This opinion will be unpublished and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

A04-1452

 

 

In re the Marriage of:

 

Milne Kintner-Dee, petitioner,

Appellant,

 

vs.

 

Arthur Morris Dee,

Respondent.

 

 

Filed May 31, 2005

Affirmed in part and reversed in part

Lansing, Judge

 

Hennepin County District Court

File No. DW 288096

 

 

Becky Toevs Rooney, 527 Marquette Avenue, 700 Rand Tower, Minneapolis, MN 55402 (for appellant)

 

Theresa A. Capistrant, Capistrant & Associates, P.A., Uptown Business Center, 3009 Holmes Avenue South, Minneapolis, MN 55408 (for respondent)

 

            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

In this appeal from judgment in a marital-dissolution proceeding, Milne Kintner-Dee challenges the district court’s refusal to order spousal maintenance and attorneys’ fees.  Kintner-Dee also challenges the provision in the judgment that reserves jurisdiction on spousal maintenance for Arthur Dee.  Because the district court acted within its discretion in not ordering spousal maintenance or attorneys’ fees for Kintner-Dee, we affirm that part of the judgment.  But because the record does not demonstrate that Dee sought spousal maintenance before the contested hearing or adequately demonstrated a basis for reserving the issue of maintenance, we reverse the reservation provision.

F A C T S

Milne Kintner-Dee and Arthur Dee were married for thirty-two years and are the parents of two emancipated children.  At the time of dissolution, Kintner-Dee was fifty-five and Dee was fifty-four.  Through mediation Dee and Kintner-Dee were able to reach agreement on the valuation and allocation of their assets.  A district court referee conducted a hearing on the remaining issues, which included Kintner-Dee’s request for spousal maintenance and attorneys’ fees.

The evidence submitted at the contested hearing showed that during the first twenty years of marriage, the household income averaged $50,000.  Kintner-Dee testified that, until 1996, their combined income did not exceed $60,000 and that their greatest combined income was $72,000 in 1999.  Although Kintner-Dee held occasional part-time jobs, she was not employed outside the home during most of the years of marriage.  She secured a full-time position as a receptionist in 1997, earning an annual salary of $17,000. 

            In 1999 Kintner-Dee obtained certification as a personal life coach and began working as a self-employed personal coach.  In the most recent years, her gross employment receipts show steady growth.  In 2002 she had a gross income of $80,567 with a net of $52,971; in 2003 her gross income was $96,048 and her net income was $35,158.  To calculate net income for 2003, Kintner-Dee subtracted approximately $59,700 in business expenses, ranging from $3,600 in reference materials to $4,600 in office supplies. 

Kintner-Dee estimated her current monthly expenses as $6,500.  These expenses include substantial amounts for personal services but also include approximately $1,000 for disability insurance, long-term care insurance, and contributions to her retirement. Kintner-Dee acknowledges that some of the expenditures are for items or services that exceed the standard of living during the marriage, and the record shows that these expenses are greater than the average income of the family during the marriage.  The court found that Kintner-Dee’s net monthly income is $4,583 and her reasonable monthly expenses are $4,473.47.

            Dee has been employed full-time throughout the marriage except for a period following graduate school and two periods of lay-off in recent years.  He worked for a number of years as a systems engineer and started his own business, Art Dee, Inc., before accepting an employment contract at the University of Rochester.  The employment agreement is for a period of one year, and it is uncertain whether it will be renewed.  His salary at the university is $80,000 a year.  He nets approximately $4,400 a month.  As part of his employment, he receives medical, dental, disability and life insurance, and a six-percent contribution to his retirement benefits.  Although Dee claimed monthly expenses of $5,415.83, the district court found that his reasonable monthly expenses, which include payments on student loans for the parties’ daughters, amount to $5,085.83.  Dee testified that, to sustain the standard of living the parties had during the marriage, each party would have expenses of about $3,000 to $3,500 a month. 

            At trial, Kintner-Dee sought spousal maintenance of $1,900 a month and attorneys’ fees, which amounted to roughly $10,580 at the time of trial.  Of this balance, she had paid approximately $8,500.  The district court denied Kintner-Dee’s request for maintenance and attorneys’ fees and reserved the maintenance issue for both parties.  Kintner-Dee now appeals the denial of maintenance and attorneys’ fees and the reservation of maintenance for Dee.

D E C I S I O N

I

            A court may order maintenance in a dissolution proceeding when the evidence shows that the spouse “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.”  Minn. Stat. § 518.552, subd. 1(a) (2004).  Maintenance is also appropriate if the court finds that the spouse “is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment.”  Minn. Stat. § 518.552, subd. 1(b) (2004).  When the district court determines that maintenance is appropriate, the amount and duration are established by “consideration of many factors, a number of which are enumerated in Minn. Stat. § 518.552, subd. 2.”  Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997).

The standard of review on appeal from a maintenance determination is whether the district court abused its discretion.  Gales v. Gales, 553 N.W.2d 416, 418 (1996).  An abuse of discretion occurs when the district court reaches a “conclusion that is against logic and the facts on record.”  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  To determine whether findings are clearly erroneous, we view the record in the light most favorable to the district court’s findings and defer to the district court’s credibility determinations.  Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).  “That the record might support findings other than those made by the [district] court does not show that the court’s findings are defective.”  Id. at 474.

            Kintner-Dee challenges the district court’s failure to consider various statutory factors, but these factors relate to amount and duration of maintenance, and specific consideration of these factors generally follows a determination on the availability of sufficient resources or the ability to be self-supporting.  The district court took into account several of the additional statutory factors upon which Kintner-Dee relies for her argument.  The district court expressly noted Kintner-Dee’s age, the long-term nature of the marriage, and her primary role as a homemaker.  The district court also found that she is healthy, college educated, capable of employment, and has developed marketable skills.  These findings indicate that the district court incorporated and weighed the relevant factors.  The district court concluded that, given the parties’ standard of living throughout the marriage, Kintner-Dee is capable of providing self-support through appropriate employment. 

The record supports the district court’s determination that Kintner-Dee has attained self-support through appropriate employment.  Despite significant gaps in employment during the marriage to assume homemaking responsibilities, Kintner-Dee has succeeded in obtaining suitable employment, which provides significant income.  She grossed in excess of $80,000 for the last two documented years.  Although her calculations of net income for the two years amount to less than that determined by the court, the referee, as fact-finder, acted within his discretion to take into account the temporary nature of some of the business start-up costs and to reduce other expenses that he found to be unreasonable.  After recalculating her expenses, the court found that her income exceeded her expenses and that, based on Kintner-Dee’s current circumstances, she did not demonstrate the need for spousal maintenance.

Kintner-Dee points to the instability of the personal-coaching profession as a basis of her need for maintenance.  While Kintner-Dee may not be able to sustain this level of employment because of the long hours necessary to earn her current income, the court properly evaluated her current income to determine need.  See Nardini v. Nardini, 414 N.W.2d 184, 197 (Minn. 1987) (examining party’s circumstances at time of hearing to determine need for maintenance).  As the district court states, “given the length of the marriage, [Kintner-Dee’s] age, the volatility of [a coaching career], and the uncertainty of her ability to replace that income with other endeavors should it become necessary, it is appropriate to reserve spousal maintenance.”  If Kintner-Dee’s income substantially declines, the reservation of jurisdiction on maintenance would allow for consideration of the changed circumstances.

II

            The district court has discretion in reserving jurisdiction of the issue of maintenance.  Minn. Stat. § 518.55, subd. 1 (2004).  Reservation is appropriate when uncertainty exists on either party’s ability to be self-sufficient.  Wopata v. Wopata, 498 N.W.2d 478, 485-86 (Minn. App. 1993); Van De Loo v. Van De Loo, 346 N.W.2d 173, 178 (Minn. App. 1984).  Kintner-Dee argues that the district court erred by reserving jurisdiction of spousal maintenance for Dee when he did not seek maintenance in any responsive pleading or indicate that he was intending to raise the issue of spousal maintenance or a reservation of spousal maintenance in the contested hearing.  We agree.

            The issue of reserving spousal maintenance for Dee first arose in response to a question by Dee’s attorney during the contested hearing.  In that response Dee indicated it would be fair to reserve maintenance for him if the court were to reserve maintenance for Kintner-Dee.  The basis for reservation of maintenance must be determined individually, not imposed as a function of reciprocity.  The district court did not make findings on Dee’s lack of sufficient property to provide for his reasonable needs or on his inability to be self-supporting.  Because Dee failed to raise this issue in responsive pleadings, failed to identify it as an issue for the contested hearing, and failed to demonstrate the underlying need, we reverse the provision reserving jurisdiction over spousal maintenance for Dee.

III

The district court shall grant attorneys’ fees when necessary for the good-faith assertion of a party’s rights if the party seeking fees does not have the ability to pay them, and the party from whom fees are sought is capable of paying the fees.  Minn. Stat. § 518.14, subd. 1 (2004).  Additionally, the court may order attorneys’ fees when a party unreasonably contributes to the length or expense of the proceedings.  Id.  On review, the district court’s decision on whether to order attorneys’ fees will not be reversed absent an abuse of discretion.  Beck v. Kaplan, 566 N.W.2d 723, 727 (Minn. 1997).

The district court found that Dee’s and Kintner-Dee’s incomes and expenses, along with the division of assets, “place them on nearly equal footing.”  The court further found that the amount of attorneys’ fees incurred was also nearly equal.  Based on these findings, the court denied both Dee’s and Kintner-Dee’s requests for contribution to attorneys’ fees.

The record supports the district court’s factual findings on comparable income, expenses, and attorneys’ fees.  We reject Kintner-Dee’s contention that conduct-based attorneys’ fees are appropriate; the record is devoid of any evidence of bad conduct that would warrant attorneys’ fees.  The district court did not abuse its discretion in denying attorneys’ fees.

            Affirmed in part and reversed in part.