maintenance; therefore, we reverse.

FACTS

 

In June 1987, appellant Charles Buscher and respondent Mary Buscher dissolved their 35-year marriage by a stipulated decree.  Both parties were represented by counsel and agreed that appellant would pay respondent spousal maintenance of $2,500 per month terminating upon respondent’s remarriage or death.[1]  Appellant also agreed to secure his spousal maintenance payments with life insurance and to maintain medical insurance for respondent. 

At the time of the dissolution, appellant was 55 years old and worked as a dentist earning a gross income of $101,000.  Respondent was 61 years old and was an unemployed homemaker, deemed unsuitable “for gainful, productive employment * * * due to her medical problems, limited education, age and lack of transferable skills.”  As contemplated by the decree, however, respondent worked part time to secure additional income and owned a small business.  The parties had one minor child and agreed to place physical custody of their child with respondent.  Appellant later remarried, but respondent did not.

            On January 2, 2001, appellant sold his dental practice, retired, and began receiving $1,618 per month in social security benefits thereafter.  Appellant also stopped paying spousal maintenance in January.  On January 23, 2001, appellant moved for termination of his spousal maintenance and medical and life insurance obligations.  At the time of the motion, appellant was 68 and respondent was 74.  In his affidavit, appellant alleged that he sold his dental practice and retired because he suffers from congestive heart failure and sleep apnea.  He also claimed that, with his decreased income and lack of assets, he could no longer afford to pay spousal maintenance and maintain medical and life insurance for respondent.  Respondent filed a responsive motion seeking a judgment “for all spousal maintenance arrearages” that had accrued by the time of the hearing, verification of appellant’s compliance with his life insurance obligation, and attorney fees. 

In November 2001, the district court denied appellant’s motion to terminate his spousal maintenance and medical and life insurance obligations finding that, although appellant’s income substantially decreased, appellant failed to show how this made the stipulated decree unreasonable and unfair.  The court also (1) ordered appellant to pay respondent $1,000 in attorney fees; (2) awarded appellant a judgment for $27,500 for spousal maintenance arrears;[2] and (3) ordered appellant to provide respondent with verification that he is in compliance with his insurance obligations.  This appeal followed. 

D E C I S I O N

 

I.

 

Appellant argues that the district court abused its discretion by denying his motion to terminate his permanent spousal maintenance obligation.  We review a district court’s maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  For this court to conclude that the district court abused its broad discretion with respect to an award of spousal maintenance, the district court’s fact-findings must be “against logic and the facts on [the] record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted). 

            A court may modify spousal maintenance upon a showing of substantially increased or decreased earnings of a party that make the original judgment and decree unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2000).  A party seeking modification of spousal maintenance has the burden of showing not only that a substantial change in circumstances occurred but also that the change made the previous spousal maintenance decree unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  The terms “unreasonable and unfair” are “strong terms which place upon the claimant a burden of proof more than cursory.”  Giencke v. Haglund, 364 N.W.2d 433, 436 (Minn. App. 1985).

            Absent language in the judgment and decree divesting the district court of jurisdiction, the court retains the authority to determine whether changed circumstances warrant modification.  Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn. App. 2000).  When a stipulation fixing the respective rights and obligations of the parties is central to the original judgment and decree, the district court considering the spousal maintenance modification “should view [the original judgment and decree] as an important element because it represents the parties’ voluntary acquiescence in an equitable settlement.”  Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981).  Although the district court is vested with the broad discretion to determine whether modification is appropriate, the Minnesota Supreme Court has urged courts to “exercise that discretion carefully and only reluctantly alter the terms of a stipulation governing maintenance.”  Id.  (citing Sieber v. Sieber, 258 N.W.2d 754 (Minn. 1977)).  The existence of a stipulation, however, does not prevent a subsequent modification if the parties’ circumstances have materially changed.  Sand v. Sand, 379 N.W.2d 119, 125 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986). 

            Appellant first argues that the district court improperly relied on the parties’ stipulation, which did not provide for modification based on retirement, in denying his motion to terminate spousal maintenance.  In its order, the court quoted the spousal maintenance provision and emphasized the sentence providing for termination of spousal maintenance upon respondent’s remarriage or death.  The court also found that when the parties entered into their stipulation, they “were well within [their] retirement-contemplation years.”  To the extent that the court relied upon the parties’ stipulation to preclude modification of spousal maintenance, such reliance was improper: if the parties had intended these conditions to be the sole grounds for termination, the stipulation should have expressed this intention.  See Loo v. Loo, 520 N.W.2d 740, 745 (Minn. 1994) (stating that courts should not assume that the parties specifically bargained to supplant the statutory modification procedure without a clear expression of intent to do so). 

Appellant next argues that the court disregarded his changed circumstances since the stipulation in 1987, including his retirement, his decreased income, and his poor health.  The district court recognized that appellant’s income had substantially decreased but found that the reduction did not render the stipulation unfair or unreasonable.  On this record, the court abused its discretion by failing to find that appellant’s retirement at the age of 68 coupled with his health problems, his lack of income, and his lack of assets warranted termination of modification. 

At the time of the motion, appellant was 68, retired, in poor health, and received only $1,618 per month in social security benefits.  The record shows that before his retirement appellant’s income had decreased significantly forcing him to cash in his only retirement fund to pay his 1998 income taxes.  The record also demonstrates that appellant’s assets from the marriage dissolution were depleted and that the money he received from selling his practice went to pay his (a) 1999 and 2000 taxes; (b) payroll taxes of his former employees; (c) dental lab expenses; and (d) property settlement to respondent.  Thus, appellant’s circumstances indicate a substantial change since the 1987 stipulation when appellant was a healthy 55-year-old dentist earning an annual gross income of $101,000 with substantial assets.  On this record, appellant has demonstrated that his changed circumstances render the $2,500 spousal maintenance obligation unfair and unreasonable. 

Here, appellant voluntarily retired at the age of 68 and when an obligor voluntarily creates a change in circumstances, the district court should consider the obligor’s motives.  Richards v. Richards, 472 N.W.2d 162, 164 (Minn. App. 1991).  “If the change was made in good faith, the [obligee] should share in the hardship as they would have had the [parties] remained together.”  Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn. 1982).  When an obligee raises a colorable bad-faith claim, an obligor must show that a decision to retire early was not primarily influenced by a specific intent to decrease or terminate maintenance.  Richards, 472 N.W.2d at 165.  In determining bad faith,

the [district] court should consider the obligor’s health and employment history, the availability of and expectations regarding early retirement at the time of the divorce, and the prevailing managerial policies and economic conditions at the time of retirement, together with whatever subjective reasons the obligor may offer.

 

Id.

The district court failed to address the Richards factors and failed to determine whether appellant retired in bad faith.  Application of thefactors demonstrates that appellant, at the age of 68, retired in good faith.  Here, age is critical; appellant has worked as a dentist beyond retirement age and has faithfully paid respondent $2,500 per month in spousal maintenance for 15 years.  There is no evidence in the record to demonstrate that appellant sold his dental practice and retired to evade his spousal maintenance obligations.  Moreover, appellant has congestive heart failure, a degenerative disorder, which contributed to his retirement.  Even without his health problems, however, appellant’s age alone supports good-faith retirement.

Because appellant demonstrated that his retirement was in good faith, the parties are required to bear appellant’s retirement as if they remained together.  See Giesner, 319 N.W.2d at 720 (holding that if change is made in good faith, both parties are required to bear the hardship as if they remained together).  Without spousal maintenance, respondent receives $698.50 per month in social security benefits and her net worth is approximately $210,203, which includes her cash, money market funds, stocks, bonds, mutual funds, and homestead equity.  Here, it is unfair and unreasonable for appellant to continue making monthly spousal maintenance payments of $2,500 when he only earns $1,618 per month and when respondent has sufficient assets to support herself. 

In reversing appellant’s spousal maintenance obligation, we also reverse appellant’s obligation to secure his spousal maintenance with life insurance and appellant’s obligation to maintain health insurance for respondent.  Furthermore, we decline to address appellant’s other arguments because appellant’s changed circumstances, which make the decree unreasonable and unfair, are dispositive of this matter.

II.

A district court has discretion to award attorney fees “against a party who unreasonably contributes to the length or expense” of a dissolution proceeding.  Minn. Stat. § 518.14, subd. 1 (2000).  An award of attorney fees under section 518.14, subdivision 1, “rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.”  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999). 

The court found that the parties were financially able to pay their own attorney fees but also found that because respondent “was forced into legal action to obtain her court ordered spousal maintenance which the Petitioner flagrantly refused to pay despite the court order,” she was entitled to attorney fees.  The court awarded respondent $1,000 in attorney fees based on its conclusion that appellant unreasonably contributed to the length or expense of this proceeding. 

The district court’s reasoning for awarding attorney fees to respondent is flawed.  It is unclear from the record how respondent was forced into legal action to obtain her spousal maintenance.  Spousal maintenance is not permanent and a party can move to modify or terminate maintenance upon a showing of substantially changed circumstances that render the original decree unreasonable and unfair.  Minn. Stat. § 518.64, subds. 1, 2(a) (2000).  Here, appellant has shown that his retirement at the age of 68 warrants termination of maintenance.  Furthermore, there is no evidence in the record to demonstrate that appellant unreasonably contributed to the length or expense of the proceeding.  Because the record does not support the court’s award of attorney fees, we reverse this award. 

III.

Respondent moves the court to strike portions of appellant’s brief that references information not in the record on appeal.  The record on appeal consists of “[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  A reviewing court will strike documents from a party’s brief if they are not a part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d,504 N.W.2d 758 (Minn. 1993). 

Specifically, respondent moves to strike appellant’s reference to (a) dramatic changes in the practice of dentistry, (b) business expenses appellant incurred in 1986, and (c) appellant’s expense of caring for his disabled wife.  Because these materials are not germane to our decision, we deny respondent’s motion. 

            Reversed; motion denied.