This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1141

 

In Re:

 

Thomas N. Conner, petitioner,

Respondent,

 

vs.

 

Cynthia P. Conner,

Appellant.

 

Filed May 17, 2005

Affirmed

Kalitowski, Judge

 

Hennepin County District Court

File No. DC272430

 

Richard D. Goff, Richard D. Goff & Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

 

Kathleen M. Picotte Newman, Joani C. Moberg, Larkin Hoffman Daly & Lindgren, Ltd., 1500 Wells Fargo Financial Center, 7900 Xerxes Avenue South, Minneapolis, MN 55431-1194 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant Cynthia Conner and respondent Thomas Conner were married in 1984 and separated in 2001.  In anticipation of dissolution, the parties reached agreement on the majority of issues, including child support for their two minor children, parenting plans, and property-related issues.  After their marriage was dissolved, the parties went to trial on issues of spousal maintenance and attorney fees.  Appellant contends that the district court abused its discretion (1) by awarding appellant temporary, rather than permanent, spousal maintenance; and (2) by denying appellant’s motion for need-based attorney fees.  We affirm.

D E C I S I O N

I.

            Appellant contends that the district court abused its discretion in awarding temporary, rather than permanent, spousal maintenance by failing to consider (1) all relevant statutory factors; (2) the marital standard of living; and (3) the uncertainty of appellant’s ability to support herself.  Appellant also argues that by awarding temporary maintenance, the district court inappropriately placed the burden on appellant to seek modification if she fails to become self-supporting.

            Appellate courts review a district court’s maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court abuses its broad discretion with respect to maintenance if it resolves 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).  “Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous.”  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992); see Minn. R. Civ. P. 52.01.  Due regard is given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01. 

            A court may grant a maintenance order if it 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 (2004).

            Once the district court determines that it is appropriate to grant maintenance, it must decide on the amount and duration of the award.  See id., subd. 2 (2004).  The district court is required to consider all relevant factors, including the eight factors set forth in Minn. Stat. § 518.552, subd. 2 (2004).  Each case must be examined on its own facts, “and no single statutory factor for determining the type or amount of maintenance is dispositive.”  Erlandson v. Erlandson, 318 N.W.2d 36, 39 (Minn. 1982). 

            1.         Statutory Factors

            Appellant first contends that the district court failed to properly consider the requisite statutory factors in determining the amount and duration of spousal maintenance.  Specifically, appellant claims that the district court disregarded (1) appellant’s limited financial resources; (2) the length of the parties’ marriage; (3) respondent’s ability to pay maintenance; and (4) appellant’s contribution to the family.  We disagree.

            The district court specifically found that appellant could not “provide for her reasonable needs considering the standard of living established during the marriage, especially during her proposed period of training or education.”  The district court found that the parties were married in 1984, that they separated in 2001, and that appellant cared for the parties’ children as a homemaker since 1993.  In addition, the district court made detailed findings on respondent’s income and the parties’ proposed budgets.  The district court set the maintenance amount so as to “equalize the parties’ [budget] shortfalls.”  We conclude that the record indicates that the district court properly considered all relevant factors, including those set forth in Minn. Stat. § 518.552, subd. 2, in setting the amount and duration of maintenance.

            2.         Standard of Living 

            Appellant contends that the district court’s maintenance award failed to properly reflect the parties’ marital standard of living.  Appellant argues that the district court erred in reducing her projected monthly expenses and contends that “[i]f the [maintenance recipient’s] salary does not provide her with the standard of living the parties had while married, and the obligor has the ability to pay spousal maintenance, then she should be awarded permanent spousal maintenance in an amount sufficient to support a similar lifestyle.” 

            We agree that when setting the amount and duration of a maintenance award, the district court is to consider all relevant factors, including “the standard of living established during the marriage.”  See Minn. Stat. § 518.552, subds. 1(a), (b), 2(c).  “[A] maintenance obligor has a duty, to the extent equitable under the circumstances, to support the maintenance recipient at the marital standard of living.”  Peterka v. Peterka, 675 N.W.2d 353, 358-59 (Minn. App. 2004).

            Here, the district court found that the parties lived an affluent lifestyle during their marriage, but that this lifestyle was supported by substantial borrowing.  The district court stated:

            During the marriage, after [respondent] started his employment with Northwest Orthopedic Surgeons in 1991, the parties lived an affluent lifestyle.  They lived in a home in Edina that was valued, for the purposes of this divorce, at $1,217,300.  The parties traveled to destinations such as Sanibel Island and the Florida Keys, Vail, Colorado, and Europe.  In the last full year that the parties lived together, they spent at least $17,000 on vacations for themselves and the children, as well as on [respondent’s] business travel.  The parties occasionally ate at fine restaurants and entertained at their home.  The parties accumulated a wine cellar with an appraised value of $38,637, and owned household goods and furnishings with an appraised value of $109,067.  [Respondent] purchased jewelry for [appellant], which had an appraised value of $34,725.  [Respondent] was also able to purchase French antique furniture and wine.  [Appellant] enjoyed massages, manicures, pedicures and other wellness care.  The parties employed cleaning help, a part-time nanny, and regularly contracted for home maintenance services, including lawn and garden care.  The parties’ lifestyle was supported by substantial borrowing throughout their marriage. 

 

            In considering factors affecting maintenance, the district court found that respondent had an average gross income of $480,000 per year and that appellant managed the parties’ home, cared for their children, and stopped working outside of the home in 1993.  The court noted that appellant had partially completed a Ph.D. program in psychology at the University of Minnesota, and that her proposed educational plan for a degree in interior design to be completed by the fall of 2007 was reasonable and that respondent should pay for appellant’s education.

            Consistent with its findings, the district court awarded appellant $11,000 per month in maintenance until the fall of 2007, when appellant would complete her education and be back in the workforce.  The district court stepped-down appellant’s maintenance to $8,200 per month beginning September 2007.  The step-down was based on a reduction in appellant’s education expenses and an assumption, based on appellant’s educational plan, that she will earn $30,000 per year upon completion of her degree.  The district court set appellant’s maintenance to terminate in November 2013, when the youngest child turns 18. 

            Appellant challenges the district court’s reduction of her proposed monthly budget from $12,759 to $10,972.  But the district court noted that respondent “extensively challenged” appellant’s proposed budget and the court specifically found that certain items in appellant’s budget were “excessive, even in view of the marital standard of living.”  In reviewing the district court’s explanation for adjustments to appellant’s budget, and mindful of the fact that the parties lived beyond their means during their marriage, we cannot say that the district court abused its discretion in reducing appellant’s budget.  Moreover, we cannot say the district court abused its discretion in determining that the maintenance awarded until 2013 “will allow [appellant] to maintain a lifestyle close to the marital standard as long as her children are minors, and will give her a chance to recover from her absence from the job market.” 

            3.         Ability to Become Self-Supporting

            Appellant contends that the district court erred by awarding temporary, rather than permanent, maintenance because appellant’s ability to be self-supporting is doubtful.  Section 518.552, subdivision 3, provides that “[w]here there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.”  This statutory provision “requires that a [district] court order permanent maintenance if the court is uncertain that the spouse seeking maintenance can ever become self-supporting.”  Aaker v. Aaker, 447 N.W.2d 607, 611 (Minn. App. 1989), review denied (Minn. Jan. 12, 1990).  Appellant argues that the district court’s “decision to award temporary spousal maintenance is clearly erroneous because it failed to consider the marital standard of living in evaluating [appellant’s] ability to attain adequate self-support.”  We disagree. 

            The record indicates that the district court recognized and carefully considered the parties’ marital standard of living.  And while the “affluent lifestyle of the parties is an appropriate factor for the district court to consider,” it is but one of several factors in setting maintenance.  See Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  The district court, citing Chamberlain,  acknowledged that either permanent or temporary maintenance would probably be supported by this record.  See id.

            Importantly, the district court specifically found that “there is no realistic uncertainty that [appellant] can become self-supporting.”  The court stated:

[Appellant] is 42 years old, has no health impediments to employment, is intelligent and personable, and has proven academic ability as evidenced by her nearly completing her Ph.D. during the marriage (a degree she chose to abandon).  She proposed a four-year retraining program, which the court has ordered her husband to fund without modification.  She has been assumed to make only an entry-level wage for the next 6 years [following the completion of her retraining program], when temporary maintenance will terminate.  She will have no minor children to attend then.  Her own evidence indicates that she should be making at least $48,000 ($23.35/hour in present dollars) by that time.  In this economy, for a single person, $48,000 is a middle class lifestyle.  While there may be a mathematical possibility that this healthy, intelligent, educated, middle-aged woman whose rehabilitation has been fully funded by her husband will not achieve the $48,000 income or another adequate level of self-support in a time span of 10 years, it is no more uncertainty than what every fully employed person faces in our market economy.  That cannot be what the statute means by uncertainty, or there would never be temporary maintenance.  And if she does suffer accident or illness, of course, she would have grounds to seek modification.

 

            While we may not have reached the same result as the district court, on this record we cannot say that the district court abused its discretion by awarding temporary maintenance.  Chamberlain, 615 N.W.2d at 412.  Where the evidence supports the district court’s determination, a reviewing court must affirm even if it would have reached a different conclusion.  See id.  And because we are not left with the definite and firm conviction that the district court clearly erred in determining that there is no uncertainty that appellant will become self-supporting, we must affirm its award of temporary maintenance.  See Duffey v. Duffey, 416 N.W.2d 830, 832 (Minn. App. 1987), review denied (Minn. Feb. 24, 1988) (stating that a reviewing court should not set aside the district court’s findings of fact “unless left with a definite and firm conviction a mistake has been made”). 

            4.         Burden of Seeking Modification

            Finally, appellant argues that the district court abused its discretion in awarding temporary maintenance because doing so unfairly places the burden on appellant to seek modification if she fails to become self-supporting.  Appellant argues that the supreme court favors permanent maintenance where doubt exists that a party will become self-supporting because “the person who cannot secure employment or who can become only partially self-supporting is hard pressed to meet the burden of proving either that the petitioner’s earnings have decreased or that his or her need has increased.”  Nardini v. Nardini, 414 N.W.2d 184, 198-99 (Minn. 1987).  But unlike the facts here, the Nardini court held that the district court erred in failing to award permanent maintenance because it did not appear as though “there was any consideration given to the factors necessary to a determination of the amount and duration of maintenance.”  Id.at 197.  Here, the district court thoroughly considered and discussed all relevant factors in setting maintenance.  Thus, appellant is merely recasting her argument that permanent maintenance should have been awarded due to uncertainty of self-support.  Because there is evidence in the record to support the district court’s determination that there is no realistic uncertainty that appellant will be able to provide self-support, we must affirm the district court’s award of temporary maintenance.

II.

            Appellant contends that the district court abused its discretion by failing to award need-based attorney fees.  Under Minnesota law, a court “shall” award need-based attorney fees to a party if it finds

(1) that the fees are necessary for the good-faith assertion of the party’s rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;

(2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and

(3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

 

Minn. Stat. § 518.14, subd. 1 (2004).  

            In denying appellant’s request for need-based attorney fees, the district court stated:

As for attorney fees, the court has reviewed the fee application of [appellant’s] counsel in great detail, and it supports the $15,000 award of conduct-based fees based upon [respondent’s] changes of position regarding custody and sale of the house.  As for need-based fees, the memoranda of the parties essentially confirm the court’s understanding following the hearing, i.e., that [respondent] has no more available cash to pay [appellant’s] attorney fees than [appellant] does.  It is hard to say then that, at this time, he is better able to pay her fees than she is.  Moreover, in cases like this, where the parties have large assets and where the attorney fees are in the hundreds of thousands of dollars, awards of need-based fees eliminate any incentive for the parties to control their fees.

           

            The district court further addressed appellant’s request for need-based attorney fees in an order denying appellant’s request for a new trial and for amended findings, stating:

In her post-trial submission of July 18, 2003, seeking need-based legal fees, [appellant] stated that her unpaid fees through July 18, 2003, were $44,682.  She stated that she had received $49,243 in liquid assets pursuant to the trial property settlement.  The court ordered [respondent] to pay $15,000 in [conduct-based] attorney fees, reducing [appellant’s] unpaid balance to about $29,000, or about $20,000 less than the liquid assets she received in the property settlement.  Respondent now states that she has incurred an additional $16,330 in legal fees from June 19, 2003, through February 6, 2004.  In other words, the additional legal fees are less than the excess cash assets available to her when the Judgment and Decree were issued.  Moreover, [appellant] will receive an additional $12,500 in cash for her interest in the Edina Country Club membership and the parties’ wine collection.  On these facts, the court cannot find that [appellant] does not have the means to pay her legal fees, even if [respondent] has the greater earning capacity.

 

            Appellant argues that the record does not support the district court’s conclusion that “[respondent] has no more available cash to pay [appellant’s] attorney fees than she does.”  But appellant does not challenge the underlying findings supporting the district court’s conclusion that it “cannot find that [appellant] does not have the means to pay her legal fees.”  Appellant merely asserts that without an award of need-based attorney fees, she will be forced to borrow money or eliminate items in her budget to pay the fees.  In light of the district court’s unchallenged findings with respect to appellant’s available liquid assets, we cannot say that the district court abused its discretion in denying appellant’s request for need-based attorney fees.

            Affirmed.