Opinion
No. C2-98-1895.
Filed March 9, 1999.
Appeal from the District Court, Hennepin County, File No. 188656.
Michael L. Perlman, Perlman Law Office, (for appellant)
Lorraine S. Clugg, (for respondent)
Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
This is the second appeal arising from a 1993 dissolution judgment following a 44-year marriage. On appeal, Robert Jackson argues the trial court abused its discretion in: (1) setting permanent spousal maintenance at $800 per month in an April 3, 1998 order; and (2) denying his motion to modify maintenance from $800 to $250 per month and awarding former spouse $5,000 in attorney fees in a September 16, 1998 order. On November 10, 1998, we dismissed Jackson's first argument as untimely. His former spouse requests attorney fees and costs incurred on appeal. We affirm and grant the motion for additional attorney fees.
DECISION
Jackson argues the trial court abused its discretion in refusing to modify his spousal maintenance obligation despite a reduction in his income-producing assets. But maintenance obligations are modified only after a party shows clear proof of a change in circumstances that make the existing order unreasonable or unfair. Minn. Stat. § 518.64, subd. 2(a) (1998); Wiese v. Wiese , 295 N.W.2d 371, 372 (Minn. 1980). Modification decisions will not be reversed absent an abuse of discretion. Erlandson v. Erlandson , 318 N.W.2d 36, 38 (Minn. 1982).
The record shows: (1) Jackson voluntarily decreased his assets from $477,100 to $209,718 by purchasing and maintaining a 45-foot boat in Florida; (2) despite his decrease in assets, Jackson sailed to the Bahamas and the Caribbean, rented a summer cabin in northern Minnesota, and currently supports another adult in Florida; (3) even though the trial court has reduced his maintenance obligation from $2,200 to $800 per month over the past three years, Jackson has not voluntarily paid his former spouse maintenance since April 1995; and (4) Jackson's former spouse's annual income is limited to social security benefits and proceeds from her dissolution settlement. Given these facts and our limited standard of review, we conclude the trial court did not abuse its discretion in concluding no clear and substantial change in circumstances warrant a reduction in Jackson's maintenance obligation. See In re Marriage of Richards , 472 N.W.2d 162, 164-65 (Minn.App. 1991) (holding, where obligor voluntarily creates change in circumstances, it must be in good faith to justify modification of obligations); see also Wiese , 295 N.W.2d at 372 (noting trial court must cautiously modify awards "only upon clear proof of facts showing that a substantial change in circumstances renders modification equitable").
Jackson also argues the trial court abused its discretion in awarding his former spouse $5,000 in attorney fees. But the trial court may require one party to pay the other party's attorney fees after considering the financial resources of both parties. Minn. Stat. § 518.14, subd. 1 (1998). The award of attorney fees in a dissolution proceeding is almost entirely within the discretion of the trial court. Solon v. Solon , 255 N.W.2d 395, 397 (Minn. 1977). In addition to recognizing Jackson's former spouse's limited income, the trial court found: (1) Jackson's unwillingness to voluntarily pay his former spouse maintenance and his unavailability for court proceedings increased his former spouse's attorney fees; and (2) at the time of the trial court's September 16, 1998 order, his former spouse's attorney fees amounted to $9,875. The record supports these findings. Under these circumstances, we cannot say the trial court abused its discretion in awarding wife $5,000 in attorney fees. See Beck v. Kaplan , 566 N.W.2d 723, 727 (Minn. 1997) (upholding award of attorney fees based on parties' disparate financial circumstances); Holder v Holder , 403 N.W.2d 269, 271 (Minn.App. 1987) (noting fee awards may be based on impact party's behavior has on litigation costs).
Jackson's former spouse asks this court to award her approximately $6,000 in attorney fees and costs incurred to defend against this appeal. Considering Jackson's endless effort to draw out litigation, we grant his former spouse $2,000 in fees on appeal. See Minn. Stat. § 518.14, subd. 1 (permitting award of attorney fees against party who unreasonably contributes to length of proceedings); Minn.R.Civ.App.P. 138 (providing for award of attorney fees to respondent if appeal delays proceedings on judgment and appears to have been taken merely for delay); Emerick ex rel. Howley v. Sanchez , 547 N.W.2d 109, 113 (Minn.App. 1996) (noting award of attorney fees may be proper where party acted solely for purpose of harassment or where attorney fees are necessary to enable party to carry on proceeding).