This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-97-615

Robert L. McMillan, Jr., petitioner,

Appellant,

vs.

Jeannette Marie McMillan,

Respondent.

Filed October 21, 1997

Affirmed in part, reversed in part, and remanded

Amundson, Judge

Dakota County District Court

File No. F4-91-114441

Dennis J. Dietzler, 6625 Lyndale Avenue South, Suite 530, Richfield, MN 55423 (for appellant)

Kathleen E. Rusler O'Connor, Mardell Law Office, 15000 Garrett Avenue, Apple Valley, MN 55124 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Foley, Judge.[*]

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

AMUNDSON, Judge

Appellant Robert L. McMillan Jr. challenges the district court's findings of fact, conclusions of law, and order, arguing that it was an abuse of discretion for the district court to award wife permanent spousal maintenance of $1,100 per month. We affirm the district court's decision to award permanent spousal maintenance, we reverse the monthly maintenance amount, and we remand to the district court to use its discretion to calculate a year when the maintenance for the repairs will be extinguished.

FACTS

On August 23, 1991, the district court dissolved the 23-year marriage of appellant Robert L. McMillan, Jr. (husband) and respondent Jeanette Marie McMillan (wife). In the summer of 1991, the parties entered into a marital termination agreement that was incorporated into the terms of the judgment and divorce decree.

In April 1993, the district court modified the terms of the judgment and divorce decree and ordered husband to pay temporary spousal maintenance in the amount of $1,100 per month until March 31, 1996, or later, depending on their son's college status. Husband appealed the district court's order of April 27, 1993, but the decision was affirmed by this court in an unpublished opinion. McMillan v. McMillan, No. CX-93-1110 (Minn. App. Jan. 11, 1994).

Before the temporary maintenance period ended, wife served motion papers requesting that the award of temporary spousal maintenance be made permanent in the amount of $1,100 per month, based on her development of carpal tunnel syndrome. On May 24, 1996, the district court awarded wife permanent maintenance in the amount of $1,100 per month. Husband appealed.

After the parties submitted their briefs and the case was scheduled for oral argument, this court issued an order remanding the case to consider the impact of Gales v. Gales, 553 N.W.2d 416 (Minn. 1996). After reviewing the entire file and briefs, the district court issued its March 4, 1997, order which contains a finding that "a substantial change in circumstances has occurred." Additionally, the court found that "[t]his is a case where spousal maintenance should have been awarded to Respondent from the time of the dissolution." This appeal followed.

D E C I S I O N

This court will not reverse a district court's determination regarding a maintenance award unless the district court abused its wide discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). This court will reverse for an abuse of discretion only where the district court has reached a clearly erroneous conclusion that is against logic and the facts on the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

In determining the amount of maintenance and whether maintenance should be temporary or permanent, the district court must consider several factors, including:

(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;

(c) the standard of living established during the marriage;

(d) the duration of the marriage and, in 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 foregone 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;

(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 the furtherance of the other party's employment or business.

Minn. Stat. § 518.552, subd. 2 (1996). Where uncertainty exists as to whether the award should be permanent or temporary, the court shall order a permanent award and leave the order open for subsequent modification. Minn. Stat. § 518.552, subd. 3 (1996). A court may modify a maintenance order upon a showing of substantially increased or decreased need of a party. Minn. Stat. § 518.64, subd. 2(a) (1) (1996). On a motion for modification of maintenance, including a motion to extend the duration of maintenance, the court shall apply the factors contained in Minn. Stat. § 518.552. Minn. Stat. § 518.64, subd. 2(b) (1996). In summary, a maintenance determination is a balancing of the financial resources and needs of the two spouses. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. Mar. 19, 1992).

I. Permanent Maintenance

In the present case, it is undisputed that wife received a diagnosis of carpal tunnel syndrome. The district court determined:

Respondent's health condition is a substantial change in circumstances since the Court's award of temporary spousal maintenance. It would be unreasonable and unfair not to award Respondent permanent spousal maintenance, given her changed circumstances.

The district court made detailed findings of fact in its May 24, 1996, and March 4, 1997, orders, and the record indicates that the district court carefully considered each of the factors of Minn. Stat. § 518.552.

The unforeseen onset or worsening of a debilitating medical condition is a substantial change in circumstances. See Rydell v. Rydell, 310 N.W.2d 112, 115 (Minn. 1981). The district court did not abuse its discretion in determining that there had been a substantial change in circumstances that makes an award of permanent spousal maintenance appropriate.

II. Maintenance Amount and Duration

In determining an appropriate amount for spousal maintenance, the district court appears to have overlooked the specifics of wife's monthly expenses. Wife submitted a list of necessary repairs that, once completed, will be removed from her monthly expenses. One of the figures submitted stated that wife had repairs of $583 per month that she could not afford to pay.

We are remanding this issue to the district court to use its discretion to determine what amount of maintenance is appropriate and for what duration. After the major repairs are completed, the maintenance amount should be reduced.

Affirmed in part, reversed in part, and remanded.

Dated:

_____________________________________

Judge Roland C. Amundson

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.