This opinion will be unpublished and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

A05-2512

 

Stanley Ralph Herman, petitioner,

Respondent,

 

vs.

 

Sharon Diane Herman, n/k/a Sharon Diane Haneman,

Appellant.

 

Filed September 12, 2006

Affirmed

Halbrooks, Judge

 

 

Hennepin County District Court

File No. DC 241070

 

 

Cynthia D. Stricker, Fredrikson & Byron, P.A., 200 South 6th Street, Suite 4000, Minneapolis, MN 55402 (for respondent)

 

Sharon Diane Herman, n/k/a Sharon Diane Haneman, 4580 Pine Street, Medina, MN 55359 (pro se appellant)

 

 

            Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant challenges the district court’s order affirming the family court referee’s denial of her motion to modify spousal maintenance.  Appellant argues that the maintenance award is unreasonable and unfair under Minn. Stat. § 518.64 (2004) because both respondent’s income and her needs have substantially increased, and, therefore, the district court abused its discretion by denying her motion.  Because we conclude that the district court did not abuse its discretion, we affirm. 

FACTS

            Appellant Sharon Herman n/k/a Sharon Haneman and respondent Stanley Herman were married in 1975.  The marriage was dissolved on May 8, 2000.  In the dissolution judgment, the district court ordered respondent to pay appellant permanent spousal maintenance in the amount of $1,100 per month.  While the district court amended the judgment and decree in November 2000, no change was made to the permanent-spousal-maintenance award.  Appellant subsequently challenged the dissolution property settlement by an appeal to this court but did not contest the spousal-maintenance award.

            While that matter was still pending, appellant moved to modify spousal maintenance on March 1, 2001, seeking $3,500 per month and periodic cost-of-living increases.  Appellant also moved the district court to order respondent to increase his life-insurance policy to $750,000, naming appellant as the beneficiary.  The district court denied the motion in its entirety, concluding that appellant failed to make the requisite showing of a substantial change of circumstances under Minn. Stat. § 518.64 (2004) and that appellant was attempting to relitigate issues resolved in the amended judgment.

            On June 8, 2001, appellant moved the district court to compel respondent to produce certain documents, for a hearing based on respondent’s alleged misconduct and/or fraud, for amended findings, and for attorney fees.  The district court denied appellant’s motion in its entirety, specifically noting that appellant waived her right to further discovery when she advised the district court at the first motion hearing that she wanted to proceed that day in spite of outstanding discovery requests.

            Appellant’s third motion to increase spousal maintenance was heard by the district court on July 26, 2002.  Appellant sought, among other things, to increase her monthly maintenance from $1,184 to $7,500.  The district court granted in part and denied in part the motion regarding spousal maintenance.  The district court increased appellant’s maintenance to $2,378 per month as a result of a substantial increase in respondent’s income.  (This order was subsequently amended in January 2003 for a calculation error, making the monthly spousal-maintenance award $2,545.)  But in addition, the district court sanctioned appellant in the amount of $1,500 for attorney fees pursuant to Minn. Stat. § 518.14 (2004).  The district court also expressed its concern that appellant’s litigation conduct should be closely scrutinized by judicial officers in the future.

            On January 21, 2003, appellant moved for amended findings or new trial and for an increase in spousal maintenance.  The district court summarily denied the motion because appellant’s affidavit showed no substantial change of circumstances under Minn. Stat. § 518.64.

            Litigation surrounding appellant’s fifth motion for modification commenced in August 2003.  Appellant sought production of financial documents from respondent, moved to have respondent found in contempt, and obtained an ex parte order compelling respondent’s appearance at a deposition, despite not first notifying respondent of her intentions.  Then, on September 12, 2003, appellant moved for an increase in spousal maintenance, among other requests.  Respondent countered with a motion for sanctions.  Following respondent’s motion, on October 21, 2003, appellant responded by filing an additional motion, again seeking an increase in spousal maintenance. 

            Following a hearing on November 5, 2003, the family court referee granted respondent’s motion for sanctions under Minn. R. Gen. Pract. 9 on the ground that appellant is a frivolous litigant.  In addition, the family court referee ordered that appellant obtain the approval of the chief judge of the family court before filing any future request, claim, or motion.  As a result, the family court referee declined to make a determination of the merits of appellant’s requests for increased maintenance and increase in the amount of life insurance that respondent is required to maintain to secure the maintenance obligation until such time as appellant had the chief judge’s permission to proceed.  Finally, the family court referee ordered appellant to pay $5,000 of respondent’s attorney fees, based on Minn. R. Gen. Pract. 9 and Minn. Stat. § 518.14.

The chief judge referred the matter back to the family court referee for a determination of whether appellant’s status as a “frivolous litigant” should prevent her from moving for modification of her spousal maintenance.  In response, appellant filed a notice of objection to all referees.  In an order dated July 13, 2005, the family court denied appellant’s request to remove all referees on the ground that it was untimely under Minn. R. Civ. P. 63.03.  On the merits of appellant’s motion, the referee determined that there was no valid basis for modification because, even assuming that respondent’s income had increased, appellant’s asserted increased needs—a new vehicle, improvements to her home in anticipation of a sale, and income to invest—were insufficient.  As a result, the family court denied appellant’s motion.  Appellant then moved for review by the district court.  The district court affirmed the referee’s decision in its entirety.  This appeal follows.

D E C I S I O N

            Appellate courts review a district court’s maintenance award under an abuse-of-discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997); Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989); Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  Whether to modify maintenance is discretionary with the district court.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion regarding maintenance if its findings of fact are unsupported by the record or if it improperly applies the law.  Dobrin, 569 N.W.2d at 202 & n.3 (quoting Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).  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).

By 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) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party . . . ; (3) receipt of assistance under the AFDC program . . . ; [or] (4) a change in the cost of living for either party . . . any of which makes [the existing award] unreasonable and unfair.”  Minn. Stat. § 518.64, subd. 2(a) (2004) (emphasis added). 

It is the moving party’s burden to demonstrate a substantial change of circumstances under Minn. Stat. § 518.64, subd. 2 (2004).  Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987).  “The failure to show such a change precludes a modification of maintenance obligations under Minn. Stat. § 518.64, subd. 2.  Therefore, it is not necessary for the [district] court to make findings regarding any other factors addressed in the statute.”  Id. 

Here, appellant argues that the district court abused its discretion by denying her motion to modify the spousal-maintenance award because it understated appellant’s needs, misapplied the statutory factors, overstated the income she is able to earn (based on the district court’s finding in the dissolution judgment that as a CPA, she has the present capacity to earn at least $10,000 per year), and misunderstood her financial circumstances.  Essentially, appellant reasserts her argument that because both respondent’s income and her needs have greatly increased, she is entitled to an increase in spousal maintenance.

The referee noted in his order that an increase in respondent’s income alone is an insufficient ground on which to base a modification of spousal maintenance, citing Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (holding that a spouse’s ability to pay more maintenance does not alone justify an increase). 

First, regarding appellant’s desire to purchase a new motor vehicle, the referee found that as part of the property settlement, appellant received her current vehicle free and clear.  Thus, appellant has not had to make a monthly car payment for the nearly six years since the dissolution and could have been setting aside money toward the purchase of a new vehicle.

Second, the referee found that appellant’s desire to make improvements to her home are either the result of normal wear and tear or the fact that appellant is planning to sell her home and move to California.  The referee found that simple wear and tear is foreseeable and does not constitute a substantial change of circumstances.  In addition, the referee noted that cosmetic improvements designed to aid in the sale of a home are typically recouped in the sale price.

Finally, the referee found that spousal maintenance is not intended to ensure against appellant’s failure to make prudent investment decisions.  The referee noted that it is appellant’s responsibility to invest for her future and that, as a trained CPA, she has the background to do so.  The referee also noted appellant’s failure to detail what reasonable efforts she had made in the preceding five years to earn at least $10,000 per year.

Appellant alleges that the referee’s reliance on Lyon is misplaced because it is not good law in light of Peterka v. Peterka, 675 N.W.2d 353 (Minn. App. 2004).  In support of her assertion, appellant relies on the statement in Peterka that “if a substantial increase in the income of a maintenance obligor renders the existing maintenance award unreasonable and unfair, a maintenance obligation can be modified, despite the lack of an increase in the maintenance recipient’s reasonable monthly expenses.”  675 N.W.2d at 359.  But appellant’s argument is without merit.

First, Peterka cannot overrule Lyon, as Lyon is a supreme court case and Peterka is a court of appeals case.  Second, appellant ignores the fact that an increase in the obligor’s income only serves as a basis for a modification if it “renders the existing maintenance award unreasonable and unfair.”  Id.  Appellant has not shown that to be the case.  As the referee noted, appellant is trained as a CPA.  Although she has been out of the workforce for many years, she has continued to prepare income taxes almost every year; so she has the skills to re-join the workforce if she wished.  Based on the record before us, the district court acted within its discretion by denying appellant’s motion.

            Affirmed.