This opinion will be unpublished and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

A05-125

In re the Marriage of:

Diane Marie Kowalzyk (Bornhorst), petitioner,

Respondent,

vs.

William Charles Bornhorst,

Appellant.

Filed October 25, 2005

Affirmed

Dietzen, Judge

Hennepin County District Court

File No. DC 237114

A. Larry Katz, Elizabeth Boleyn Bowling, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN 55402 (for respondent)

Katherine O’Keefe Fossey, Parker, Satrom & Donegan, P.A., 123 South Ashland, Cambridge, MN 55008 (for appellant)

Considered and decided by Dietzen, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

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

DIETZEN, Judge

Appellant challenges the district court’s denial of his motion for termination of spousal maintenance, arguing that his early retirement constituted a substantial change in circumstances requiring that spousal maintenance be terminated, and that the district court abused its discretion by not allowing him to recover a cash bond previously posted to secure outstanding medical expense and health insurance obligations. Because the district court did not abuse its discretion in denying the motion for termination of spousal maintenance and refusing the request for recovery of the cash bond, we affirm.

FACTS

Appellant William Charles Bornhorst and respondent Diane Maria Kowalzyk’s marriage was dissolved by judgment and decree on February 9, 2001, pursuant to stipulations made by the parties in a marital termination agreement. The judgment awarded respondent permanent spousal maintenance “open to modification, upon proper motion based upon a substantial change in circumstances rendering the original award unreasonable and unfair.” The judgment also entitled respondent to continuing coverage under appellant’s medical and dental plans without interference until no longer available by law, and provided that respondent “shall have notice of any changes and the absolute right to extend or continue any dependent coverage available to her through such plans.” In regard to the parties’ daughter, the judgment stated that appellant “plans to maintain health and dental insurance for the adult children who are eligible for coverage under his plans as students so long as the coverage remains available to him.”

In February 2001, appellant told his insurance provider to terminate family health insurance coverage for respondent and their daughter without informing the appropriate parties. Respondent moved to compel appellant to pay the COBRA premiums required to reinstate health and dental insurance, which was granted by the district court. When appellant failed to comply with this order, respondent sought and the district court granted an order requiring appellant to post a $10,000 cash bond to secure appellant’s insurance obligations set forth in the order. Appellant failed to meet the deadline in the order for posting the bond. Subsequently, the district court found him in constructive contempt of its order and the judgment. In its September 3, 2002 order, the district court also found that respondent and the parties’ daughter had incurred medical bills totaling over $15,000 as a result of the lapse in health insurance. Appellant posted the required bond on October 2, 2002.

On June 30, 2002, appellant retired early from General Mills, Inc. with additional pay and benefits set forth in a severance package that ended one year later. Appellant then brought a motion to terminate his spousal maintenance obligation, arguing that his early retirement constituted a substantial change in circumstances; and seeking the return of the $10,000 cash bond. In its findings and order dated February 24, 2004 (February order), the district court concluded that appellant had “not carried his burden of making a prima facie case showing that there has been a substantial change in circumstances which would justify modification of spousal maintenance,” and, therefore, denied the motion. The district court also found the presence of various Richards factors, suggesting that the district court believed appellant’s early retirement to be in bad faith. In re Marriage of Richards, 472 N.W.2d 162, 164-65 (Minn. App. 1991). Specifically, the district court found that appellant had “no physical or mental disabilities which prevent him from working,” was “several years away from the traditional retirement age of 65,” yet “is not seeking new employment” and “has not made one job application seeking to find new employment.” The district court also concluded that appellant had outstanding obligations and therefore denied the motion for return of the cash bond. Appellant did not appeal the February order.

In August 2004, appellant again moved to terminate spousal maintenance based on his early retirement and requested the return of the cash bond. In its findings and order dated November 23, 2004 (November order), the district court again denied appellant’s motions. The district court’s findings stated that appellant’s “evidence of income and other circumstances is not credible and the [c]ourt has no basis on which to determine appropriate maintenance.” Specifically, appellant failed to provide an explanation for the discrepancies between his reported and actual income and expenses. The district court denied appellant’s request to return the bond both because appellant “has not provided credible information regarding his need for the money” and because “[respondent] can seek an award out of the cash bond upon submission of evidence of outstanding bills.” Appellant subsequently filed a notice of appeal of the November order.

D E C I S I O N

On appeal, appellant raises two issues. First, appellant challenges the district court’s denial of his motion for modification of spousal maintenance. Appellant contends that his early retirement constitutes a substantial change in circumstances requiring the termination of his spousal maintenance obligation.

The district court has broad discretion in deciding whether to modify a spousal maintenance award. Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. App. 2004). A district court abuses its discretion when its decision is “against logic and the facts in the record.” Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001) (citation omitted).

Spousal maintenance may be modified if the moving party shows both a substantial change in circumstances and that the change in circumstances renders the original award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (2004). Once the moving party demonstrates the existence of a substantial change in circumstances, the district court then determines whether that change renders the original award unreasonable and unfair. “[U]nreasonable and unfair” . . . are “strong terms which place upon the claimant a burden of proof [that is] more than cursory.” Giencke v. Haglund, 364 N.W.2d 433, 436 (Minn. App. 1985).

Appellant presents two arguments in support of his position that the district court abused its discretion. First, appellant argues that the original dissolution judgment and decree provided that his early retirement would constitute a substantial change in circumstances automatically terminating spousal maintenance. We disagree.

“A reviewing court must generally consider ‘only those issues that the record shows were presented and considered by the district court in deciding the matter before it.’” Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citation omitted). “Nor may a party obtain review by raising the same general issue litigated below but under a different theory.” Id. Here, appellant moved for termination of spousal maintenance based on the following theories: respondent’s involuntary retirement, the distribution of the contents of the retirement plan to both parties, and appellant’s inability to seek employment comparable to his prior position. The motion did not include the legal theory now raised on appeal that the judgment incorporated the parties’ intentions to terminate spousal maintenance when appellant retired from General Mills. Because appellant is attempting to raise a different legal theory on appeal for the same general issue litigated below, he is technically barred from so doing.

Appellant’s argument also fails on the merits as the plain language of the dissolution judgment does not support his interpretation. “It is permissible to interpret and clarify a judgment because of ambiguities or uncertainty upon its face.” Robertson v. Robertson, 376 N.W.2d 733, 735 (Minn. App. 1985). In this case, however, the dissolution judgment is clear and contains no ambiguities. The original dissolution judgment incorporated a marital termination settlement reached by the parties that set out their specifically bargained-for intentions. Both documents clearly provided for an award of permanent spousal maintenance because respondent is unlikely to ever become self-supporting. Although the judgment’s findings of fact do state that appellant intends to retire at age 59 and 1/2 years, there is no indication that this event automatically terminates appellant’s spousal maintenance obligation. On the contrary, the judgment unambiguously provides that modification of the permanent spousal maintenance award will not occur absent the proper showing under Minn. Stat. § 518.64, subd. 2(a). “Aside from [appellant’s] anticipated retirement in two-and-a-half years, the parties are unable to anticipate the changes in circumstances which might take place during a permanent maintenance obligation and have left the award open to modification, upon proper motion based upon a substantial change in circumstances rendering the original award unreasonable and unfair.”

Second, appellant contends that the district court abused its discretion by refusing to terminate appellant’s spousal maintenance obligation despite evidence of appellant’s retirement in good faith. Respondent asserts that appellant is collaterally estopped from litigating whether his early retirement constituted a substantial change in circumstances because appellant did not appeal the February order. Respondent’s argument has merit.

An order denying a motion to increase or reduce spousal maintenance is an appealable order. Kiesow v. Kiesow, 270 Minn. 374, 380-81, 133 N.W.2d 652, 658 (1965). “The order, being appealable, becomes final upon the expiration of the time for appeal, and the facts litigated and determined therein, after a hearing, are not open to relitigation on a subsequent motion, at least in the absence of fraud or some exceptional circumstances.” Id. at 381, 133 N.W.2d at 658.

In the February order, the district court denied appellant’s motion because appellant failed to provide credible evidence that his early retirement constituted a substantial change in circumstances justifying modification of spousal maintenance. In the February order, the district court also found the presence of various Richards factors, suggesting that the district court believed appellant’s early retirement to be in bad faith. See In re Marriage of Richards, 472 N.W.2d 162, 164-65 (Minn. App. 1991) (stating that an obligor’s retirement may constitute a substantial change in circumstances as long as it is not done in bad faith, which is determined by various factors including the obligor’s health and employment history, expectations regarding early retirement, and economic conditions at the time of retirement). Specifically, the district court found that appellant had “no physical or mental disabilities which prevent him from working,” was “several years away from the traditional retirement age of 65,” and yet “is not seeking new employment” and “has not made one job application seeking to find new employment.”

Because appellant did not appeal the February order denying his motion for modification, he is precluded from challenging the district court’s finding that his early retirement did not constitute a substantial change as of that date. But appellant is not precluded from showing that “the change since the denied motion has been significant enough that it might, because of its incremental effect, require the trial court to examine the cumulative changes since the order setting the support level.” Phillips v. Phillips, 472 N.W.2d 677, 680 (Minn. App. 1991).

Appellant argues that the district court abused its discretion by failing to make findings in its November order regarding his good or bad faith in retirement. But the district court did make findings in its February order that addressed the Richards factors. Consequently, appellant’s argument is without merit. Appellant further argues that the record does not support the district court’s November order finding that appellant again failed to demonstrate that his early retirement constituted a substantial change in circumstances. We disagree.

First, appellant’s counsel conceded at the hearing that “my client’s circumstances are the same” as of February 2004. Second, the district court found that appellant again failed to provide any credible evidence, beyond the mere fact of retirement, to bolster his second request for termination of spousal maintenance. “[T]his court will not speculate, and the appellant cannot complain where inadequate documentation leads at least in part to the district court’s refusal to modify a decree.” Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987). The district court concluded that appellant failed to provide adequate explanation or documentation for the discrepancy in reported income and expenses and the extra funds from the odd jobs he performed. The record supports the district court’s determination.

II.

Next, appellant contends that the district court abused its discretion by refusing to return appellant’s $10,000 cash bond posted to secure his compliance with health insurance and medical expense obligations in previous orders and the judgment. Appellant argues that respondent has failed to provide evidence of outstanding medical bills and, thus, the money should be released to him. Respondent argues that the bond was intended to partially guarantee $15,000 in outstanding obligations and should be paid to respondent in partial satisfaction of these obligations.

The judgment specifically entitled respondent to continuing coverage under appellant’s medical and dental plans without interference until such coverage is no longer available by law, and provided that respondent “shall have notice of any changes and the absolute right to extend or continue any dependent coverage available to her through such plans.” The judgment also stated that appellant “plans to maintain health and dental insurance for the adult children who are eligible for coverage under his plans as students so long as the coverage remains available to him.”

In three separate orders, the district court found that appellant, in violation of the judgment, took affirmative steps to cancel health insurance for respondent and their daughter and failed to notify them of the termination, and that appellant’s actions resulted
in the accumulation of unpaid COBRA premiums, loss of respondent’s opportunity to extend lower cost health insurance coverage, and $15,000 in medical bills incurred by respondent. As a result, appellant was found in contempt and ordered to post a $10,000 cash bond pursuant to Minn. Stat. § 518.24 (authorizing a court to require that sufficient security be given to ensure payment of maintenance or support obligations). Appellant did not appeal any of these orders and, thus, cannot challenge the district court’s original findings that respondent presented adequate proof of medical and health insurance expenses necessitating the posting of the bond.

Appellant argues that his motion for return of the cash bond should be granted because the bond is no longer necessary in light of respondent’s failure to move the court for release of the bond. We review the subject of security “as almost wholly within the trial court’s discretion.” Zagar v. Zagar, 396 N.W.2d 98, 102 (Minn. App. 1986). The district court’s previous finding that appellant’s contempt resulted in $15,000 in medical expenses coupled with respondent’s claim that she is in the process of procuring the cash bond is a sufficient basis to continue to hold the bond and the district court did not abuse its discretion in so doing.

Affirmed.