Paul R. Johnson, Tillitt McCarten Johnson Drummond & Haseman, Ltd., 801 Broadway, P.O. Box 188, Alexandria, MN 56308 (for Respondent)

Considered and decided by Parker, Presiding Judge, Huspeni, Judge, and Schumacher, Judge.

Appellant contests the denial of his motion for termination of spousal maintenance. Because appellant failed to adequately rebut respondent's claim that he retired in bad faith, we find no abuse of discretion and affirm.

On July 1, 1996, appellant voluntarily retired at 60 years of age. He began receiving income from his teacher's retirement account, and he began paying for his own medical insurance. Although he is also covered under the social security program, he will not be eligible to receive social security payments until the age of 62. Based on his reduced income, appellant moved to eliminate his maintenance obligation and to terminate his obligation to provide life insurance. The district court denied appellant's motions, finding a substantial change in circumstances, but also finding that the original order was not unreasonable or unfair because appellant had retired early in bad faith.

A court may modify spousal maintenance upon a showing of substantially increased or decreased earnings of a party that makes the terms of the decree unreasonable and unfair. Minn. Stat. § 518.64, subd. 2 (1996). The district court determined that there had been a significant change in appellant's circumstances. Indeed, the record supports the trial court's findings that appellant's net monthly income prior to retirement was $2,800 and his current gross monthly income is approximately $1,862. The trial court, however, refused to modify appellant's maintenance obligation because it found that:

Respondent has made a colorable claim that [appellant] has retired in bad faith, and [appellant] has made no attempt to seek other employment, and has not met his burden to prove by a preponderance of the evidence that his retirement is in good faith[.] [T]his Court is forced to find that [appellant] has retired in bad faith.

In addressing appellant's argument, we note that when a party's income shifts from wage income to income generated from property rights previously awarded,[1] generally there has been a substantial change in circumstances justifying reduction in maintenance. See Kruschel v. Kruschel, 419 N.W.2d 119 (Minn. App. 1988) (holding award of maintenance should be modified only upon clear proof of facts showing substantial change of circumstances when income received from pension fund awarded in original property division is treated as equivalent to employment income). A reduction in maintenance, however, is not automatic when an obligor retires. Richards v. Richards, 472 N.W.2d 162, 165 (Minn. App. 1991). When an obligor voluntarily creates a change of circumstances, the district court should consider the obligor's motives. Id. at 164. If the maintenance obligor changes jobs in good faith, the obligee should share in the hardship as they would have if they had remained together. Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn. 1982). But, where a maintenance obligee raises a colorable claim of bad faith regarding an obligor's early retirement, the obligor must show, by a preponderance of the evidence, that the retirement decision was not primarily influenced by an attempt to decrease or eliminate the maintenance obligation. Richards, 472 N.W.2d at 165.

Even if we were to assume that appellant worked a sufficient number of years to be entitled to maximum pension benefits and is, in fact, now receiving those maximum benefits, there is no question that appellant retired voluntarily before he was eligible to receive even reduced social security payments. Also, he has not attempted to acquire other employment. We believe the trial court was within its discretion to find that respondent had raised a colorable claim of bad faith.

When determining whether an obligor rebutted a claim of bad faith retirement, the district court should consider the obligor's health and employment history, availability of and expectations regarding early retirement at the time of divorce, prevailing managerial policies and economic conditions at the time of the divorce, and prevailing managerial policies and economic conditions at the time of retirement, together with whatever subjective reasons the obligor may offer. Richards, 472 N.W.2d at 165. To rebut the claim, appellant submitted an affidavit claiming that he voluntarily retired because of his health, stress, and age; that he is 60 years old, that he has high blood pressure, is on a low sodium diet, and his hypertension has been negatively affected by the stress of his employment as a school principal. Appellant also alleged that during the marriage to respondent he discussed retiring at the age of 57, and would have retired then, even if he had remained married to respondent.

The district court concluded that appellant failed to prove that he did not act in bad faith when he voluntarily retired. While considering the factors enumerated in Richards, the court found it significant that appellant failed to offer any supporting evidence beyond his own affidavit demonstrating his medical reasons for retiring. We agree that the record contains no medical documentation or statements from appellant's doctors supporting his argument. While appellant claims that respondent's action in raising the bad faith retirement issue only days before the motion hearing prevented him from gathering medical documentation, we note that he did not seek a continuance or an evidentiary hearing[2] on the issue of bad faith, but instead acquiesced in that issue being considered on the same day as other issues.[3] Further, appellant provided no evidence that he could have retired at age 57 as he suggested. See Straus v. Straus, 254 Minn. 234, 234, 94 N.W.2d 679, 680 (1959) (rule that on appeal evidence must be viewed in light most favorable to prevailing party applies to evidence presented by affidavits in support of and in opposition to motions; conflicts in evidence, even though presented by affidavit, are to be resolved by district court).

The record, as submitted by the parties, supports the court's findings and conclusion, and we see no abuse of discretion in the denial of appellant's motion to terminate his maintenance obligation. We find significant, however, a conclusion of the district court which states that:

[I]ncome of $2,800 per month will be imputed to [appellant] until he reaches the age of 62 years, the age he becomes eligible for income from Social Security. The imputed income may also be changed if [appellant] provides evidence of his inability to work at his professional level.

(Emphasis added.) We believe that the trial court intended to permit appellant to continue to seek modification of maintenance if he can produce the evidence of lack of bad faith which he failed to produce at the hearing. In such event, we infer from the trial court's language that appellant shall not be required to demonstrate a substantial change in circumstances from the time of entry of the order now on appeal. See Minn. Stat. § 518.64, subd. 2.

Affirmed.

SCHUMACHER, Judge (dissenting).

I respectfully dissent. Assuming for the sake of argument respondent's assertion that appellant retired early to avoid maintenance constitutes the "colorable claim" of bad faith required by Richards v. Richards, 472 N.W.2d 162, 165 (Minn. App. 1991), this record contains more than sufficient evidence to overcome that claim. The record shows that appellant's retirement plan reached its maximum benefit at 30 years of service and that appellant had 30 years of service when he retired. The record also shows that there were medical reasons for appellant's retirement. Continuing to work until he was eligible for social security would not increase appellant's retirement benefits. Not only did appellant not have an incentive to continue working but, he had a legitimate incentive to quit working.

Under these circumstances, and without any evidence directly showing that appellant retired to avoid paying maintenance, appellant's affidavits and supporting information clearly overcome respondent's inference that appellant retired early in bad faith. I would reverse and remand for a determination of appellant's ability to pay maintenance from sources other than his retirement plan. See Kruschel v. Kruschel, 419 N.W.2d 119, 121-22 (Minn. App. 1988) (payment of maintenance from pension benefits previously awarded as property in dissolution judgment improperly modifies property division).

[ ]¹At the time of the dissolution, appellant was awarded his teacher's pension plan in its entirety and was to pay respondent in monthly installments a sum equal to one-half the plan's value. The parties subsequently satisfied respondent's interests by the transfer of real property from appellant to respondent.

[ ]²See Minn. R. Gen. P. 122, 303.02 (allowing party to request continuance); Minn. R. Gen. P. 303.03(d) (providing that motions be submitted on affidavits, exhibits, documents, memoranda, and argument of counsel; but party may request court take oral testimony).

[ ]³We note appellant cited the Richards case during the hearing before the district court and, thus, was aware of his burden.