STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2398

In re the Marriage of:
Michelle E. Li-Kuehne, petitioner,
Appellant,

vs.

Stephen E. Kuehne,
Respondent.

Filed September 19, 2006

Reversed and remanded

Wright, Judge

Stearns County District Court

File No. F9-01-2106

Kevin L. Holden, Holden Law Offices, 816 West St. Germain, Suite 102, P.O. Box 1823, St. Cloud, MN 56302 (for appellant)

Russell R. Cherne, Pennington & Lies, P.A., 1111 North First Street, P.O. Box 1756, St. Cloud, MN 56302 (for respondent)

Considered and decided by Ross, Presiding Judge; Shumaker, Judge; and Wright, Judge.

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

WRIGHT, Judge

Appellant argues that the district court misapplied the law and misinterpreted the parties’ stipulation when it denied her motion for a spousal-maintenance cost-of-living adjustment. We reverse and remand.

FACTS

The marriage between appellant Michelle Li-Kuehne and respondent Stephen Kuehne was dissolved by judgment and decree entered on June 11, 2003. The judgment and decree, which incorporated the parties’ agreement regarding spousal maintenance, provides that respondent will pay appellant spousal maintenance of $12,500 per month from March 1, 2003, through August 31, 2006, and $10,000 per month from September 1, 2006, through August 31, 2009. The decree also provides that, “[d]uring the period of March 1, 2003 through August 31, 2009 the issue of spousal maintenance shall not be modifiable and the Court is without jurisdiction to modify spousal maintenance . . . .”

In July 2005, appellant moved the district court for a cost-of-living adjustment (COLA) to her spousal maintenance, as well as other relief. In its order dated October 18, 2005, the district court found that the parties’ agreement included “no explicit waiver of the cost-of-living adjustment,” was ambiguous regarding whether spousal maintenance was subject to a COLA, “makes no mention that the amount would be modified based on any cost-of-living adjustments,” and “that the parties did not intend the spousal maintenance to be subject to cost-of-living adjustments.” The district court, therefore, denied appellant’s motion for a spousal-maintenance COLA and reserved other pending issues for future review.

Appellant filed this appeal on December 7, 2005. On January 13, 2006, the district court issued its final order addressing the remaining issues. On February 7, 2006, this court accepted jurisdiction and allowed the appeal to proceed.

D E C I S I O N

Appellant argues that the district court erred when it denied her motion for a spousal-maintenance COLA. The district court has broad discretion over spousal-maintenance issues and will not be reversed absent an abuse of discretion. Santillan v. Martine, 560 N.W.2d 749, 750 (Minn. App. 1997). A district court’s findings of fact will not be disturbed unless clearly erroneous. Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). But subject-matter jurisdiction and the interpretation of statutes present legal issues, which we review de novo. Santillan, 560 N.W.2d at 750.

“An order establishing, modifying, or enforcing maintenance or child support shall provide for a biennial adjustment in the amount to be paid based on a change in the cost of living.” Minn. Stat. § 518.641, subd. 1(a) (2004).

A court may waive the requirement of the cost-of-living clause if it expressly finds that the obligor’s occupation or income, or both, does not provide for a [COLA] or that the order for maintenance or child support has a provision such as a step increase that has the effect of a cost-of-living clause. The court may waive a [COLA] in a maintenance order if the parties so agree in writing.

Id., subd. 1(b) (2004); see Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (stating that cost-of-living provision is mandatory and omission of provision without statutorily required findings is error, but declining remand because effect of error was de minimis). Every court order awarding spousal maintenance must contain certain notices, including a notice regarding the COLA statute. Minn. Stat. § 518.68, subds. 1, 2 (2004).

Parties to a dissolution action may expressly agree to waive the right to seek modification of a maintenance award if (1) the district court finds that the agreement is fair, equitable, supported by consideration, and the parties have made a full disclosure of their financial circumstances; and (2) the agreement is incorporated into the judgment and decree. Minn. Stat. § 518.552, subd. 5 (2004); see Minn. Stat. § 518.64, subd. 2 (2004) (governing motions to modify maintenance); Loo v. Loo, 520 N.W.2d 740, 745 n.5 (Minn. 1994) (noting that Karon waivers must include express waiver-of-rights language as well as divestiture-of-jurisdiction language); Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989) (holding that judgment and decree incorporating parties’ agreement to waive right to seek modification of maintenance and divesting court of jurisdiction over issue precluded modification of maintenance under section 518.64); Santillan, 560 N.W.2d at 751 (holding that purported divestiture of subject-matter jurisdiction over maintenance modification was ineffective because stipulated judgment and decree lacked specific findings required by section 518.552, subdivision 5). But absent a clear expression of a party’s intent to waive a statutorily created right, a court cannot infer a waiver. Keating v. Keating, 444 N.W.2d 605, 607-08 (Minn. App. 1989), review denied (Minn. Oct. 25, 1989); see Gessner, 487 N.W.2d at 923 (noting that waiver of rights under section 518.64 and divestiture of jurisdiction must be express and cannot be inferred).

A maintenance-modification motion under section 518.64 is different from a COLA request under section 518.641. See McClenahan v. Warner, 461 N.W.2d 509, 511 (Minn. App. 1990) (noting that COLA request is not the same as modification proceeding, which requires a showing that the award has become unreasonable and unfair, fulfills different purposes, and provides different types of relief); Hadrava v. Hadrava, 357 N.W.2d 376, 378-79 (Minn. App. 1984) (addressing request for modification separately from request for COLA).

The parties’ agreement regarding spousal maintenance, which was incorporated into the judgment and decree, was silent regarding a COLA. However, as required by section 518.68, the statutory notice regarding COLAs was attached to the judgment and decree at Appendix A and states that “maintenance may be adjusted every two years based upon a change in the cost of living” under section 518.641. The judgment and decree was, therefore, not silent regarding a COLA, but rather included the required COLA notice. Although Appendix A was not expressly addressed in the spousal-maintenance portion of the judgment and decree, it was incorporated by reference in the section addressing child support.

There is nothing in the record that would support the district court’s denial of appellant’s COLA request under any of the exceptions listed in section 518.641. The district court did not find that respondent’s occupation did not provide for COLAs; the spousal-maintenance award does not have a step increase; and the parties did not agree in writing to waive the COLA. See Minn. Stat. § 518.641, subd. 1(b) (enumerating bases for district court’s waiver of COLA). And absent an express waiver by the parties, the district court cannot infer waiver of a statutory right. Keating, 444 N.W.2d at 607-08.

The parties agreed to a Karon waiver, which clearly precludes the parties from seeking a modification of maintenance and specifically states that the district court is “without jurisdiction to modify spousal maintenance pursuant to [Karon and Santillan].” But the Karon waiver cannot be read to preclude “adjustments” under section 518.641, since a motion for modification is not the same as a request for a COLA. McClenahan, 461 N.W.2d at 511.

Because the COLA notice was incorporated into the judgment and decree by its inclusion in Appendix A, the statutory exceptions to a COLA do not apply, the Karon waiver does not apply to a COLA request, and waiver of the statutory right to a COLA cannot be inferred in the absence of an express waiver, the district court erred by denying appellant’s motion for a spousal-maintenance COLA. We, therefore, reverse and remand. In doing so, we observe that, in its October 2005 order, the district court granted appellant’s July 2005 motion for a child-support COLA and made the adjustment effective July 1, 2005. While we decline to calculate the appropriate amount and effective date for the spousal-maintenance COLA, we direct the district court to award the spousal-maintenance COLA in the amount and as of the date that would have applied had the district court granted appellant’s motion in the October 2005 order.

Reversed and remanded.