This opinion will be unpublished and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

C5-97-1959

In Re the Marriage of:

Janet Dorothy Oulicky, petitioner,

Respondent,

vs.

Robert James Oulicky,

Appellant.

Filed March 31, 1998

Affirmed in Part, Reversed in Part, Remanded, and Motion Denied

Davies, Judge

Anoka County District Court

File No. F9953835

Beverly K. Dodge, Elizabeth A. Schading, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Blvd., Coon Rapids, MN 55433 (for respondent)

Jeffery P. Hicken, Jensen, Hicken & Scott, P.A., 300 Anoka Office Center, 2150 Third Ave., Anoka, MN 55303 (for appellant)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

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

DAVIES, Judge

Appellant Robert Oulicky claims the district court erred in retroactively increasing his maintenance obligation, setting maintenance without an evidentiary hearing, and awarding attorney fees to respondent Janet Oulicky. Respondent claims the district court's fee award was inadequate and she seeks fees on appeal. We affirm in part, reverse in part, remand, and deny respondent's motion for attorney fees on appeal.

FACTS

The December 1995 stipulated judgment dissolving the parties' marriage states that each party expected to receive social security in 1996 and set appellant's maintenance obligation so the parties would share their social security benefits equally. In February 1996, appellant got a job that provided him with substantial income. In September 1996, without telling respondent he was employed, appellant started paying respondent the amount he would have been obligated to pay her based on no income except social security. After she discovered appellant was employed, respondent moved to modify maintenance. Appellant, appearing pro se, opposed respondent's motion and sought various relief himself. The district court: (a) concluded appellant misrepresented his social security status and committed fraud on the court; (b) set appellant's monthly maintenance obligation at $1,000; (c) awarded respondent maintenance arrears; and (d) awarded respondent attorney fees. Both parties appeal. Respondent seeks attorney fees on appeal.

D E C I S I O N

I.

Generally, maintenance modifications are retroactive only to the date of the moving party's motion, but they may be retroactive to an earlier date if the district court finds that disability, misrepresentation, or fraud on the court precluded an earlier motion and that the moving party made a motion promptly after the opportunity to do so arose. Minn. Stat. § 518.64, subd. 2(d)(1) (Supp. 1997). Here, the district court based the retroactive modification of maintenance on respondent's disability and on appellant's deliberate misrepresentations.

Appellant claims the dissolution judgment does not state that respondent has a disability and that respondent did not present any evidence of a disability in the modification proceedings. The dissolution judgment did not need to address respondent's disability because the parties had previously stipulated that respondent needed a guardian ad litem, as her "major mental illness" precluded her from prosecuting the dissolution. Consistent with respondent's affidavit in the current proceeding, the order modifying maintenance found that respondent had been hospitalized multiple times in the year-and-a-half after the divorce and that respondent's mental illness has continued. See Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous). The finding of respondent's mental illness supports a modification of maintenance retroactive to a date before respondent's motion. Therefore, we need not address appellant's claim that the district court erred by finding he committed a fraud on the court.[1]

II.

Appellant claims the $1,000 monthly maintenance award to respondent lacks adequate findings. See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (inadequate maintenance findings require remand). Whether to modify maintenance is discretionary with the district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Although Minn. Stat. § 518.552 (1996) lists several factors to be considered when setting maintenance, the basic factor is to balance the recipient's needs and the obligor's ability to pay. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982); see also Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986) (findings on all maintenance factors not required), review denied (Minn. May 29, 1986).

Here, the district court found that respondent is unable to meet her reasonable monthly expenses without invading her property award and that appellant is able to contribute to respondent's expenses. A maintenance recipient should not have to liquidate the principal of a property award to meet monthly expenses. Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985). But the court did not address the size of respondent's monthly deficit or appellant's ability to relieve that deficit. Although respondent's affidavit states she uses "in excess of $400.00 per month" of the principal of her property award to meet expenses, the district court awarded her $1,000 monthly maintenance. The basis for the amount of the award is unclear. See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (maintenance requires showing of need). We reverse the maintenance award and remand for the district court to make findings on each party's monthly income and reasonable monthly expenses, to reevaluate the amount of the maintenance award, and to make any other findings necessary to support the award it ultimately determines is proper. Stich, 435 N.W.2d at 53; see also Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997) (noting importance of establishing "baseline circumstances" against which future allegations of changed circumstances will be measured).

The court, at its discretion, may conduct a hearing. Because we remand, we need not address appellant's claim that he was entitled to a continuance of the hearing on respondent's motion.

III.

Appellant claims the cover letter, under which respondent's attorney sent the district court proposed findings and conclusions, constituted an ex parte contact with the district court. The letter, which criticized the district court's maintenance calculations, apparently was not copied to appellant's then new attorney. Because the letter appears to have influenced the setting of appellant's arrears, the district court, on remand, shall give appellant an opportunity to address the contents of the letter, then reevaluate the amount of appellant's maintenance arrears.

IV.

Conduct-based fee awards are discretionary with the district court. Kronick v. Kronick, 482 N.W.2d 533, 536 (Minn. App. 1992) (conduct-based fee awards); see also Minn. Stat. § 518.14, subd. 1 (1996) (court "may" award fees against party unreasonably contributing to proceeding's length or expense). Based on what it found to be appellant's misrepresentations, the district court ordered appellant to pay $750 of respondent's attorney fees. We conclude appellant's conduct justifies the fee award. See Dabrowski v. Dabrowski, 477 N.W.2d 761, 766 (Minn. App. 1991) ("Fee awards under Minn. Stat. § 518.14 may be based on the impact a party's behavior has had on the costs of the litigation regardless of the relative financial resources of the parties."). This is not, however, the "rare case" where we will increase the district court's attorney fee award. See Nemmers v. Nemmers, 409 N.W.2d 225, 228 (Minn. App. 1987) (award of attorney fees increased only in "rare cases").

Respondent's request for attorney fees on appeal is denied.

Affirmed in part, reversed in part, remanded, and motion denied.

[ ]1 Respondent's motion is allowed despite the judgment's purported Karon waiver because of the specific terms of that waiver. Respondent moved to modify maintenance within three years of the entry of judgment and her motion is based on appellant's annual income exceeding $5,000. See Karon v. Karon, 435 N.W.2d 501, 503 (Minn. 1989) (allowing stipulations precluding maintenance modification); see also Minn. Stat. § 518.552, subd. 5 (1996) (allowing stipulations that limit or eliminate ability to modify maintenance).