This opinion will be unpublished and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

A05-1606
A05-2429

 

In re the Marriage of:

Joseph James Flaherty,

petitioner,

Respondent,

 

vs.

 

Barbara Jean Flaherty,

Appellant.

 

Filed June 27, 2006

Affirmed in part, reversed in part, and remanded
Klaphake, Judge

 

Ramsey County District Court

File No. F3-98-847

 

Debra E. Yerigan, Karen B. Andrews, Steven P. Aggergaard, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN  55402 (for respondent)

 

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge, Klaphake, Judge, and Ross, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Barbara Jean Flaherty challenges the district court’s order on remand from this court (1) reversing the district court’s prior award of permanent maintenance of $5,600 per month and reinstating the temporary maintenance award of $3,500 per month nunc pro tunc to May 2002; (2) terminating temporary maintenance as of June 1, 2005; (3) denying appellant’s motion for permanent maintenance and imputing income to her; and (4) requiring appellant to reimburse respondent Joseph James Flaherty in the amount of $31,500, the difference between the prior permanent maintenance award and the order on remand for temporary maintenance nunc pro tunc to May 2002.  See Flaherty v. Flaherty, No. A03-1101 (Minn. App. Mar. 16, 2006).

            We affirm the district court’s order imputing income to appellant based on her failure to use reasonable efforts to rehabilitate and become employed.  But because the district court’s findings regarding appellant’s imputed investment income, her ability to be self-sufficient, and her reasonable needs are clearly erroneous, we reverse and remand, with instructions to the district court to determine the amount of investment income appellant can reasonably expect from her marital assets and to order permanent maintenance to cover the gap between appellant’s imputed income and investment income, and her reasonable needs.  We further reverse the district court’s order for reimbursement, because our remand order was intended to be prospective, rather than retroactive.

D E C I S I O N

            The appellate court reviews the district court’s maintenance award for an abuse of discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  The district court abuses its discretion if its findings of fact are unsupported by the record or if it improperly applies the law.  Id.  Findings of fact are reviewed for clear error.  Minn. R. Civ. P. 52.01.

            The court may award maintenance if, in light of the marital standard of living, one party lacks sufficient property to provide for his or her needs, or one party is unable to provide adequate self-support through employment.  See Minn. Stat. § 518.552, subd. 1 (2002).[1]  The court may order temporary or permanent maintenance, in varying amounts or for different periods of time, after considering the following factors:  (1) the financial resources of the party seeking maintenance, including marital property, and ability to meet his or her needs; (2) the time necessary to retrain or find appropriate employment; (3) the standard of living during the marriage; (4) the duration of the marriage; (5) the loss of earnings and employment opportunities forgone by the party seeking maintenance; (6) the age, and physical and emotional health of the obligee; (7) the ability of the obligor to meet his or her own needs as well as the obligee’s; and (8) the contribution of each party to the acquisition or preservation of the marital property.  Id., subd. 2.  The statute favors permanent maintenance over temporary maintenance in the case of uncertainty, requiring “the court [to] order a permanent award leaving its order open for later modification.”  Id. at subd. 3. 

            The district court found that (1) based on her prior job, appellant had the ability to earn $45,000 per year at the time of the dissolution; (2) she was awarded temporary rehabilitative maintenance in order to become healthy and secure employment, but failed to make a good faith effort, or any effort, to do so; (3) she received income-producing marital assets for her support, but depleted them by spending excessively in a manner that exceeded the marital standard of living; (4) appellant could have received $1,000 per month from investment income had she invested it; (5) appellant is not disabled and is able to work; (6) the maintenance received by appellant included 36 months more maintenance than anticipated by the judgment and decree; (7) appellant had the ability to earn between $32,000 and $35,000 at the time of the 2002 hearing; (8) appellant has no housing or auto debt and has reasonable monthly expenses of $4,907 per month; and (9) respondent has a monthly income of $8,831 and monthly expenses of $6,072.  The district court concluded that “[i]ncome sufficient to meet her reasonable monthly expenses should be imputed to [appellant].”

            The parties agreed that appellant’s reasonable monthly expenses are $4,907 and that this figure should include an additional $471 per month for income taxes, for a total of $5,378 per month.  The district court imputed earnings income of $35,000 per year, based on the testimony of vocational counselor Phil Haber, and $1,000 per month of investment income to be derived from appellant’s award of marital property.  The district court gave no basis for its finding that appellant could reasonably have expected to receive $1,000 in investment income.  The district court also found that the imputed earnings and investment income would permit appellant to meet her reasonable needs of $5,378 per month.  But imputed income of $35,000 per year yields a monthly income of $2,917, which, when added to the imputed investment income, results in a monthly income of $3,917, well short of what all agree are appellant’s reasonable needs.  Thus, to the extent that these findings are not supported by the record, they are clearly erroneous.  See Dobrin, 569 N.W.2d at 202.

            The district court did not err, however, by imputing income to appellant.  By terms of the stipulation between the parties and the dissolution judgment, appellant was obligated to use reasonable efforts to become self-sufficient and employed, but she failed to make even the slightest attempt to do so.  Under these circumstances, imputation of income is proper.  See Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997).  But as in Hecker, even when income is imputed to appellant, there is a gap between her resources and her reasonable needs.  It is also clear from the district court’s findings that respondent has the ability to contribute toward appellant’s financial needs. 

            We conclude that the district court abused its discretion by failing to award permanent maintenance in an amount that would close that gap.  We therefore reverse the district court’s order terminating maintenance and instruct the district court on remand to determine the amount of investment income appellant reasonably could expect to receive from her marital assets, the amount of the shortfall between appellant’s imputed earnings and investment income and her reasonable financial needs, and the ability of respondent to meet this shortfall.  Once this figure is established, we instruct the district court to order permanent maintenance to cover the gap between appellant’s imputed earning and investment income and her reasonable needs, in light of respondent’s ability to pay.  We intend this order to be prospective, from the date of the district court’s new order.

            We reverse the district court’s order for reimbursement of the difference between the permanent maintenance paid and the temporary maintenance ordered nunc pro tunc to May 2002.  Our remand order of March 16, 2004, was intended to be prospective, to extend temporary maintenance forward until the district court could establish the appropriate type and amount of maintenance.  In this instance, a nunc pro tunc order, which is generally limited to correction of clerical errors or omissions from the record, was not appropriate.  See Hampshire Arms Hotel Co. v. Wells, 210 Minn. 286, 288, 298 N.W. 452, 453 (1941); Medtronic, Inc. v. Advanced Bionics Corp., 630 N.W.2d 438, 447-48 (Minn. App. 2001).

            Affirmed in part, reversed in part, and remanded.