STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1047

In re the Marriage of:
Jonathan C. Grimes, petitioner,
Respondent,

vs.

Rhonda Lynn Grimes,
Appellant.

Filed June 5, 2007

Affirmed

Stoneburner, Judge

Washington County District Court

File No. F1041652

Edward L. Winer, James J. Vedder, Moss & Barnett, P.A., 4800 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN 55402-4129 (for respondent)

Carl A. Blondin, Hazelwood Professional Center, Suite 404, 2785 White Bear Avenue North, Maplewood, MN 55109 (for appellant)

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

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

STONEBURNER, Judge

In this dissolution proceeding, appellant wife asserts that the district court abused its discretion by awarding insufficient temporary maintenance to meet her necessary monthly expenses and by failing to provide “rehabilitative maintenance” to cover the costs of her education plan. Because, on the record before us, we cannot conclude that the district court abused its discretion, we affirm.

FACTS

Appellant Rhonda Lynn Grimes (wife) and respondent Jonathan C. Grimes (husband) were married in November 1993. Husband petitioned for dissolution of the marriage in February 2004. The parties separated in June 2004. After a four-day trial, their marriage was dissolved in November 2005. At the time of trial, wife was 39 years old, and husband was nearly 41 years old. The parties have two minor children, born in 1994 and 1998, and wife has an older child from a previous relationship. At the time of trial, wife was receiving $780 per month in child support for this child, but the record reflects that he soon will be emancipated.

The parties agreed to joint legal custody and to wife’s sole physical custody of their children. Husband agreed to pay $2,093 per month in child support, consistent with the child-support guidelines in effect at the time of the decree.

Husband is an emergency-room physician, who, three months prior to filing for dissolution, reduced his hours of employment from full time to two-thirds of full time. Husband works through HealthEast at St. John’s Hospital. Husband reduced his working hours based on the recommendation of his doctor, after experiencing serious stress and fatigue. Husband’s doctor testified that the reduction in hours was effective in alleviating husband’s stress and noted that a less than full-time work schedule is not uncommon among emergency-room physicians. The district court found husband’s work schedule to be “sensible and necessary” and not designed to artificially lower his earnings in the context of the dissolution. The district court found that husband elected to work more hours at times during the divorce proceedings to meet increased expenses incident to the proceedings, “namely attorney’s fees.”

The district court found that husband’s net monthly income is $8,247 and that reasonable living expenses for husband and the children are $5,000 per month, which is $530 less than the amount of monthly expenses claimed by husband. The district court found that including expenses for the children in husband’s monthly budget was reasonable based on the parenting-time schedule.

Wife was occupied as a homemaker during the marriage, but during the separation, from late 2004 until February 2005, wife worked part-time through a temporary services agency, earning $10 per hour. At trial, wife presented an education plan for completing her bachelor of arts (BA) degree and obtaining her master of arts (MA) degree in psychology by December 2009. Under the plan, wife would take two classes per semester and one class during the summer. Wife introduced evidence that the cost of obtaining her MA will be $22,000. The district court did not make a finding about the cost of wife’s education plan.

Wife underwent a vocational evaluation. Based on the testimony of the evaluator, the district court found that, at the time of trial, wife had the ability to earn $10 to $12 per hour, resulting in a monthly net income of between $1,400 and $1,660. The district court found that if wife obtains her master’s degree as planned within four years, she could reasonably be expected to earn a gross annual income of $34,000.

The district court found wife capable of partially providing for her own support at the time of the dissolution and eventually becoming self-supporting. The district court found that it “is reasonable for [wife] to become employed immediately while at the same time completing her education to enhance her employability and income.” But the district court noted that although wife’s education plan indicated that wife was to be enrolled in school by September 2005, she was not registered as of the time of the trial. Additionally, wife had not worked since February 2005. The district court stated that wife “has not impressed this court as sincerely committed to the idea of working, prompting some concern [that wife] will not obtain her degrees and employment unless required to do so.”

Wife claimed monthly living expenses for herself and the children of $7,563. She testified that this amount included some, but not all, of the expenses for her oldest child. Wife’s financial expert testified that, in order to avoid debt, both parties would need to reduce their living expenses even if husband were to work full time. Despite the obvious need to reduce expenses, wife incurred over $40,000 in credit-card debt during the dissolution proceedings while she was receiving $4,825 per month in temporary child support and maintenance from husband, marital assets of $44,498 for attorney fees, and $780 per month in child support for her oldest child. The district court found that wife’s reasonable monthly living expenses should be approximately $5,500, which does not include any amount for the cost of wife’s educational plans. The district court considered all of the relevant statutory factors and awarded wife maintenance in the amount of $1,200 per month for five years, an amount that, coupled with the income that the district court found wife capable of earning and child support for all three children, meets the expenses found reasonable by the district court. The district court stated in its memorandum that the award was designed to give wife an incentive to accelerate her education plan. After paying child support and maintenance, husband’s net monthly income is slightly less than his reasonable monthly expenses found by the district court.

Finding that there was good cause to award wife a greater share of the marital investments because she “will be less capable than [husband] to accumulate retirement assets, she carries more debt, and she will be paying tuition for her education,” the district court divided one of the investment accounts one-third to husband ($12,433) and two-thirds to wife ($24,863). Otherwise, the district court appears to have divided the marital assets equally. But because values were not assigned to most of the marital assets, because the bulk of personal property was divided by a separate, agreed-on arbitration proceeding, and because the decree does not include any comparison of the total value of assets awarded to each party, this court is unable to review the actual value of property awarded to either party.

The district court denied wife’s motion for amended findings of fact or a new trial, and this appeal, challenging only the amount of the maintenance award, followed.

D E C I S I O N

I. Standard of Review

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). 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. Id. at 202 & n.3. “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); see also Minn. R. Civ. P. 52.01.

II. Amount of Maintenance

Wife does not contest the fact that the maintenance award is temporary or the duration of temporary maintenance for five years. But wife asserts that the district court abused its discretion when it awarded only $1,200 per month, leaving a significant shortfall between her income and reasonable expenses. When setting the amount and duration of a maintenance award, a district court must consider the following factors:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party’s ability to meet needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the probability, given the party’s age and skills, of completing education or training and becoming fully or partially self-supporting;

(d) the duration of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, or experience have become outmoded and earning capacity has become permanently diminished;

(e) the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;

(f) the age, and the physical and emotional condition of the spouse seeking maintenance;

(g) the ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance; and

(h) the contribution of each party in the acquisition, preservation, depreciation, or appreciation in the amount or value of the marital property, as well as the contribution of a spouse as a homemaker or in furtherance of the other party’s employment or business.

Minn. Stat. § 518.552, subd. 2 (2006). The district court made findings on each of these factors, and wife does not allege that any of the district court’s findings are clearly erroneous.

Nonetheless, wife argues that she should have been awarded at least $2,000 per month in “temporary maintenance” to meet the $5,500 in expenses found reasonable by the district court, plus an additional amount for “rehabilitative maintenance” to cover the cost of her education. Although wife implies a distinction between “temporary maintenance” and “rehabilitative maintenance,” caselaw does not make such a distinction. See Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987) (stating that “[a]n award of temporary maintenance is based on the assumption that the party receiving the award not only should strive to obtain suitable employment and become self-supporting but that he or she will attain that goal”); see also Minn. Stat. § 518.552, subd. 2 (stating that “[t]he maintenance order shall be in amounts and for periods of time, either temporary or permanent”). We understand wife’s argument to be that maintenance should have been awarded in an amount that covered funding for her education in addition to her reasonable living expenses.

Under the decree, wife will receive maintenance and child support from husband in the amount of $3,293 per month. Until her oldest child reaches majority, she will continue to receive $780 per month for his support,[1] leaving a shortfall of approximately $1,427 between support payments and monthly expenses of $5,500. Because wife will be taxed on the maintenance that she receives, the actual shortfall will be greater. The district court found that wife was capable of earning between $1,400 and $1,660 net per month if she works full time. Wife’s anticipated income, including support for the oldest child, is sufficient, if barely, to meet her reasonable expenses if she reduces her monthly expenses for herself and three children to $5,500. Wife argues that it is unfair that she is expected to work full time, parent full time, and simultaneously pursue her education plan, “especially when the parties’ history was that she was a full time, stay-at-home mom.” Although we are not unsympathetic to wife’s argument, based on the record and the fact that both parties will need to substantially reduce expenses, we cannot conclude that the district court abused its discretion in determining the amount of temporary maintenance.

Wife asserts that the district court should not have imputed income to her, relying on Carrick v. Carrick, in which this court stated:

There is no authority for finding bad faith underemployment at the time of an initial award of maintenance merely because a potential obligee has not yet rehabilitated when the record indicates the obligee has continued in the same employment and there is no evidence of an intent to reduce income for the purposes of obtaining maintenance.

560 N.W.2d 407, 410-11 (Minn. App. 1997). But Carrick involved a marriage of more than 21 years, and the district court found that a 49-year-old homemaker acted in bad faith by remaining intentionally underemployed. Id. at 411. By contrast, the record in this case contains evidence of wife’s current earning capacity, and wife presented evidence of her desire and plan to become self-supporting. The district court did not make a finding of bad-faith underemployment or impute income to wife in excess of the income that record shows she can actually earn. Rather the district court correctly considered her resources and her current ability to meet needs independently, as required by Minn. Stat. § 518.552, subd. 2(a). Cf. Schallinger v. Schallinger, 699 N.W.2d 15, 22 (Minn. App. 2005) (differentiating between imputation of income for bad faith and consideration of an obligee’s “general ability to be self supporting”), review denied (Minn. Sept. 28, 2005).

Wife also argues that the district court clearly erred by finding that it is reasonable for husband to work less than full time. In determining whether an obligor is underemployed in bad faith, “[t]he trial court must look at the obligor’s ability to work, opportunity to find gainful employment, disposition and will to earn money and contribute a reasonable amount to the family’s support, and diligence in seeking employment.” Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991).

In this case, the district court’s finding is supported by the testimony of husband and two other doctors that husband experienced “serious stress and fatigue” from working full time, and that these symptoms were relieved by the reduced work schedule. The district court found the doctors’ testimony regarding the adverse health effects of working full time in the emergency room to be “real and unexaggerated.” Because the record supports the district court’s finding, the district court did not clearly err by finding that husband’s two-thirds schedule is reasonable. See Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (deferring to the district court’s assessment of credibility). The district court also noted that even though he is not working full-time, husband’s earnings are “very high.”

Wife asserts that the district court abused its discretion when it did not properly account for her educational expenses in the maintenance award. Because wife did not include education expenses in her monthly budget, husband asserts she has waived this argument on appeal. But we conclude that wife sufficiently raised the issue of the cost of the education plan to preserve the issue for appeal. See Jacobson v. $55,900 in U.S. Currency, 728 N.W.2d 510, 523 (Minn. 2007) (holding that refinement of an argument made to the district court does not constitute a new argument on appeal).

The district court awarded wife approximately $12,000 more in liquid marital assets than it awarded husband, specifically noting wife’s need for funds for her education plan. Additionally, the district court awarded maintenance for five years despite finding that wife could complete her education plan in substantially less time. The district court’s choice to address wife’s education expenses through the property award and length of the maintenance award is not an abuse of discretion.

Although not raised in her initial brief, wife asserts in her reply brief that even though she was awarded more of one of the investments than husband, the overall property award did not give her more assets than husband because husband was awarded a vehicle valued at $20,725 and wife was awarded a vehicle with a marital value of $10,740, making the property division essentially equal, contrary to the district court’s assertion that it was awarding more of the marital assets to wife. But, as noted above, on the record before us, we are unable to compare the total value of marital assets awarded to the parties. Additionally, wife did not appeal the property division.

Although there is evidence in the record that would have supported a larger maintenance award, this court does not substitute its judgment for that of the district court when there is evidence in the record to support the district court’s determination. See Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (stating that the reviewing court views evidence in the light most favorable to the district court’s findings and may not substitute its judgment if the record reasonably supports the findings).

Affirmed.

[1] In theory, when the oldest child reaches majority, wife’s monthly expenses should be reduced. In any event, any continuing need for support for this child is not husband’s responsibility.