Opinion
No. C0-96-160.
Filed September 3, 1996.
Appeal from the District Court, Anoka County, File No. FX9414798.
Beverly K. Dodge, Elizabeth A. Schading, (for Appellant)
David W. Skogerboe, (for Respondent)
Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
In this dissolution action, Ronald Svedjan argues the district court erred in setting maintenance, in valuing and dividing the marital property, and in ordering him to pay part of respondent's attorney fees. We affirm in part, reverse in part, and remand.
FACTS
The 32-year marriage of appellant Ronald Svedjan and respondent Alice Svedjan was dissolved in 1995. During the marriage, respondent primarily stayed at home to care for the children. But respondent also worked part time as a registered nurse and, after the children were emancipated, worked part time teaching and testing nursing assistant skills. In 1995, respondent began a new job working 30 hours per week for the Red Cross. Respondent said her lack of a college degree in nursing limited her opportunities in that field. Respondent was in relatively good health but suffered from chronic Fibromyalgia syndrome. The symptoms of this disease include joint pain, sleep disorder, limitations on physical activity, and chronic fatigue. Respondent managed the disease by taking medication, pacing herself, and reducing stress and had not had a flare-up in over a year.
Both parties testified that they had planned throughout the marriage to retire in July 1996 when appellant was first eligible for early retirement. When appellant took a new job in 1995, he preserved his eligibility for early retirement by taking a leave of absence from his former job and by paying both his and his former employer's contributions to his pension fund. The parties agreed that if appellant retired as planned in July 1996, they would receive $4,184 per month in benefits from his pension plan for six years and $1,842 per month thereafter for life. If respondent retired in July 1996, the parties would receive $120.41 per month from her pension plans. The parties stipulated that their other retirement accounts were worth $120,453.32 and $68,947.57.
The district court determined that appellant's job paid him an annual base salary of $94,000 per year, $23,500 in fringe benefits, $13,000 for an expense and travel allowance, $5,000 for an annual car allowance, and a yearly bonus equal to 10% of his company's net revenue. The court found that respondent's net monthly income was $1,360.77 and that each party had expenses of $3,520 per month. The court held that respondent lacked sufficient property to provide for her needs and was unable to support herself through appropriate employment. The court stated that respondent's career had been subordinated to appellant's during their long marriage, thereby permanently diminishing her earning capacity. The court concluded that respondent needed permanent maintenance and set maintenance at $2,250 per month until August 1996 and $2,500 per month thereafter. The court also awarded respondent one-half of appellant's yearly bonus but capped this award at $12,957.50 per year, one-half of appellant's projected first-year bonus.
The court ordered that qualified domestic relations orders be used to divide the payments from both appellant's and respondent's pension plans equally between them. The court divided the other retirement accounts equally between the parties. The court ordered each party to pay one-half of the $3,600 remaining due on a $5,490 checking account overdraft incurred by respondent during the separation. The court did not give appellant credit for the payments he had made toward this debt nor hold respondent accountable for an additional $2,700 she had withdrawn from a marital savings account during the separation or a $507 credit card debt she had incurred during that time. The court found the parties had $42,000 in equity in their home and awarded the home to respondent on condition that she pay appellant $21,000. The court valued one of the two timeshare properties awarded to appellant at its replacement cost but valued both timeshare properties awarded to respondent at their purchase price. Finally, the court ordered appellant to pay $4,000 toward respondent's attorney fees.
DECISION
1. Our standard of review of a maintenance award "is whether the trial court abused the wide discretion accorded to it." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Findings of fact concerning maintenance will not be reversed unless they are clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn.App. 1989). A finding is clearly erroneous when it is against logic and the facts on the record. Id.
In setting the amount and duration of maintenance, the district court must consider the obligee's financial resources and needs, the probability that the obligee will become self-supporting through employment, the standard of living during the marriage, the duration of the marriage, the employment opportunities foregone by the obligee during the marriage, the obligee's age and physical condition, and the obligor's ability to meet his needs while paying maintenance. Minn. Stat. § 518.552, subd. 2 (1994); see Nash v. Nash, 388 N.W.2d 777, 780 (Minn.App. 1986) (court must consider statutory factors), review denied (Minn. Aug. 20, 1986). Although the court must consider the factors in Minn. Stat. § 518.552, subd. 2, the basic issue in setting maintenance is "the financial needs of [the obligee] and her ability to meet those needs balanced against the financial condition of [the obligor]." Erlandson, 318 N.W.2d at 39-40.
Appellant first challenges the district court's findings on respondent's expenses and resources. But respondent's testimony regarding her itemized list of expenses supported the district court's finding that her expenses were $3,520 per month. Also, the record shows respondent worked approximately the same number of hours per week in 1995 as she had during the marriage, her hours at the Red Cross conflicted with the hours of the higher-paying, part-time jobs she previously had held and prevented her from continuing with that work, and the most valuable marital assets she received in the dissolution were not liquid. This evidence supports the district court's finding that respondent's resources were limited to her earnings from her part-time job with the Red Cross.
Appellant argues that the district court should have considered the $2,092 per month in pension benefits that respondent will receive when he retires in July 1996 as part of her resources. But at the time of trial, neither party was receiving pension benefits. Although the parties agreed that appellant intended to retire in July 1996, he was not required to do so and his actual retirement date was uncertain. The district court properly refused to consider pension income that respondent did not yet receive. Cf. Thomas v. Thomas, 407 N.W.2d 124, 127 (Minn.App. 1987) (child support based on current income).
Appellant also claims that the district court awarded maintenance in an amount that exceeded his ability to pay. Effective appellate review of a maintenance award is possible only when the district court
has issued sufficient detailed findings of fact to demonstrate its consideration of all factors relevant to an award of permanent spousal maintenance.
Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989). "[T]o determine ability to pay, the court must make a determination of the payor spouse's net or take-home pay." Kostelnik v. Kostelnik, 367 N.W.2d 665, 670 (Minn.App. 1985), review denied (Minn. July 26, 1985).
The district court did not determine appellant's monthly net income. Appellant's high income and large expense allowances have potentially significant tax consequences. Further, the district court's findings on appellant's car allowance and monthly expenses are unsupported by the record. Absent adequate findings on appellant's monthly net income and expenses, we cannot determine whether the district court considered his ability to pay when setting maintenance or set maintenance in an amount that exceeded his ability to pay.
We also agree with appellant that if he receives his entire projected bonus, the maintenance award here significantly exceeds respondent's needs. See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (maintenance awarded to meet need). The district court also failed to explain why respondent's needs will increase in August 1996, thereby requiring a $250 increase in maintenance.
Under these circumstances, we reverse and remand the amount of the maintenance award. On remand, the district court should make the necessary findings regarding appellant's net income and expenses and any other factor affecting his ability to pay maintenance and then exercise its discretion to set maintenance in an amount that appellant has the means to pay and that allows respondent to meet her needs.
At oral argument, appellant stated he has taken the steps necessary to retire in July 1996. A maintenance award may be modified upon a showing of a substantial increase or decrease in a party's earnings or needs. Minn. Stat. § 518.64, subd. 2(a) (Supp. 1995). Because pension benefits awarded as property in a dissolution cannot be used to pay maintenance, the receipt of such benefits is a substantial change in circumstances that could support modification of a maintenance award. Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn.App. 1988). Accordingly, we find the interests of judicial economy would be best served here by allowing the district court on remand to also consider any maintenance modification motions made by the parties, to receive additional evidence on the parties' needs and resources after their receipt of pension and retirement benefits, and to exercise its discretion to determine whether the receipt of those benefits is a change in circumstances that supports modification of the maintenance award.
2. The district court's distribution of marital assets in a dissolution will not be reversed on appeal absent a clear abuse of discretion. Kriesel v. Gustafson, 513 N.W.2d 9, 12 (Minn.App. 1994). We will affirm the property distribution as long as "it has a reasonable basis in fact and principle." Id.
Appellant argues the district court erred in valuing the marital equity in the homestead and the timeshare properties awarded to him, in dividing the debt incurred by respondent during the separation, and in dividing respondent's pensions and that these errors constitute an abuse of discretion because they benefited respondent in excess of $10,000. But the property division in a dissolution does not have to be mathematically equal. Id at 15. Instead, the district court must make a just and equitable division of the property. Minn. Stat. § 518.58, subd. 1 (1994). The property division must be based on factors such as the length of the marriage and the parties' ages, health, needs, incomes, and employability. Id. Our review of the record shows that the property division, including the $10,000 differential, was not an abuse of discretion, given the parties' ages, health, needs, incomes, and employability.
3. Appellant finally argues that the district court abused its discretion in ordering him to pay $4,000 of respondent's attorney fees. Minn. Stat. § 518.14, subd. 1 (1994), allows the district court to award fees in a dissolution if it finds the fees are necessary for the assertion of a party's rights; the party ordered to pay the fees has the means to pay the award; and the party to whom fees are awarded does not have the means to pay them. Because the district court did not make adequate findings on appellant's net income, we cannot determine whether it correctly determined that he has the ability to pay the attorney fee award. Accordingly, we reverse and remand the attorney fee award to allow the district court to make the findings necessary for our review.