In Re the Marriage of: LeRoy Keith Storbeck, petitioner, Appellant, vs. Denise Christina Storbeck, Respondent. CX-99-424, Court of Appeals Unpublished, September 14, 1999.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-99-424

In Re the Marriage of:

LeRoy Keith Storbeck, petitioner,
Appellant,

vs.

Denise Christina Storbeck,
Respondent.

Filed September 14, 1999
Affirmed in part and reversed in part; motion denied
Randall, Judge

Stearns County District Court
File No. F8-91-1140

Kim A. Pennington, JoAnn D. Winkels, Pennington & Lies, P.A., 1111 First Street North, P.O. Box 1756, St. Cloud, MN 56302-1756 (for appellant)

Richard D. Goff, Roslyn J. Beckman, Richard D. Goff & Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schultz, Judge.[*]

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

RANDALL, Judge

On appeal after a third remand in this maintenance-modification proceeding, appellant LeRoy Storbeck challenges maintenance and the amount of income imputed to respondent Denise Storbeck. He also alleges the district court awarded respondent an excessive amount of attorney fees. Respondent seeks attorney fees on appeal. We affirm in part, reverse in part, and deny respondent's motion for attorney fees.

FACTS

The 1985 stipulated judgment dissolving the parties' marriage awarded respondent monthly maintenance of $750 for 120 months and was based on appellant's claimed net monthly income. A 1993 child-support order noted appellant's actual 1985 income exceeded the stipulated amount. In 1995, respondent sought $3,500 permanent monthly maintenance. The district court denied the motion, respondent appealed, and this court remanded for findings. Storbeck v. Storbeck, No. C0-96-904 (Minn. App. Nov. 26, 1996). The district court then denied respondent's motion again, and respondent re-appealed. This court concluded the district court did not follow its remand instructions and, again, remanded for findings. Storbeck v. Storbeck, No. C5-97-634 (Minn. App. Sept. 2, 1997). In a third appeal, this court concluded that the district court's findings were still inadequate and remanded a third time. Storbeck v. Storbeck, No. C7-97-2353 (Minn. App. July 14, 1998). The third remand also directed the district court to award respondent attorney fees for the third appeal. Id. In January 1999, the district court (a) found respondent's reasonable monthly expenses; (b) found respondent's net monthly income by imputing income to her; (c) awarded respondent $1,000 in permanent monthly maintenance; and (d) awarded respondent $15,000 in attorney fees. This appeal follows.

D E C I S I O N

Law of the case precludes relitigation of issues that have been decided and "ordinarily" applies where an appellate court rules on a "legal issue and has remanded the case to the lower court." Loo v. Loo, 520 N.W.2d 740, 744, n.1 (Minn. 1994). Noting Storbeck v. Storbeck, No. C7-97-2353, 1998 WL 389075 (Minn. App. July 14, 1998) (Storbeck III), affirmed the district court's finding that respondent failed to make a good-faith effort to rehabilitate, appellant challenges the district court's refusal to impute full-time income to respondent. That respondent failed to make a good-faith effort to rehabilitate allows the district court to impute income to respondent but the amount to be imputed depends on other factors. See Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn. 1997) (affirming propriety of imputing income because of refusal to rehabilitate but affirming amount imputed because it was what could have been earned with "reasonable effort").

On remand after Storbeck III, the district court stated that the amount of income to be imputed to respondent "is affected by [respondent's] age and her medical condition" despite Storbeck III's affirmance of the district court's prior implicit finding that respondent was not credible when she argued that her medical condition limited her ability to work.[1] Appellant alleges the district court's latest decision violates the law of the case. We understand his argument. But, when addressing the amount of income to be imputed to respondent, the district court found that respondent might not have enough clients for full-time employment, that appellant's argument assumed respondent "could charge and collect $55 per hour[,]" and that "[r]egardless of [respondent's] licensing status" a "realistic approach" was to assume respondent could work "20 hours per week, 48 weeks per year" and charge "$45 per hour." Thus, when determining the amount of income to be imputed to respondent, the district court relied not on respondent's medical condition, but on estimates of respondent's client base and rate of delinquent payments. Any error in the district court' statement that respondent's age and medical condition impacted the income to be imputed to her does not (mercifully) affect our analysis.

II.

Maintenance modification is a standard discretionary act of a district court. Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981). Generally, maintenance modification requires the moving party to show both a substantial change in circumstances and that the change renders the existing award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1998); Hecker, 568 N.W.2d at 709. Maintenance-related findings of fact are not set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

Here, the record lacks evidence indicating respondent's expected rate of delinquent payments and client base would be any different from other therapists. Therefore, the district court's discounting of these factors is not supported by the record. Respondent testified that, at the time of the hearing, no client owed her money. Also, given the district court's estimate that respondent's tax burden would be about 30% of her gross income and the findings that respondent can gross $45 per hour and has reasonable monthly expenses of $3,250, respondent could meet her reasonable monthly expenses by working less than 25 hours per week. We cannot say this record shows a need for maintenance, even taking into account trial court discretion. See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (holding maintenance requires showing of need). We reverse the maintenance award. But, because of the condition of this record and the length of these proceedings, we direct the district court to retain jurisdiction over the issue of maintenance. If, in the future, respondent satisfies the statutory standard for modifying maintenance, the district court has the power to award an equitable amount of maintenance for an equitable period of time.

Given our disposition of this issue, we need not address various maintenance-related issues raised by the parties.

III.

Noting the amount of attorney fees respondent incurred "to date," the district court awarded respondent $15,000 in attorney fees. But the portion of the Storbeck III remand addressing attorney fees was for attorney fees incurred in the Storbeck III appeal, not for prior proceedings. Storbeck III, 1998 WL 389075, at *3-*4 (Minn. App. July 14, 1998). Thus, by awarding fees in light of what has happened "to date," the district court exceeded the scope of the remand. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (stating district court's duty on remand is to execute mandate of remanding court "strictly according to its terms" (citation omitted)). Upon consideration of the record and the history of this case, we affirm the propriety of awarding fees but modify the amount to $5,000.

IV.

Respondent seeks attorney fees on appeal under "Minn. Stat. § 518.14." Although not so stated by respondent, we assume she is seeking fees under the portion of Minn. Stat. § 518.14, subd. 1 (1998), allowing awards of need-based fees. See Minn. Stat. § 518.14, subd. 1 (allowing need-based and conduct-based attorney fees). Whether to award fees on appeal is discretionary with this court. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989). On this record, we deny respondent's request for fees.

Affirmed in part and reversed in part; motion denied.

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

[1] To the extent respondent argues the district court did not make such a finding, we reject that argument. The impact of respondent's medical condition on her ability to work has been a focal point of her motion to modify maintenance since 1995. The district court's prior orders note respondent's medical claims but also note she failed to submit any medical evidence to support her claims and have repeatedly denied respondent's motion to modify maintenance. If the district court believed respondent's assertions about her medical condition, this case would have required fewer than four appeals.