Richard E. Bosse, Law Offices of Richard E. Bosse, Ch., P.O. Box 315, Henning, MN 56551 (for appellant)

Kevin A. Spellacy, Dyan J. Ebert, James P. Peters, Quinlivan & Hughes, P.A., P.O. Box 1008, St. Cloud, MN 56302 (for respondents)

Considered and decided by Davies, Presiding Judge, Schumacher, Judge, and Short, Judge.

Appellant contests the district court's grant of summary judgment in favor of respondents in this legal malpractice action. We affirm.

In March 1990, appellant Patricia Chiapusio hired respondent attorney Virginia Marso to assist her in obtaining a divorce from Dr. Dennis Chiapusio (husband). During discovery, Marso obtained husband's financial records, including tax returns and pay stubs. Marso initially told the dissolution court that husband's net monthly income was $4,063 and that appellant required permanent spousal maintenance of $2,250 per month. Marso later argued that, because husband's net annual income was more than $48,000, he could afford to pay permanent maintenance of $2,000 per month.

After the dissolution court informed her that it was "leaning toward a permanent maintenance award of $1,000 per month," Marso decreased the maintenance request. At the dissolution trial, Marso argued that appellant should receive permanent maintenance of $1,200 per month, while husband's counsel argued that appellant should receive maintenance of $750 per month for five years.

In the dissolution decree, the court found that husband earned an annual gross income of $83,028 and that his annual net income was $51,970 ($4,331 per month) at the time of the dissolution. The court ordered husband to pay $1,000 per month in spousal maintenance for ten years, plus $1,000 in monthly child support.

On appeal, this court affirmed the amount of the maintenance award, but made the obligation permanent. Chiapusio v. Chiapusio, No. C3-92-936 (Minn. App. Jan. 12, 1993). Appellant subsequently filed a legal malpractice suit alleging that Marso negligently failed to establish husband's correct net income.

Appellant obtained an affidavit of expert review from family law attorney Nancy Zalusky Berg. Using a computer program known as FinPlan, Berg calculated that husband's actual net monthly income at the time of dissolution (including his salary, investment income, and tax refunds from 1989 and 1990) was $5,427. Berg asserted that a monthly spousal maintenance obligation of $2,000 and child support obligation of $1,000 would have been equitable. Berg opined that Marso "failed to reasonably explore and determine Dr. Chiapusio's actual income even though the information was all available to her."

After a hearing on appellant's malpractice claim, the district court granted Marso's motion for summary judgment. This appeal followed.

Summary judgment is appropriate where there are no genuine issues of material fact and either party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. When a motion for summary judgment is made and supported, the nonmoving party must "present specific facts showing that there is a genuine issue for trial." Minn. R. Civ. P. 56.05. "[S]ummary judgment is proper when the nonmoving party fails to provide the court with specific indications that there is a genuine issue of fact" remaining for trial. Thiele v. Stich, 425 N.W.2d 580, 583 (Minn. 1988). An issue of fact is material if its resolution would affect, or is necessary to determine, the outcome of a case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976).

There is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party's case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

In granting summary judgment, the district court found that Berg's affidavit failed to raise any genuine issues of material fact regarding Marso's investigation and presentation of husband's income, lacked an adequate foundation, and contained numerous errors that diminished its probative value. Specifically, the court found that:

1. Berg erroneously included $5,200 in interest income generated by investments that were dissipated prior to the parties' dissolution (and thus would not provide husband with substantial future income) when calculating husband's net monthly income.

2. Berg failed to explain how she concluded that husband's monthly net income was $1,097 greater than the amount found by the [dissolution] court, other than to provide a copy of her FinPlan analysis.

3. Contrary to Berg's assertions, Marso did inform the court about husband's income tax refunds, and the court disposed of those refunds in the property division portion of the dissolution decree.

4. Berg failed to show how husband's past income tax refunds affected his net income at the time of the dissolution, or that Marso's alleged failure to inform the court of these refunds affected the amount of appellant's maintenance award in any way.

The record supports the district court's conclusions about the probative value of Berg's affidavit. For example, appellant claims that Marso failed to inform the dissolution court of husband's 1989 and 1990 income tax rebates, leading the court to believe that husband's annual net income was less than it actually was. But in the dissolution decree, the court stated "the parties received income tax refunds for 1989 in the sum of $4,283.16," and awarded that amount to husband. Obviously, to dispose of the 1989 refund the dissolution court must have known of its existence. The 1990 refund is not mentioned in the decree, but Marso offered copies of husband's 1990 income tax returns as evidence at trial. Marso did not fail to inform the dissolution court that a refund in that year increased husband's net annual income available to pay maintenance.

Berg also stated that appellant would have received $2,000 per month in permanent maintenance if Marso had established that husband's net monthly income was greater than $4,331, and that this error cost appellant more than $200,000 in lowered maintenance payments. There is no evidence to support this speculative conclusion. A $2,000 maintenance award, when combined with husband's undisputed child support obligation of $1,000, would consume at least 55% (using appellant's figure of $5,427), and possibly as much as 69% (using the court's figure of $4,331), of husband's net monthly income. Berg cannot credibly assert that such an award would have been equitable and cannot predict with any certainty what the dissolution court might have done with additional information about husband's net income. Any prediction of damages is wholly speculative. In any event, Marso is not liable even if the maintenance award was inadequate because she provided the dissolution court with all necessary information about husband's income.

Appellant has not shown the existence of a genuine issue of material fact that would preclude summary judgment. Berg's affidavit creates only metaphysical doubt and was not probative of appellant's claim that Marso presented inadequate evidence of husband's net income. Summary judgment was proper.

Affirmed.