This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002)

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-02-897

 

In Re the Marriage of:

 

Michael Patrick Bannon, petitioner,

Respondent,

 

vs.

 

Cynthia Jean Bannon,

Appellant.

 

Filed January 14, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Olmsted County District Court

File No. F8002251

 

 

 

Lawrence D. Downing, Lawrence D. Downing and Associates, 330 Wells Fargo Center, 21 First Avenue S.W., Rochester, MN 55902 (for respondent)

 

George F. Restovich, Bruce K. Piotrowski, George F. Restovich & Associates, 117 East Center Street, Rochester, MN 55904 (for appellant)

 

 

 

Considered and decided by Shumaker, Presiding Judge, Minge, Judge, and Mulally, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Appellant contends that the district court abused its discretion by awarding temporary instead of permanent spousal maintenance and in setting an amount that does not reflect the parties’ standard of living during their marriage.  Because the maintenance award is within the district court’s broad discretion, we affirm.

FACTS

 

The parties were married in 1985.  Before the marriage, appellant Cynthia Jean Bannon earned a B.S. degree and completed a one-year medical technology internship.  Respondent Michael Bannon earned an M.D. degree.

Appellant worked as a medical technologist until November 1988, just before the birth of the parties’ first child.  She then remained at home to raise that child, who is now 13 years old, and two other children, ages 10 and 7.

The parties separated in June 2000, and the dissolution of their marriage commenced in that month.  The parties settled all issues except that of spousal maintenance, as to which they had a contested trial.

After the trial, the district court found that both parties are 43 years old and in good health.  Respondent’s net monthly income after child support is $12,900.  Appellant has no independent income and, since the parties’ separation, “has made no effort to look for employment nor has she sought additional education.”  The value of appellant’s share of the stipulated property division was $239,000, exclusive of the marital homestead.  The amounts received by appellant exceed any amount she would have been able to earn in the job market for the past 13 years.  As a result, appellant has no loss of earnings or retirement benefits.  Additionally, each party will receive about $140,000 when the home is sold.  Appellant’s reasonable monthly budget is $6,500 to $7,000.

The court also found that appellant’s positions as to her housing needs, her lack of mental readiness to return to work, and her monthly budget were unrealistic and unreasonable.  The court awarded spousal maintenance of $4,000 a month for 36 months, and then $2,000 a month for an additional 36 months, after which spousal maintenance shall terminate.

Appellant contends that the district court abused its discretion by imputing income to her, failing to award maintenance that reflected the parties’ standard of living during their marriage, and failing to find that appellant will be self-supporting in the future and able to achieve a standard of living similar to that enjoyed during the marriage.

D E C I S I O N

 

            The standard of review of a district court’s award of spousal maintenance requires us to determine whether the district court abused its discretion.  Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  We will not find an abuse of discretion unless the district court has resolved the matter in a manner that is not supported by the facts in the record.  Rutten v. Rutten,  347 N.W.2d 47, 50 (Minn. 1984). 

1.         Statutory Provision for Spousal Maintenance

Spousal maintenance, defined as an award of “payments from the future income or earnings of one spouse for the support and maintenance of the other,” Minn. Stat. § 518.54, subd. 3 (2002), may be granted when the district court finds that the spouse seeking maintenance

(a)       lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

 

(b)       is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

 

Minn. Stat. § 518.552, subd. 1 (2002).

            The district court concluded that appellant was eligible for spousal maintenance.  Respondent does not challenge that conclusion. 

2.         Spousal Maintenance Amount and Duration - Award in General

To establish the amount and duration of the award after a district court determines that it is appropriate to grant maintenance, the district court must consider and make findings on the statutory factors outlined in Minn. Stat. § 518.552, subd. 2(a) – (h) (2002).  Reinke v. Reinke, 464 N.W.2d 513, 514-15 (Minn. App. 1990) (citing 1988 statutes).  The issue is, in essence, a balancing of the recipient’s need against the obligor’s ability to pay.  Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982).  Spousal maintenance is determined on the facts of each case, and no single fact is dispositive.  Id. at 39.

Using the statutory factors set forth in Minn. Stat. § 518.552, subd. 2(a) – (h), the district court considered each factor as applied to the facts of this case.

Under factor (a),

the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian,

 

Minn. Stat. § 518.552, subd. 2(a), the court found that appellant received one-half of all the marital property in the divorce, approximately $239,000 in assets, not including the family home.  In addition, appellant is expected to receive approximately $140,000 from the sale of the parties’ homestead.  Finally, appellant will receive $2,198 per month in child support.

Under factor (b),

the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting,

 

Minn. Stat. § 518.552, subd. 2(b), the court considered appellant’s age, education, prior work experience, vocational expert evidence on employability, and her current circumstances including, that the children are getting older and will soon be less dependent on her.  The court found that appellant was 43 years old and in good health, with no physical or emotional disabilities.  The court found that appellant could immediately find employment and that she has good potential-earning capacity in the local area health-related fields.  Based on the court-ordered vocational evaluation and appellant’s own testimony, the district court concluded that appellant’s argument that she is not mentally ready to return to work is unrealistic and unreasonable.

Under factor (c), “the standard of living established during the marriage,” Minn. Stat. § 518.552, subd. 2(c), the court considered several factors to determine the standard of living established during the marriage including the kinds of cars the parties’ drove, vacations taken, schools the children attended, country club memberships, if any, and their hobbies and activities.  The court found that the parties did not live extravagantly and lived within their means.  The court noted that appellant’s proposed monthly budget was excessive, unreasonable, and beyond the standard of living established by the parties during the course of the marriage.  The court concluded that a more reasonable budget for appellant would be $6,500 to $7,000 per month.  The court also concluded that this standard of living could continue for appellant given the resources available to her.

Under factor (d),

the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished,

 

Minn. Stat. § 518.552, subd. 2(d), the court found that the marriage lasted 15 years and that appellant did not work outside the home for 13 of those years.   The court concluded, based on the vocational evaluation, that appellant was capable of obtaining work in her field immediately, that her experience and skills were not outmoded, and her earning capacity was not permanently diminished.

Under factor (e),

the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance,

 

Minn. Stat. § 518.552, subd. 2(e), the court found that the amounts received by appellant in the marital-property distribution exceed any amount she would have earned in the job market for 13 years.  The court also found that appellant was fully trained and eligible to work in the field of her choosing.  The court concluded that appellant had no loss of earnings or retirement benefits and that other employment opportunities were not forgone.

            Under factor (f), “the age, and the physical and emotional condition of the spouse seeking maintenance,” Minn. Stat. § 518.552, subd. 2(f), the court found that appellant was 43 years old and in good health, with no physical or emotional disabilities.

Under factor (g), “the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance,” Minn. Stat. § 518.552, subd. 2(g), the court found that respondent had purchased a four-bedroom home and was able to provide maintenance as ordered and continue to meet his own needs while also meeting those of appellant.  The court found that appellant was unable to immediately provide adequate self-support and concluded that appellant was in need of temporary maintenance.

Under factor (h),

the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business,

 

Minn. Stat. § 518.552, subd. 2(h), the court found that appellant had stayed at home, raised the children, and maintained the household.  The court found that the parties lived within the means provided by respondent’s income and that they managed to save during the later years of their marriage.  The record shows that the marital property was divided equally and that respondent’s medical degree was earned prior to the marriage.

The district court made sufficient findings based on evidence in the record to show that the court considered and applied all of the relevant statutory factors to the facts of this case when it ordered temporary spousal maintenance.

3.         Amount - Imputed Income Assertion         

Appellant argues that the district court abused its discretion by improperly imputing income to her.  Appellant argues that the court’s conclusions regarding appellant’s age, education, prior work history, her current circumstances, and readiness to return to work were erroneous and should be reversed because they improperly suggest that income should be imputed to her.  Appellant relies on Carrick to support her argument that the district court could not find the requisite bad-faith underemployment necessary to impute income.  Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997). 

We find appellant’s reliance on Carrick to be misplaced.  In Carrick,we held that a district court

may impute a party’s income to be her earning capacity for the purposes of setting maintenance, if it first finds that the party was underemployed in bad faith.

 

Id.  Here, the district court did not use imputed income as a basis for reducing maintenance.  Rather, the court calculated appellant’s ability to meet her expenses based on the monthly child support, the spousal maintenance, and other assets from marital property.  The court then ordered temporary maintenance in an amount sufficient to meet appellant’s budget when combined with child support and the earnings from her property settlement.  Carrick is distinguishable from this case because in Carrick, the party seeking maintenance was employed. Id. at 409.  In this case, appellant had no employment income to impute.  Because the court did not impute income, we do not need to address whether the court could make a finding that appellant was underemployed in bad faith. 

Based on the court’s determination of reasonable expenses in light of the sources of income available to appellant not including appellant’s income for the first 36 months, the district court did not abuse its discretion with respect to imputation of income because the sources used to determine the award of spousal maintenance did not include a reduction in maintenance for actual or imputed employment income.

4.         Amount - Sufficiency of Award

The award of spousal maintenance is based on the district court finding that the spouse seeking maintenance lacks sufficient property to provide for her reasonable needs or is unable to provide for adequate self-support.  Minn. Stat. § 518.552, subd. 1. Appellant argues that the affluent lifestyle of the parties justifies a monthly living expense of $9,604 for appellant and the parties’ children.  Appellant contends that her budget reflects the lifestyle enjoyed by the parties during their marriage. 

            Respondent argues that the parties enjoyed a comfortable, but not extravagant, lifestyle and that appellant retains the ability to maintain a comfortable standard of living, even without seeking employment, based on her other sources of income.

            The court found that appellant’s proposed budget was excessive, unreasonable, and beyond the standard of living established by the parties during the course of the marriage.  The court reasoned that in order for appellant to continue to enjoy a similar standard of living, she would need reasonable living expenses of $6,500 to $7,000, rather than the higher amount she argued she needed. 

The district court did not abuse its discretion because the amount of the award of spousal maintenance is consistent with the statutory provisions and provides an amount adequate for appellant to maintain the lifestyle enjoyed by the parties during the marriage.

5.         Duration - Award of Temporary Spousal Maintenance

Generally, an award of temporary maintenance contemplates that the recipient will attempt to become self-supporting.  Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986).  The court must apply all the statutory factors and determine whether there are factors present requiring an award of permanent maintenance.  Gales v. Gales, 553 N.W.2d 416, 419-20 (Minn. 1996). 

Appellant argues that the district court abused its discretion when it awarded appellant temporary rather than permanent maintenance.  Appellant contends that the court speculated in its findings and that there is doubt that appellant will be able to become self-supporting.  Appellant relies on Nardini for the proposition that any doubts with respect to duration of spousal maintenance are to be resolved in favor of permanency.  Nardini v. Nardini, 414 N.W.2d 184, 196  (Minn. 1987).

While appellant accurate recites the relevant portion of the holding in Nardini, we find appellant’s reliance on Nardini to be misplaced.  First, Nardini is readily distinguishable from this case because, unlike appellant here, the wife in Nardini was significantly older, possessed a high-school education, and lacked special employment skills of any kind.  An award of permanent maintenance was appropriate in Nardini because, after applying all statutory factors, there was doubt as to the wife’s ability to provide adequate self-support.  Id. at 197, 199 (remanding for trial court to award permanent maintenance in accordance with the statutory factors). 

The doubt that appellant claims exists as to her future ability to become self-supporting arises from her choice not to seek employment or further education.  The evidence shows that she could be employed in her field if she desires.  An uncertainty created through the choice of a party is not the type of doubt contemplated by Nardini .

The district court has broad discretion in spousal maintenance determinations.  Stich, 435 N.W.2d at 53.  When no motion for a new trial is made, as here, appellate review is limited to whether the district court abused its discretion by making findings unsupported by the record or by improperly applying the law.  See Rutten, 347 N.W.2d at 50.  The record shows that appellant’s future employability is clear, that she does not lack sufficient property to provide for her reasonable needs, and she is capable of providing adequate self-support.  Finally, appellant did not provide evidence to the contrary.  The district court thoroughly considered the necessary statutory factors and applied the factors to the unique facts of this case. 

Given our limited scope of review, that the facts support the findings and conclusions of law, and because the factors are not present to support an award of permanent maintenance, the district court did not abuse its discretion in an award of temporary maintenance. 

Because appellant did not show how the district court resolved the matter in a manner that was unsupported by the record, she did not meet her burden of establishing that the district court’s findings are against logic and the facts in the record.  Because the standard of review only asks this court to determine whether the findings of fact sustain the conclusions of law and the judgment, and because appellant does not show otherwise, the district court’s grant of temporary spousal maintenance in the amount ordered is within the district court’s broad discretion and is affirmed.

            Affirmed.