This opinion will be unpublished and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

C2-97-2065

In Re the Marriage of:

Linda Kaye Donner Sidney, petitioner,

Respondent,

vs.

Dexter Joseph Sidney,

Appellant.

Filed April 14, 1998

Affirmed

Kalitowski, Judge

Dakota County District Court

File No. F39612182

Patricia A. O'Gorman, Patricia A. O'Gorman, P.A., 8750 90th Street South, #207, Cottage Grove, MN 55016 (for respondent)

Dexter J. Sidney, 508 Woodland Drive, Burnsville, MN 55337 (pro se appellant)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Foley, Judge.*

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

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

KALITOWSKI, Judge

Appellant Dexter Joseph Sidney contends the district court abused its discretion by: (1) awarding permanent maintenance to respondent Linda Kaye Donner Sidney; (2) not suspending maintenance during one of the months that appellant was unemployed; and (3) awarding attorney fees to respondent. Respondent contends the district court abused its discretion in failing to award a share of appellant's future bonuses to respondent. We affirm.

D E C I S I O N

I.

The district court has broad discretion in awarding maintenance, and it will not be reversed absent a clear abuse of that discretion. O'Brien v. O'Brien, 343 N.W.2d 850, 852 (Minn. 1984). The underlying findings of fact must be affirmed if not clearly erroneous. Minn. R. Civ. P. 52.01.

Minn. Stat. § 518.552, subd. 1 (1996), provides that the district court may grant maintenance if it finds that the spouse seeking maintenance:

lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

is unable to provide adequate self-support * * * through appropriate employment * * * .

The district court must also consider the factors listed in the statute to determine if maintenance is appropriate. Minn. Stat. § 518.552, subd. 2 (1996).

Appellant contends the district court erred in concluding respondent should not be required to invade specific retirement accounts in order to support herself. We disagree. The district court did not abuse its discretion in determining that respondent should not be required to liquidate her IRA-type funds at a substantial penalty while appellant is permitted to allow his to accumulate. See Justis v. Justis, 384 N.W. 2d 885, 892 (Minn. App. 1986) (holding that because wife's award of pension and profit sharing plans and IRA are not liquid assets, she demonstrated need for maintenance), review denied (Minn. May 29, 1986).

Appellant also challenges the district court's finding that permanent maintenance was appropriate because it could not determine respondent's future ability to attain self-sufficiency. Appellant argues that because of respondent's past business success, the district court's finding unfairly minimized her future ability to earn money. We disagree. The district court specifically found that respondent did not make a significant amount of money in her past business endeavors. Because there is evidence to support this finding, we cannot say it was clearly erroneous.

Further, the legislature requires the award of permanent maintenance if there is uncertainty about the spouse's ability to become self supporting:

Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.

Minn. Stat. § 518.552, subd. 3 (1996). Here, the district court did not abuse its discretion in finding respondent's income and employment prospects were uncertain, and respondent was entitled to permanent maintenance subject to a motion for modification when respondent completes her education and enters the workforce.

Appellant also claims the district court clearly erred in determining his ability to pay maintenance because in setting appellant's future income at $10,000 per month, the district court ignored the fact that appellant would be unemployed. We disagree. Because the district court based its findings on evidence of appellant's potential earnings in the record, we conclude the court did not abuse its discretion.

II.

Appellant argues the district court abused its discretion by ordering appellant to pay the full maintenance amount for May 1997 while he was unemployed. He argues the court should have suspended this payment as it did the payments due in other months he was unemployed. We disagree. The district court ordered appellant to pay the full amount due based on a July 1997 financial statement reporting that appellant had $12,000 in his savings account. Although appellant claims the $12,000 originated from his IRA account, we conclude the district court acted within its discretion in determining respondent had resources available to pay the required maintenance and the court did not clearly err in finding that it was unfair for appellant to accumulate savings while only paying arrearages to respondent.

III.

An award for attorney fees pursuant to Minn. Stat. § 518.14 (1996) lies in the discretion of the district court. Katz v. Katz, 408 N.W.2d 835, 840 (Minn. 1987). We will not reverse an award of attorney fees absent an abuse of discretion. Id. The district court shall award attorney fees to enable a party to contest a proceeding if the party does not have the means to pay them and the opposing party has the financial means to pay the fees. Minn. Stat. § 518.14, subd. 1 (1996). Because the record supports the district court's determination that respondent lacks resources to pay her attorney fees and appellant has a larger earning potential, we conclude the district court did not abuse its discretion in awarding respondent attorney fees.

IV.

Respondent claims the district court erred in failing to award her a share of any future bonuses earned by appellant. Appellant's employment offer includes an opportunity to participate in a bonus plan that is awarded annually based on individual performance and employer profitability.

At the time the district court considered the reduction in maintenance, appellant had been employed only one month with his new employer. Thus, the district court was unable to determine with any certainty appellant's prospects for incentive payments. If the award of bonuses is uncertain and the amount is not guaranteed, the district court acts within its discretion in not awarding a portion to respondent. See McCulloch v. McCulloch, 435 N.W.2d 564, 566-67 (Minn. App. 1989) (holding district court's determination that wife was precluded from obtaining maintenance where future bonuses were too speculative). We conclude the district court did not abuse its discretion in failing to order appellant to pay respondent a share of future bonuses.

Affirmed.