State of Minnesota, Respondent, vs. Omar Raoof Azeez, Appellant.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-98-313

In Re the Marriage of:

Clifford Alden Dengerud, petitioner,

Appellant,

vs.

Delores Grace Dengerud,

Respondent.

Filed September 1, 1998

Affirmed

Schumacher, Judge

Stearns County District Court

File No. F2941911

Kay R. Snyder, Burns Law Offices, 111 Ninth Avenue North, Post Office Box 486, St. Cloud, MN 56302 (for appellant)

Virginia A. Marso, 830 St. Germain, Suite 210, Post Office Box 583, St. Cloud, MN 56302 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Thoreen, Judge.*

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

SCHUMACHER, Judge

Appellant Clifford Alden Dengerud (husband) contends the trial court abused its discretion when it found that circumstances had changed substantially, increased his spousal maintenance obligation to $2,000 per month, and later only reduced it to $1,850 per month. He also contends the court improperly adopted the findings proposed by respondent Delores Grace Dengerud (wife). We affirm.

FACTS

The year the parties dissolved their 35-year marriage, husband was projected to earn approximately $61,000. Wife had been a homemaker and unemployed outside the home since 1989; prior to that time, and during most of the parties' marriage, she worked part time outside of the home. In preparation for returning to work, wife was in a word processing program at a local vocational college.

Husband initially paid $1,500 monthly maintenance. The court later amended its findings regarding husband's net income and reduced maintenance to $1,000 per month. This court affirmed. See Dengerud v. Dengerud, No. C9-95-1667 (Minn. App. Feb. 6, 1996).

In June 1997, wife sought an increase in spousal maintenance based on an alleged increase in husband's income and wife's financial needs. Husband opposed the motion. The facts in the record projected that husband would have gross income of $82,881 for 1997, whereas wife's total projected 1997 income, including maintenance, was $13,000.

Finding that husband's salary had increased over $20,000 since the dissolution, and wife's monthly expenses had increased from $1,500 to $2,000, the court found a substantial change in circumstances, which made the original order unreasonable and unfair. The court then increased husband's spousal maintenance obligation to $2,000 per month.

On husband's motion for amended findings, the trial court amended its findings regarding husband's net income, but still found a significant increase, which constituted a substantial change in circumstances. The trial court granted husband's motion in part and reduced his obligation to $1,850 per month. Husband appeals.

D E C I S I O N

Minn. Stat. § 518.64, subd. 2 (1996), allows the district court to modify a maintenance award upon a showing of one or more various factors, such as a party's substantially increased or decreased earnings, or a party's substantially increased or decreased need, any of which renders the current order unreasonable or unfair. The decision to modify maintenance rests in the broad discretion of the trial court and will not be overturned absent an abuse of that discretion. Hecker v. Hecker, 543 N.W.2d 678, 680 (Minn. App. 1996), aff'd, 568 N.W.2d 705 (Minn. 1997).

Husband first challenges the finding that his net monthly income was $5,000. He argues the trial court erroneously calculated his tax deductions to arrive at this amount. The trial court did not accept as accurate the tax deductions listed on husband's pay stub because the amount of tax withheld appeared disproportionate to the amount of income earned. The prior year husband had total withholding of $12,805 on $82,047 of gross income. By June 1997, however, he had already withheld $10,565 in total taxes on only $34,534 of gross income. The court compared this data and determined that husband was withholding excess taxes from his paycheck in order to reduce his net income. The facts in the record support this finding, and it is essentially a credibility determination by the district court to which we defer. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). Further, given that husband's income increased from the projected $61,000 to $82,000, the trial court did not abuse its discretion in finding a substantial change in circumstances.

Husband contends the court erroneously limited wife's income to $13,000. We presume that amount represents wife's gross income, given that the trial court described it as her "total" income. Wife concedes that her income, which includes maintenance, should have been $14,280 rather than $13,000. This miscalculation is de minimis error when calculated over 12 months, however, because she still has far less monthly income than reasonable expenses. See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (de minimis error to be ignored).

Husband contends the trial court abused its discretion by failing to impute to wife $140 per week in income after it found her capable of working 20 hours per week at $7.00 per hour. See Warwick v. Warwick, 438 N.W.2d 673, 677-78 (Minn. App. 1989) (extending rule to allow court to impute income in maintenance cases when party has been unemployed in bad faith or when calculation is impossible). The record here, however, does not contain any evidence that wife has willfully self-limited her income or avoided work in bad faith. On the contrary, the court found wife has been actively seeking work, but has not yet been successful. See Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997) (holding that trial court could not find bad faith underemployment where wife continued same part-time work schedule she had while married, and where no evidence showed her intent to reduce income in order to obtain maintenance). Imputation of income was not necessary.

Husband also challenges the trial court's findings regarding the parties' reasonable monthly expenses. The court found wife's expenses modest and reasonable. The record shows that wife did not include in her list of expenses any objectionable items in her motion for modification. The record supports the trial court's finding that the increase in her expenses constituted a substantial change in circumstances.

With regard to husband's claimed expenses, the trial court struck several items, finding it inappropriate to include as a monthly expense over $400 in "other expenses," spousal maintenance, and a $1,000 counter top that should have been amortized over its useful life. The court found that husband had already deducted his spousal maintenance payment, dollar for dollar, from his income, thus resulting in a double deduction. The record supports these findings. The $1,850 spousal maintenance award is not excessive, given that wife has reasonable monthly expenses of approximately $2,000, her vehicle has to be replaced, and she has to pay for her own medical insurance.

Finally, husband contends the trial court abused its discretion when it allegedly adopted wife's proposed findings, conclusions, and amended judgment and decree. The verbatim adoption of a party's proposed findings is not favored, but neither is it reversible error. Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). From the record before us, we conclude the trial court independently reviewed the issues and decided the case.

Affirmed.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pusuant to Minn. Const. Art. VI, § 10.