Opinion
No. C6-96-499.
Filed October 29, 1996.
Appeal from the District Court, Washington County, File No. F1941650.
Kay S. Wento, (for Appellant)
Carl A. Blondin, (for Respondent)
Considered and decided by Kalitowski, Presiding Judge, Lansing, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Suzanne M. Drusch appeals from a district court order denying her request for permanent maintenance or, alternatively, for a reservation of the issue of maintenance. We affirm.
FACTS
Appellant Suzanne M. Drusch (wife) and respondent Douglas M. Drusch (husband) were married in October 1975. Until wife became employed in 1990, husband worked while wife remained at home and raised the couple's three children.
The parties' marriage was dissolved on December 1, 1994. Wife received sole physical custody of their minor daughter and husband received sole physical custody of their minor son. The district court ordered husband to pay wife (1) $300 per month for child support until the minor son attained the age of 18 or graduated from high school, whichever occurred later, and $647 per month for child support from that time until the minor daughter reached the age of 18 or graduated from high school, whichever occurred later, and (2) $300 per month for spousal maintenance until wife's remarriage, the death of either party, or July 31, 1995, whichever occurred first. The judgment authorized wife to request a continuation of the maintenance obligation by July 31, 1995.
On July 31, 1995, wife moved for permanent monthly maintenance of $300 or, alternatively, a reservation of the issue for future determination, claiming that her living expenses had significantly increased, from $1955 to $2467 per month. In January 1996, following a hearing, the court denied both requests.
DECISION
The district court has broad discretion in deciding whether to modify spousal maintenance awards. Rapacke v. Rapacke , 442 N.W.2d 340, 343 (Minn.App. 1989). The reviewing court will not disturb a maintenance award if it has a "reasonable and acceptable basis in fact and principle." DuBois v. DuBois , 335 N.W.2d 503, 507 (Minn. 1983).
To justify modification of a maintenance award, the moving party must show both that (1) there has been a substantial change in a party's earnings, need, or cost of living and (2) because of the change, the current terms of the decree are unreasonable and unfair. Hellerstedt v. Hellerstedt , 409 N.W.2d 65, 67 (Minn.App. 1987), review denied (Minn. Sep. 30, 1987); Minn. Stat. § 518.64, subd. 2 (1994). If the moving party makes such a showing, the court must consider the standards for determining maintenance in Minn. Stat. § 518.552 (1994). Rapacke , 442 N.W.2d at 343. Section 518.552 permits a court to grant maintenance in a proceeding following a marriage dissolution if it finds that the spouse seeking maintenance (1) lacks sufficient property to provide for his or her reasonable needs or (2) is unable to provide adequate self-support through appropriate employment. Minn. Stat. § 518.552, subd. 1. The maintenance order must be determined in amounts and for periods of time as the court deems just after considering all relevant factors. Id. , subd. 2. "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." Id., subd. 3.
Wife argues that the district court abused its discretion (1) by failing to award $300 per month in permanent spousal maintenance, based on her substantial increase in need, and (2) alternatively, by failing to reserve the matter of a permanent award, based on the uncertainty of her ability to sustain herself in the future. The district court found that wife has not provided any explanation as to why her expenses have increased [to the extent she claims] in only eight months. There is nothing in the Court file from which the Court can determine the reason for this increase or whether the increase is reasonable.
In addition, the district court found that wife was able to support herself with her monthly income and child support. Accordingly, the court concluded that "[t]here has not been a substantial change in circumstances such that the duration of maintenance set forth in the Judgment and Decree is unfair and unreasonable."
Wife relies on Rydell v. Rydell , 310 N.W.2d 112, 115 (Minn. 1981), for the proposition that the absence of improvement in her circumstances constitutes the substantially increased need required by section 518.64. In Rydell , the district court found that the recipient's health had been expected to improve, but "contrary to expectations, her physical symptoms * * * worsened." Id. Wife, however, produced no evidence here that her situation was different from that anticipated by the judgment and decree entered eight months earlier.
Wife challenges the adequacy of the district court's findings. In denying wife's maintenance requests, however, the court noted that the record was insufficient to make findings on several of the factors necessary for an award of maintenance under Minn. Stat. § 518.552. "[T]his court will not speculate, and the appellant cannot complain where inadequate documentation leads at least in part to the trial court's refusal to modify a decree." Tuthill v. Tuthill , 399 N.W.2d 230, 232 (Minn.App. 1987). The Tuthill court held that a party's "failure to show [a substantial] change [in circumstances] precludes a modification of maintenance obligations under Minn. Stat. § 518.64, subd. 2," where a detailed analysis of the party's financial condition was impossible because he failed to present complete information. Id. The district court properly denied wife's modification requests because (1) she failed to present evidence to prove a substantial change in circumstances and (2) any uncertainty regarding her need for permanent maintenance was created by her own failure to present evidence regarding her education, training, job potential, and personal expenses.
Wife also contends the court failed to consider husband's financial resources other than income from his job, including his "financial accounts" and his potential for overtime income. This court, however, will not reconsider the parties' dissolution property settlement in reviewing a request for modification of maintenance. See Abuzzahab v. Abuzzahab , 359 N.W.2d 329, 333 (Minn.App. 1984) (holding that financial difficulties that result largely from the property division in the marital dissolution are not the types of changes in circumstances contemplated by Minn. Stat. § 518.64, subd. 2).
Moreover, we find no support for wife's argument that the court should have considered husband's decision to stop working overtime when his employer made overtime voluntary. When an obligee raises a "colorable claim of bad faith" regarding an obligor's decision to create a change in circumstances, the obligor is required to prove by a preponderance of the evidence that the decision "was not primarily influenced by a specific intent to decrease or terminate maintenance." In re Marriage of Richards , 472 N.W.2d 162, 165 (Minn.App. 1991). Here, wife fails to raise a colorable claim of bad faith. Unlike Richards , the husband-obligor here (1) is not the party seeking a maintenance modification and (2) continues to work full time. We find no support in Minnesota law for the proposition that a former spouse must work what would otherwise be voluntary overtime in order to pay maintenance. Cf. Minn. Stat. § 518.551, subd. 5(b)(2) (1994) (providing that "net income," for the purpose of calculating child support, does not include compensation received for voluntary overtime or other voluntary employment in excess of a 40-hour work week, provided certain conditions are met).