A03-406

Steven Allen Erlemeier, petitioner,

Appellant,

vs.

Susan Eileen Erlemeier,

Respondent.

Filed January 6, 2004

Affirmed in part, reversed in part; motion denied

Willis, Judge

St. Louis County District Court

File No. F8-97-600184

Sally L. Tarnowski, 520 U.S. Bank Place, 130 West Superior Street, Duluth, MN 55802; and Jessica L. Durbin, Johnson, Killen & Seiler, P.A., 800 Wells Fargo Center, 230 West Superior Street, Duluth, MN 55802 (for appellant)

Larry M. Nord, Orman Nord & Spott Law Office, 1301 Miller Trunk Highway, Suite 400, Duluth, MN 55811 (for respondent)

Considered and decided by Klaphake, Presiding Judge; Willis, Judge; and Anderson, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant father contends that the district court abused its discretion (1) by increasing respondent mother’s spousal maintenance rather than reducing or terminating the award to her; (2) by awarding mother the right to initiate contact with the parties’ children; (3) by not establishing a child-support obligation for mother; and (4) by awarding mother need-based attorney fees. Because we conclude that mother failed to show that the previously established maintenance obligation is unfair or unreasonable, we reverse the district court’s award of increased maintenance. And because we conclude that the district court did not abuse its discretion on the other issues, we affirm in part.

FACTS

In October 1998, appellant Steven Erlemeier and respondent Susan Erlemeier, f/k/a Susan Baum, dissolved their 11-year marriage. The district court awarded father physical custody of the parties’ three children, subject to mother’s right of reasonable visitation. The district court also ordered father to pay permanent spousal maintenance to mother, reasoning that uncertainty regarding mother’s bipolar disorder required a permanent award subject to modification. At the time of dissolution, father, who is a physician, had a gross monthly income of approximately $15,850 and living expenses of approximately $4,997. And mother, who had been a dentist, was unemployed and attending nursing school. Because mother had nearly two years of nursing school left to complete, the district court ordered father to pay mother $4,353 per month in spousal maintenance for 20 months and then $1,500 per month.

Mother’s bipolar disorder worsened, however, and she was unable to continue with nursing school. In April 2000, in response to a motion by father, the district court reduced mother’s maintenance to $2,825 per month. The district court also modified mother’s visitation, giving her unsupervised parenting time in a public place “two times a week for two hours per visit” and telephone visitation twice a week. In May 2001, the district court again modified its order, giving mother unsupervised parenting time every other weekend.

In August 2002, mother moved to Louisiana for personal reasons, and, as a result, lost her health-insurance coverage and prescription-drug benefits. She currently works part-time as a salesperson in a pharmacy, where she earns $6 per hour and has gross monthly earnings of $624. Mother stated in an affidavit that she planned to attend nursing school in Louisiana beginning in the autumn of 2003.

In January 2003, father moved the court to terminate mother’s spousal maintenance, to modify mother’s parenting time, and to require mother to pay child support. Mother brought a counter-motion, asking the court to increase her spousal maintenance to $3,500 per month and to award her $2,500 in attorney fees. In addition, mother requested that she be allowed to call the children by telephone and that they be allowed to visit her in Louisiana if they wished to do so. In March 2003, the district court issued an order denying father’s motion. The court increased mother’s spousal maintenance to $3,000 per month and awarded her the parenting time arrangements that she had asked for and attorney fees. This appeal follows.

D E C I S I O N

A party seeking to modify maintenance must show both a substantial change in circumstances and that the change renders the existing maintenance award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (2002); Hecker v. Hecker,568 N.W.2d 705, 709 (Minn. 1997). An appellate court reviews the district court’s decision on a modification motion for an abuse of discretion. Dobrin v. Dobrin,569 N.W.2d 199, 202 (Minn. 1997). An abuse of discretion occurs when the district court resolves the matter in a manner that is “against logic and the facts on [the] record.” Rutten v. Rutten,347 N.W.2d 47, 50 (Minn. 1984).

Here, the district court increased mother’s monthly maintenance from $2,825 to $3,000, reasoning that the deterioration in mother’s circumstances justified the modification and stating that father’s spousal-maintenance obligation may be reviewed upon completion of mother’s schooling.

Father argues that the district court clearly erred in finding that mother had demonstrated a significant change in circumstances rendering the prior maintenance order unreasonable or unfair. The record shows that mother’s monthly budget had increased from $3,318 to $3,935, including approximately $750 in additional medical expenses, since her spousal maintenance was last modified in April 2000. The record shows that the increase in mother’s expenses is attributable to a loss of her medical benefits resulting from her voluntary move to Louisiana. Mother states in an affidavit that, although she knew that she would lose her health-insurance coverage and prescription-drug benefits by moving, she did so to “move forward with [her] life.”

Because mother voluntarily moved to Louisiana knowing of the financial consequences, we determine that mother has failed to meet her burden of proving that the existing order is unreasonable and unfair to her. Thus, we conclude that the district court abused its discretion by increasing mother’s spousal maintenance, and we reverse the increase in spousal maintenance and direct that mother’s spousal maintenance be reestablished at $2,825 monthly.

Father also argues that he demonstrated a significant change in mother’s circumstances that would justify a reduction in or termination of her spousal maintenance. Father asserts that, in contrast to mother’s condition when her spousal maintenance was last modified, her doctor has indicated that she is currently capable of working as a dental hygienist. But despite that ability, father argues that mother refuses to become self-supporting and instead chooses to work parttime at a low-paying job.

Father further contends that mother has a duty to rehabilitate and become self-supporting, citing Youker v. Youker,661 N.W.2d 266 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003). But father’s reliance on Youker is misplaced. Youker specifically applies to rehabilitative maintenance, and, here, mother receives permanent maintenance. Generally, obligees of permanent maintenance do not have a duty to become self-supporting. Cisek v. Cisek,409 N.W.2d 233, 237 (Minn. App. 1987), review denied (Minn. Sept. 18, 1987). While the district court’s original order is not a typical permanent-maintenance award, neither is the award simply rehabilitative maintenance. The court awarded mother maintenance of $1,500 per month and an increased amount during the period that she was in nursing school. Thus, we conclude that mother was awarded permanent maintenance of $1,500 per month and that only the amount of the award exceeding $1,500 is rehabilitative maintenance.

Here, the record shows that mother’s monthly expenses of $3,935 exceed her gross monthly earnings of $624 and that she is not able currently to support herself. We conclude that the district court did not abuse its discretion in declining to reduce or terminate mother’s spousal maintenance.

II.

The district court has broad discretion in deciding parenting-time issues and will not be reversed absent an abuse of that discretion. Olson v. Olson, 534 N.W.2d 547, 550 (Minn. 1995). A district court must fashion parenting time in a manner that will maintain a relationship between a parent and a child. Minn. Stat. § 518.175, subd. 1(a) (2002). The “guiding principle” in custody determinations is the best interests of the children. Durkin v. Hinich, 442 N.W.2d 148, 152 (Minn. 1989). The law “leaves scant if any room for an appellate court to question the trial court’s balancing of best-interests considerations.” Vangsness v. Vangsness, 607 N.W.2d 468, 477 (Minn. App. 2000).

The district court’s order allows mother to have telephone contact with the children “at reasonable times and with reasonable frequency.” Father argues that this was an abuse of discretion, contending that mother should not be able to initiate any contact with the children, based on the recommendations of the children’s counselors. In 2001, two of the children’s counselors recommended suspension of unsupervised visits between mother and the children because of the deterioration in their relationships. One counselor further recommended that phone calls between mother and the children should initially be supervised to ensure that mother does not say anything inappropriate. In 2002, another counselor recommended that all contact, including telephone contact, between mother and the youngest child be suspended because of a history of emotional abuse. In addition, father maintains that the children do not wish to have contact with mother and that they were “thriving” without contact with her.

Here, in accordance with its previous orders, the district court has determined that maintaining a relationship with mother is in the children’s best interests. Because the district court order limited mother’s telephone contact with the children to calls at reasonable times and at reasonable intervals and made any visits to mother subject to the children’s wishes, we conclude that the district court did not abuse its discretion in granting mother parenting time.

III.

A district court has broad discretion to provide for the support of the parties’ children. Putz v. Putz,645 N.W.2d 343, 347 (Minn. 2002); Rutten,347 N.W.2d at 50. A district court abuses its discretion when it sets support in a manner that is against logic and the facts on record or misapplies the law. Putz,645 N.W.2d at 352; Ver Kuilen v. Ver Kuilen,578 N.W.2d 790, 792 (Minn. App. 1998). Generally, a party seeking modification of a child-support order must show a substantial change in circumstances that renders the existing support obligation unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (2002); Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996). But if child support is reserved in the dissolution decree, the court may later establish support without a showing of changed circumstances. Mulroy v. Mulroy, 354 N.W.2d 66, 69 (Minn. App. 1984). A “subsequent establishment of a support obligation is treated as an initial matter rather than a modification of a prior support order.” Anderson v. Anderson, 470 N.W.2d 719, 721 (Minn. App. 1991). Decree language expressly reserving child support indicates the parties’ obvious intention to examine the issue at a later time. Bennyhoff v. Bennyhoff, 406 N.W.2d 92, 94 (Minn. App. 1987).

In the original dissolution judgment, the district court reserved the issue of child support because mother was unemployed. In its March 2003 order, the district court continued reservation of the issue, finding that mother lacked the ability at that time to pay support because of her medical condition, minimal employability, and educational plans.

Father argues that the district court abused its discretion by continuing to reserve child support in its March 2003 order, and, instead, should have ordered mother to pay child support under the Minnesota Child Support Guidelines. He contends that mother’s gross monthly earnings of $624, together with the $3,000 she receives in monthly spousal maintenance, give her the current ability to pay child support.

But because the record indicates that mother currently has insufficient income to cover her monthly expenses, the district court did not abuse its discretion in continuing to reserve child support.

IV.

A district court has very broad discretion in awarding attorney fees and will be reversed only where there is a clear abuse of that discretion. Crosby v. Crosby,587 N.W.2d 292, 298 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). Under Minnesota law, a court shall award need-based attorney fees to a party if it finds that (1) the receiving party needs that award to pursue the party’s rights in the proceeding; (2) the paying party has the ability to pay attorney fees; and (3) the receiving party does not have the ability to pay them. Minn. Stat. § 518.14, subd. 1 (2002).

The district court found that mother did not have the means to pay her attorney fees and that she needed an award of attorney fees to pursue her rights in the proceeding. The district court further determined that father was able to pay the fees and, thus, awarded mother need-based attorney fees.

Father argues that the district court erred in granting mother need-based attorney fees because the court had insufficient information regarding mother’s ability to pay her own attorney fees. But in support of her motion, mother submitted an affidavit stating that:

In addition, I have fought Dr. Erlemeier’s repeated Motions, demands, and requests without significant help for my attorneys’ fees. I have cashed in all of the available retirement savings in order to meet my expenses and to continue to live. I would respectfully request an award of attorneys’ fees in the amount of $2,500.00.

Father further argues that Minn. R. Gen. Prac. 119 requires mother to have submitted an affidavit establishing the work performed, counsel’s normal hourly rate, and the amount of time claimed. But the district court may waive the affidavit requirement if it is familiar with the history of the case and has access to the parties’ financial information. Gully v. Gully,599 N.W.2d 814, 826 (Minn. 1999).

Here, the district court had presided over earlier hearings in this case and was familiar with the case’s history. In addition, because the issue of spousal-maintenance modification was also before the court, the record contained evidence of the parties’ financial conditions. Thus, the decision to award mother $2,500 in need-based attorney fees was within the district court’s discretion.

Mother also moves for need-based attorney fees of $5,422 for this appeal, under Minn. Stat. § 518.14, subd. 1. In accordance with Minn. R. Gen. Prac. 119, mother’s attorney has submitted an affidavit describing the work performed, counsel’s hourly rate, and the amount of time claimed. Whether to award need-based attorney fees on appeal is discretionary with this court. Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994).

Father asserts that his monthly expenses exceed his monthly income and that he cannot afford to pay both his and mother’s attorney fees. He further claims that because mother receives a significant amount of spousal maintenance, in addition to approximately $120,000 that she received in the division of the marital property, she has sufficient assets to pay her own attorney fees. He contends that mother has failed to demonstrate that she is unable to pay her own attorney fees on appeal, and we agree. While the record before us includes the parties’ monthly budgets, it contains no information regarding the parties’ bank accounts or other financial assets. We do not, therefore, have sufficient information before us to determine that mother cannot pay her own attorney fees for this appeal. Mother’s motion for need-based attorney fees on appeal is denied.

Affirmed in part, reversed in part; motion denied.