In Re the Marriage of: Brenda G. Moskal, petitioner, Respondent, vs. David J. Moskal, Appellant.

This opinion will be unpublished and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

C2-99-580

In Re the Marriage of:
Brenda G. Moskal, petitioner,
Respondent,

vs.

David J. Moskal,
Appellant.

Filed December 21, 1999
Affirmed as modified
Halbrooks, Judge

Hennepin County District Court
File No. DC 188 409

Anne M. Honsa, Honsa & Michales, P.A., 5500 Wayzata Boulevard, Suite 520, Minneapolis, MN 55416 (for respondent)

Michael D. Dittberner, Kissoon, Clugg, Linder & Dittberner, Ltd., 3205 West 76th Street, Edina, MN 55435-5244 (for appellant)

Considered and decided by Halbrooks, Presiding Judge, Klaphake, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant David Moskal appeals from the district court's downward modification of his spousal-maintenance obligation. Specifically, he contends that the district court abused its discretion regarding the date it chose to make the modification effective. Appellant also challenges the district court's order that his maintenance- and child-support obligations be immediately reinstated following his release from prison. Respondent seeks review of the district court's refusal to award her attorney fees relative to appellant's motion for modification and also seeks an award of attorney fees on appeal. Because we hold that the district court did not abuse its discretion regarding the effective date of the modification, we affirm the district court's decision on this issue. The district court, however, erred in ordering that appellant's original obligations be automatically reinstated following his release from prison. We, therefore, modify that portion of the order. Finally, we affirm the district court's decision regarding attorney fees and deny respondent's request for fees on this appeal.

FACTS

Appellant David Moskal and respondent Brenda Moskal were married in 1973. Their marriage was dissolved on December 23, 1993. The dissolution judgment and decree provided, among other things, that appellant would pay spousal maintenance and child support to respondent each month. Spousal maintenance was initially set at $9,456.56 per month and child support at $1,530. These figures were subject to an annual cost-of-living adjustment and were paid in equal one-half installments on the first and the fifteenth of each month. By June 1, 1998, the monthly maintenance payments equaled $10,452.15 and child support totaled $1,691.18.

Appellant was involuntarily terminated from his law firm on August 4, 1998. An internal investigation revealed that appellant had been embezzling substantial amounts of money from the firm and its clients for a number of years. Following this revelation, appellant was disbarred by the Minnesota Supreme Court and indicted in United States District Court on charges of mail fraud. Appellant pleaded guilty to those charges in January 1999. Appellant is currently in the custody of the Federal Bureau of Prisons.

Following his termination from the law firm, appellant brought a motion in district court for modification of his spousal-maintenance and child-support obligations. The motion was filed with the court on August 14, 1998, and a hearing was scheduled for December 8, 1998. Appellant moved the court for a downward modification of his obligations effective August 15, 1998. The original dissolution judgment specifically granted the court authority to make a downward modification of the maintenance obligation if, among other things, appellant became unemployed.

In an order dated February 3, 1999, the district court modified appellant's maintenance and support obligations effective April 1, 1999. His spousal maintenance was suspended for the period of his incarceration. It is noted, however, that appellant has not made any maintenance payments since August 1, 1998. Because the court's order did not make the modification effective until April 1, 1999, appellant is in arrears for seven and one-half months of maintenance payments.

By the terms of the February 3, 1999 order, appellant's child-support obligation was decreased to a flat sum of $111,000. The federal prosecutor agreed to forego potential forfeiture proceedings relative to the $111,000 so long as that sum was placed into trust for the purpose of child support. The district court order provided a method for distributing the child-support funds. The district court also ordered that appellant's obligations be automatically reinstated to their pre-modification level immediately upon his release from prison.

Following the court's order, appellant moved for amended findings and order regarding the automatic reinstatement of his obligations after being released from prison. On March 12, 1999, the court denied appellant's motion.

D E C I S I O N

1. Effective date of spousal-maintenance modification

The district court has broad discretion to set the effective date of a maintenance or support modification. Borcherding v. Borcherding, 566 N.W.2d 90, 93 (Minn. App. 1997); Finch v. Marusich, 457 N.W.2d 767, 770 (Minn. App. 1990). This court will not reverse the district court's decision setting or modifying a maintenance award unless the district court has abused its discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).

In this case, appellant sought a downward modification of his spousal-maintenance obligation following his involuntary termination from his law firm. The original dissolution judgment significantly limits the grounds on which a modification can be requested. Appellant's loss of employment, however, is one of those conditions.

Appellant requested that the district court make the modification effective as of August 15, 1998, pursuant to Minn. Stat. § 518.64, subd. 2(d) (1998). That statute provides:

A modification of support or maintenance may be made retroactive * * * from the date of service of notice of the motion on the responding party * * * .

Id. Because the word "may" in Minnesota statutes is defined as "permissive," the district court has discretion in deciding whether to make a maintenance modification retroactive to the day the motion was served. Minn. Stat. § 645.44, subd. 15 (1998); see also Finch, 457 N.W.2d at 770.

We hold that the district court did not abuse its broad discretion in denying appellant's request to make the modification retroactive to August 15, 1998. In addition to the permissive statutory language in Minn. Stat. § 518.64, subd. 2(d), the record as a whole supports the district court's decision. Because appellant brought the modification motion, he bore the burden of proving that he was entitled to a modification. Meier v. Connelly, 378 N.W.2d 812, 818 (Minn. App. 1985). Appellant was clearly able to establish that an anticipated change in circumstances, his imprisonment, would render him unable to meet his spousal-maintenance obligation. The district court's comments at the December 8, 1998 and March 11, 1999 hearings, however, indicate that it concluded appellant's financial situation then was unclear. As a result, appellant did not prove that he could not meet his maintenance obligation prior to his imprisonment.

2. Reinstatement of spousal maintenance and other obligations immediately upon release from prison

The district court has discretion in determining issues of spousal maintenance and child support. Erlandson, 318 N.W.2d at 38 (maintenance); Guyer v. Guyer, 587 N.W.2d 856, 858 (Minn. App. 1999) (child support), review denied (Minn. Mar. 30, 1999). This court will not reverse the district court's modification decision absent an abuse of discretion. Borcherding, 566 N.W.2d at 92.

The district court ordered that appellant's obligations be reinstated at a level equal to their pre-incarceration level immediately upon his release from prison. Additionally, the district court's amended order requires appellant to contact the court and respondent's attorney when he learns of the date of his release in order to determine whether a hearing will be necessary on the issues of his maintenance and child-support obligations.

We sympathize with the district court's desire to alleviate respondent's burden to bring a motion following appellant's release from prison. But despite respondent's contention, this case is not like the six-month reprieve followed by an automatic reinstatement of the obligor's obligations in Anderson v. Anderson, 421 N.W.2d 410 (Minn. App. 1988). We hold that the district court's order regarding appellant's obligations was a modification under Minn. Stat. § 518.64, subd. 2 (1998). Because the district court ordered a modification, the automatic reinstatement of appellant's obligations following his release from prison was inappropriate.

Although the district court erred on this point, we note that the effect of our decision simply shifts the burden to respondent to establish that she is entitled to a modification at a future date. Meier, 378 N.W.2d at 818. If respondent wishes to seek a modification following appellant's release from prison, she must bring an appropriate motion.

3. Attorney fees

Respondent has appealed the district court's denial of her request for attorney fees relative to appellant's motion for modification and, additionally, seeks attorney fees on this appeal.

The district court has very broad discretion to decide whether to award attorney fees in family matters. Courey v. Courey, 524 N.W.2d 469, 473 (Minn. App. 1994). A district court's refusal to award attorney fees to a party will not be reversed absent a clear abuse of discretion. Kitchar v. Kitchar, 553 N.W.2d 97, 104 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

Appellant's financial situation was, to say the least, uncertain at the time of the December 8, 1998 hearing. See Minn. Stat. § 518.14, subd. 1(2) (1998) (requiring party from whom fees are sought to have means to pay them). In light of this, we hold that the district court did not abuse its discretion in denying respondent's motion for attorney fees.

Respondent has also brought a motion for attorney fees relative to this appeal. "An award of attorney fees on appeal rests within the discretion of this court." Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994) (citation omitted). "Attorney fees may be awarded in dissolution cases for frivolous or bad faith appeals." Kitchar, 553 N.W.2d at 104 (citations omitted).

In this case, appellant made colorable legal arguments in support of his appeal of the district court's orders. Id. (noting that "both parties presented colorable legal arguments on difficult issues" in support of decision not to award fees). Therefore, respondent's motion for attorney fees is denied.

We affirm the district court's choice of April 1, 1999, as the effective date of the modification. But we hold that the district court erred in ordering that appellant's obligations be automatically reinstated upon his release from prison. Therefore, we modify that portion of the district court's order. Because the district court modified appellant's obligations within the meaning of Minn. Stat. § 518.64 (1998), respondent must bring a motion for modification following appellant's release from prison if she desires to have the issue of maintenance revisited. Finally, we affirm the district court's denial of respondent's request for attorney fees and deny her request for fees on this appeal.

Affirmed as modified.