This opinion will be unpublished and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

A05-1398

 

Margaret Jane Faber,

f/k/a Margaret Jane Cole, petitioner,

Respondent,

 

vs.

 

Wendell John Cole,

Appellant.

 

Filed April 18, 2006

Reversed and remanded

Dietzen, Judge

 

Dakota County District Court

File No. F7-95-15365

 

Margaret Jane Faber, 13144 Gamma Way, Apple Valley, MN 55124 (pro se respondent)

 

John T. Burns, Jr., Burns Law Office, 115 Midway Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for appellant)

 

            Considered and decided by Worke, Presiding Judge; Wright, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

In this post-dissolution proceeding, appellant challenges the district court order and judgment reducing his spousal maintenance from $547 to $400 per month, arguing that the district court failed to consider all of the statutory factors and to make the necessary findings of fact to support the modification, and that his maintenance obligation should be further reduced or eliminated.  Because the district court failed to adequately consider all of the statutory factors and make the appropriate findings of fact to support the reduction in spousal maintenance, we reverse and remand.

FACTS

Appellant Wendell John Cole and respondent Margaret Jane Faber were married for 25 years until their marriage was dissolved by judgment and decree in October 1996.  Appellant is 56 years old, has a Bachelor of Science degree from the University of Minnesota, and has spent most of his career as an employee of Harmon Glass Company (Harmon), until he was laid off in 2004.  Respondent is 54 years old, has a high-school education, and has held various administrative positions.  She is currently employed by Independent School District 194 as a paraprofessional. The parties have three adult children from their marriage.

            Pursuant to the divorce decree, appellant was ordered to pay permanent spousal maintenance in the amount of $450 per month as well as child support.  At that time, appellant was employed by Harmon and had a net monthly income of $2,005.37.  Respondent was employed part-time at the Apple Valley Medical Center and had a net monthly income of $948.37.

            In April 2005, appellant moved to modify his spousal-maintenance obligation, requesting that the district court eliminate his obligation, which had increased with cost-of-living adjustments to $547 per month.  By this time, appellant no longer paid child support because the parties’ children had reached the age of majority.  Appellant submitted an affidavit, which stated that his income was relatively unchanged from the time of the divorce, that his hourly wage had a modest increase from $16.36 to $16.50 per hour in 2003, and that he was laid off from work in November 2004.  Respondent opposed the motion, and submitted an affidavit stating that her taxable gross income for 2004 was less than $11,000 due to a temporary lapse in employment; and that appellant’s maintenance payments had been in arrears since November 2004.   

Following a hearing, the district court ordered a reduction in appellant’s spousal-maintenance obligation to $400 per month commencing June 1, 2005, and that appellant satisfy his past-due maintenance obligation.  In its memorandum, the district court noted that (1) appellant had lost his job and had taken another job for $11.50 per hour; (2) appellant “claims” that his monthly living expenses totaled $2,698.93; (3) appellant was receiving unemployment benefits of $350 per week which was more than respondent was earning; (4) appellant lives with his girlfriend, but did not reveal her income or her contribution to their living expenses; and (5) respondent “claims” that her 2004 taxable gross income was less than $11,000.  The district court concluded that respondent had a need for continued maintenance.

 Appellant sought to reconsider the district court’s modification award, claiming that the court (1) improperly weighed the relative financial need of respondent by relying on her temporary lapse in employment; and (2) failed to make necessary findings, including those regarding the parties’ income and reasonable monthly expenses.  The district court denied appellant’s request to reconsider the modification award.  This appeal follows.

D E C I S I O N

I.

            Appellant contends that the district court abused its discretion in its determination of the amount of the spousal maintenance.  Respondent requests that we affirm the district court’s order reducing the amount of spousal maintenance to $400 per month. 

The district court has broad discretion over issues of spousal maintenance, and its decisions will not be reversed absent a clear abuse of that discretion.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). A district court abuses its discretion if it makes findings unsupported by the evidence or improperly applies the law.  Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn. 1985).  A district court should exercise its discretion to modify “with great caution and only upon clear proof of facts showing that the circumstances of the parties are markedly different from those in which they were when the decree was rendered.”  Rubenstein v. Rubenstein, 295 Minn. 29, 32, 202 N.W.2d 662, 664 (1972).

A party seeking modification of a spousal-maintenance award must show (1) that there has been a substantial change in circumstances since the original or previous award; and (2) that change has made the existing award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2004); Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997).  Under the relevant part of the applicable statute, a party may satisfy the burden of demonstrating a substantial change in circumstances sufficient to justify a modification of a spousal-maintenance award by proving (1) a substantial increase or decrease in a party’s earnings; (2) a substantial increase or decrease in a party’s needs; (3) the receipt of public assistance by a party; or (4) a change in a party’s cost of living, “any of which makes [the existing award] unreasonable and unfair[.]”  Minn. Stat. § 518.64, subd. 2(a).  “Once an obligor establishes he is entitled to modification, the needs of the spouse receiving maintenance must be balanced against the financial condition or ability to pay of the spouse providing maintenance.  A recipient’s needs are often determined by considering her income and available resources versus her reasonable monthly expenses.”  Kemp v. Kemp, 608 N.W.2d 916, 921 (Minn. App. 2000) (citation omitted).  “[T]he essential consideration [in awarding maintenance] is the financial need of the spouse receiving maintenance, and the ability to meet that need, balanced against the financial condition of the spouse providing the maintenance.”  Novick v. Novick, 366 N.W.2d 330, 334 (Minn. App. 1985).

Respondent argues that the reduced amount of spousal maintenance determined by the district court should be affirmed and, therefore, necessarily agrees that there has been a “substantial change in circumstances” since the original award and that such change renders the award unfair and unreasonable.  Thus, the requirements of Minn. Stat. § 518.64, subd. 2, have been satisfied.  Also, respondent did not file a notice of review challenging the decision of the district court that there had been a substantial change in circumstances rendering the existing maintenance award unreasonable and unfair.  Thus, respondent has waived the right to argue that the district court erred in reducing the amount of spousal maintenance to $400 per month.  See City of Duluth v. Duluth Police Local, 690 N.W.2d 357, 359-60 (Minn. App. 2004) (stating that a respondent must file a notice of review in order to obtain review of a district court’s adverse decision). 

Consequently, the statute required that the district court apply the factors set forth in Minn. Stat. § 518.552.  Minn. Stat. § 518.64, subd. 2(c) (2004).  The factors to be considered include financial resources of the party seeking maintenance, and the ability of the person from whom maintenance is sought to pay.  Minn. Stat. § 518.552, subd. 2(a) (2004).  The district court must consider all relevant factors in determining a maintenance award, though it need not make findings regarding each factor.  Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986), review denied (Minn. May 29, 1986).  “While the record may support a trial court’s decision, it is nevertheless inadequate if that record fails to reveal that the trial court actually considered the appropriate factors.”  Moylan v. Moylan, 384 N.W.2d 859, 865 (Minn. 1986).

Here, the district court failed to consider the statutory factors set forth in Minn. Stat. § 518.552, subd. 2.  See, e.g., Moylan, 384 N.W.2d at 865 (remanding where, as here, it is unclear whether the trial court considered factors expressly mandated by the legislature).  Accordingly, we remand to the district court for consideration of the factors set forth in Minn. Stat. § 518.552.

II.

Appellant further contends that the district court failed to make findings of fact, and that the case should be remanded to determine the amount of spousal maintenance.  “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).  A district court’s conclusions are clearly erroneous if they are against logic and unsupported by the facts on the record.  Rutten, 347 N.W.2d at 50.

 Here, the district court failed to make findings concerning the factors set forth in Minn. Stat. § 518.552.  Without adequate findings regarding the parties’ net incomes and reasonable expenses, effective appellate review is impossible.  See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (“Effective appellate review of the exercise of that discretion is possible only when the [district] court has issued sufficiently detailed findings of fact to demonstrate its consideration of all factors relevant to an award of permanent spousal maintenance.”).[1]

Specifically, the district court made findings regarding appellant’s hourly wage, but not the number of hours per week he worked or his annual income.  And the district court prefaced its statements regarding appellant’s cost of living and respondent’s income with “he claims” and “petitioner claims.”  By doing so, the district court is not making true findings but merely reciting the parties’ claims.  Dean v. Pelton, 437 N.W.2d 762, 764 (Minn. App. 1989) (“Reciting the parties’ claims may be helpful in understanding what the district court considered in making its findings; however, the findings themselves must be affirmatively stated as findings of the [district] court.”)

  The district court also found that appellant lives with his significant other but did not analyze the amount of appellant’s expenses that were attributable to her.  The obligor’s ability to pay, including expenses, must be attributable to the obligor himself, not another adult.  See Musielewicz v. Musielewicz, 400 N.W.2d 100, 103 (Minn. App. 1987) (including expenses for adult children of obligor is reversible error), review denied (Mar. 25, 1987); see also Peterka v. Peterka, 675 N.W.2d 353, 358–59 (Minn. App. 2004) (finding that consideration of expenses associated with an obligor’s new family when setting amount of maintenance award was appropriate).  On this record, we are unable to determine whether appellant’s expenses included expenses attributable to his significant other. 

Appellant next argues that the district court erroneously determined respondent’s income based on her 2004 salary of $11,000 rather than her ability to contribute to her own support as measured by her full-time employment capacity.  Here, the district court determined that respondent’s income for 2004 was $11,000, but did not determine whether that was an appropriate amount to use for her yearly income.  

Consequently, we conclude that the district court abused its discretion by not evaluating the factors under Minn. Stat. § 518.552, and by failing to make necessary findings of fact and conclusions of law to determine the proper amount of spousal maintenance, we remand for further proceedings consistent with this opinion.  The district court may reopen the record to conduct an evidentiary hearing but is not required to do so. 

            Reversed and remanded.