This opinion will be unpublished and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

A05-571

 

In re the Marriage of: Michael D. Robbins, petitioner,
Respondent,

vs.

Rosanne E. Robbins,
Appellant.

 

Filed March 28, 2006

Affirmed as modified

Minge, Judge

 

Mower County District Court

File No. FX-04-14

 

 

Susan M. Lach, Messerli & Kramer P.A., 150 South Fifth Street, Suite 1800, Minneapolis, MN 55402-4218 (for respondent)

 

Michael Ormond, Butler North Building, Suite 303, 510 First Avenue North, Minneapolis, MN 55403 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Randall, Judge.

U N P U B L I S H E D  O P I N I O N

MINGE, Judge

            Appellant claims that in awarding her temporary maintenance, the district court improperly evaluated the parties’ reasonable expenses, respondent’s income, and appellant’s ability to become self-supporting.  Because we conclude that the district court’s temporary maintenance award was not an abuse of discretion but that the district court should have reserved jurisdiction over maintenance, we affirm and modify accordingly. 

FACTS

            Appellant Rosanne Robbins and respondent Michael Robbins married in 1991 and divorced in 2005.  Rosanne has suffered from short-term memory loss since she was 14.  Rosanne worked during high school and college and obtained a degree in elementary education.  After the parties married, Rosanne began experiencing seizures.  Rosanne worked as a substitute teacher periodically until shortly before the parties’ first child was born in 1994.  She has not worked outside the home since then.  In 2002, Rosanne had a more serious seizure.  Although she now takes medication to control seizures, they continue to occur and she is not permitted to drive a vehicle. 

            Michael holds a master’s degree in business administration, and owns 54% of the stock in and is employed by his family’s furniture business.  Michael is purchasing this stock from his mother, and pays her $3,289.35 per month.  At the time of the trial, Michael still owed his mother $244,659.04. 

            At trial, the parties contested several issues, including child custody and spousal maintenance.  Custody evaluators recommended that Michael be granted sole physical custody of the children, due to concerns about Rosanne’s memory loss.  Although the district court awarded joint legal custody to both parents, it awarded Michael sole physical custody based on the problems due to Rosanne’s memory loss and Michael’s “more tightly knit” relationship with the children.

            In determining maintenance, the district court first considered Michael’s income.  Michael presented evidence that his company’s profits had decreased in the last several years and that his salary had been reduced the previous year.  The district court found that the company’s prospects were uncertain and that Michael had experienced a bona fide reduction in income. 

            The district court next considered Rosanne’s ability to find employment.  A vocational rehabilitation consultant evaluated Rosanne’s employment potential and concluded that she functions in the “high middle average range of vocational development” and could find a job.  The district court found that the psychological testing and Rosanne’s work history supported the consultant’s conclusion, despite the fact that the consultant was not aware of Rosanne’s memory loss.  The district court found that Rosanne could find employment and earn between $10 and $12 per hour. 

            The district court finally considered the reasonable needs of the parties, noting that the parties could not continue to maintain their previous standard of living because Michael’s income had decreased.  The parties submitted estimates of their reasonable expenses, but the district court reduced both parties’ budgets due to the decreased available income.

            The district court ordered Michael to pay temporary maintenance in the amount of $1,200 per month.  Rosanne was not ordered to pay any child support.  Because the district court found that Rosanne would be able to find employment, the temporary maintenance award was only for a period of one year.  In dividing the parties’ marital property, the district court gave Rosanne a greater share of the parties’ liquid assets to provide her with investment income to supplement her anticipated employment income.  This appeal of maintenance followed.

D E C I S I O N

            This appeal is over the appropriateness of the district court’s award of temporary maintenance.  We review maintenance determinations under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  A district court abuses its discretion in maintenance determinations if its findings of fact are unsupported by the record or if it improperly applies the law.  Id. at 202 & n.3.  The determination of a party’s income for purposes of maintenance is a factual finding and will not be disturbed unless it is clearly erroneous.  Peterka v. Peterka, 675 N.W.2d 353, 357 (Minn. App. 2004).    

            Minn. Stat. § 518.552, subd. 2 (2004) sets the framework for determining maintenance:

The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors including: . . .

 

In essence, the district court balances the recipient’s needs against the obligor’s ability to pay.  Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001).  No single statutory factor is dispositive.  Broms v. Broms, 353 N.W.2d 135, 138 (Minn. 1984). With respect to duration, Minn. Stat. § 518.552, subd. 3 (2004) further provides that

[n]othing in this section shall be construed to favor a temporary award of maintenance over a permanent award, where the factors under subdivision 2 justify a permanent award. 

 

Where 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.

 

I.

            The first issue is whether the district court made clearly erroneous factual findings or abused its discretion in its consideration of the parties’ reasonable expenses and Michael’s income.

            A.  Standard of Living

            Rosanne initially argues that the district court’s maintenance award was an abuse of discretion because it will not allow her to maintain the standard of living the parties enjoyed during the marriage.  Although the standard of living is one factor for the district court to consider, the district court must also consider the obligor’s ability to pay maintenance.  Minn. Stat. § 518.552, subd. 2(c), (g).  This court has noted that it is not always possible for a person to receive maintenance that would allow him or her to have the standard of living enjoyed by the parties during the marriage: “The purpose of a maintenance award is to allow the recipient and the obligor to have a standard of living that approximates the marital standard of living, as closely as is equitable under the circumstances.”  Peterka v. Peterka, 675 N.W.2d at 358 (emphasis added).  We went on to state that “[t]he statutory framework for the setting and modification of maintenance awards implicitly acknowledges that a sub-marital-standard-of-living maintenance award may be initially equitable.”  Id. at 359.

            Here, the district court determined that Michael’s income could not allow both parties to live at the marital standard of living.  It had dropped substantially and as of January 2004, his salary was $95,000 per year, which gave him a net income of $5,624 per month. 

            Rosanne acknowledges that Michael’s income decreased, at least temporarily, but argues that because it is uncertain whether Michael’s income will remain at this lower level, she is entitled to maintenance so she can live at the “historical” standard of living enjoyed by the parties.  Michael presented evidence that, despite the fact that he had only reduced his income the previous year, the profits from the family furniture business had been decreasing for the past several years.  Rosanne presented no evidence to the contrary.  Thus, Rosanne’s argument lacks factual support.  Also, in Carrick v. Carrick, this court held that the district court erred by considering the maintenance payor’s income as he speculated it would change in a few months, rather than as it was at the time of the motion.  560 N.W.2d 407, 412 (Minn. App. 1997).  We conclude that the district court properly considered both Michael’s ability to pay and the marital standard of living. 

            B.  Expenses

            Rosanne next argues that the district court inaccurately compared the budget she proposed for Michael as a single person to the budget the district court determined was reasonable for Rosanne because Michael’s company pays many of his expenses.  Even if certain expenses are so paid, that does not automatically make the maintenance award an abuse of discretion.  The district court is not required to adopt either party’s estimate of the other party’s expenses. 

            Rosanne lists several aspects of her proposed monthly expenses that the district court did not include, and Michael responds that the district court excluded several expenses from his budget as well and that his expenses are increased because he was granted sole physical custody of the children.  The district court explained in its order that, due to Michael’s reduced income, it had to reduce the standard of living from that to which the parties were accustomed.  Under the statutory framework of Minn. Stat. § 518.552, subd. 2, requiring the district court to consider both the standard of living during the marriage and the payor’s ability to meet needs while paying maintenance, the district court’s reduction of the parties’ estimates of their monthly expenses does not make the maintenance award an abuse of discretion. 

            C.  Debt Payments

            Rosanne finally argues that the district court abused its discretion by considering the debt owed on Michael’s business in both the property division and the determination of the parties’ expenses.  In dividing the parties’ properties, the district court awarded the parties’ interest in the furniture business to Michael.  The district court considered both the worth of the interest and the debt owed on the interest in the business, and concluded that Michael’s interest in the business had a negative value.  In its discussion of Michael’s expenses, the district court reduced his budget, and then noted that Michael did not have current income adequate to meet his expenses and to pay his obligation to his mother for his interest in the furniture business.  The district court concluded that Michael would have to “cut down certain amenities.”  Thus, Rosanne’s argument fails because the district court did not include Michael’s debt to his mother in his expenses, but only noted that Michael would have to make additional changes in his lifestyle to meet that obligation.  The district court did not make clearly erroneous factual findings or abuse its discretion in its consideration of the parties’ reasonable expenses and Michael’s income.[1] 

II.

            The second issue is whether the district court made clearly erroneous factual findings or abused its discretion in its consideration of Rosanne’s ability to support herself. 

            A.  Employment

            Rosanne first argues that the district court clearly erred in finding that she can find employment.  Rosanne contends that the testimony of a vocational consultant is not probative because the consultant was not aware of Rosanne’s short-term memory loss.  But because Rosanne suffered from the short-term memory loss during her employment prior to her marriage, the district court had evidence of employability despite the memory loss.  Rosanne further argues that her previous employment does not indicate that she can find employment now because her seizures have worsened.  Because the vocational consultant was aware of Rosanne’s seizures and her use of medications, the consultant’s testimony on Rosanne’s ability to find work despite the seizures is helpful.  Based on the record before it, the district court’s finding that Rosanne could find employment was not clear error.  See Schallinger v. Schallinger, 699 N.W.2d 15, 22 (Minn. App. 2005) (affirming the district court’s denial of maintenance to spouse whose current part-time employment was not sufficient to meet her needs, but who was physically and emotionally able to work more hours in order to be self-supporting), review denied (Minn. Sept. 28, 2005).   

            B.  Temporary Maintenance

            We also consider whether the district court should have reserved jurisdiction over maintenance beyond the one-year temporary award.  Failure to reserve jurisdiction for continuing maintenance forecloses the right to consider the issue after temporary maintenance ends.  Griepp v. Griepp, 381 N.W.2d 865, 870-71 (Minn. App. 1986).   Rosanne does not have a contemporary employment history.  Her health conditions and their effect on her ability to be employed have changed over the years and the financial strength of Michael’s business has also changed.  The district court should retain jurisdiction over maintenance so that Rosanne is not left without a remedy if conditions change or expectations are not realized.  In this case, it was an abuse of discretion for the district court to enter a judgment that would foreclose a right to claim continuing maintenance after one year.  See Barrett v. Barrett, 394 N.W.2d 274, 277 (Minn. App. 1986) (affirming district court’s award of no maintenance but modifying judgment and decree to reserve jurisdiction over maintenance because obligor’s unemployment was only “seasonal”); Moon v. Moon, 378 N.W.2d 49, 53 (Minn. App. 1985) (affirming award of maintenance but remanding to reserve jurisdiction because obligee was disabled and unemployable, and court noted that obligee’s physical condition would likely worsen).  We affirm the maintenance award as modified to include a reservation of jurisdiction.

            C.  Income from Assets

            Rosanne also challenges the district court’s finding that she will eventually be able to support herself on the grounds that the district court erroneously believed it was awarding her sufficient liquid assets to provide dependable additional income and that the district court underestimated the value of Michael’s furniture business and career prospects.  Because Rosanne does not provide sufficient evidence that the district court clearly erred in these findings, these arguments fail.  Although Michael received more nonmarital property, that does not change the fact that Rosanne received more marital property.

            Finally, Rosanne argues that she should not have to rely on income from her property award to support herself because it restricts the ways in which she can use the marital property distributed to her.  This court has recognized that in setting maintenance, the district court should consider financial resources including income from assets that are received in the property distribution, although it should not expect a spouse to invade principal to meet monthly living expenses.  Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985).  Thus, the district court did not err in considering Rosanne’s income. 

            Affirmed as modified.