In Re the Marriage of: Mark D. Thielen, petitioner, Respondent, vs. Donna L. Thielen, 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This opinion will be unpublished and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 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
CX-99-875

In Re the Marriage of:
Mark D. Thielen, petitioner,
Respondent,

vs.

Donna L. Thielen,
Appellant.

Filed December 14, 1999
Affirmed
Willis, Judge

Washington County District Court
File No. F9963070

Mark Gray, 1422 W. Lake Street, Suite 320, Minneapolis, MN 55408 (for respondent)

Carl A. Blondin, 7475 15th Street North, Suite 204, Oakdale, MN 55128 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant wife challenges the district court's award of only temporary spousal maintenance, the sufficiency of the maintenance awarded, and the amount of life insurance the court ordered respondent to obtain to secure his maintenance obligation. We affirm.

FACTS

Appellant Donna L. Thielen and respondent Mark D. Thielen had been married for 21 years when their marriage was dissolved in October 1997. At the time of the dissolution, appellant was 41 years of age and respondent was 42. The parties have three children, who were ages 17, 18, and 21 at the time of dissolution.

Appellant is a high-school graduate with no additional schooling. She has been employed on a part-time basis outside the home since 1984. Throughout the parties' marriage, appellant worked at low-paying, part-time jobs while she raised the parties' children and while the respondent advanced his schooling and career. Respondent has a bachelor's and master's degree, both earned during the marriage.

Both the original and amended decrees found that respondent was employed full-time and had a net monthly income of $3,564.73; appellant was employed part-time and had a net monthly income of $1,683.62. During the marriage, appellant inherited approximately $53,000, and she cashed in a pension, valued at $8,000; both amounts were used to pay family debts.

Pursuant to the original dissolution decree, appellant was given physical custody of the parties' 17-year-old daughter and respondent was given physical custody of their 18-year-old son. Respondent was ordered to pay $470.27 per month in child support and $1,200 per month as temporary spousal maintenance. The court also ordered the appellant to "take appropriate steps to retrain herself towards the goal of becoming self-supporting."

Appellant here also appealed from the original decree in January 1998, contesting the award of only temporary maintenance, among other issues. This court affirmed in part, reversed in part, and remanded "for the district court to make findings as to appellant's reasonable monthly expenses, measured by the standard of living during the marriage, and the income appellant can reasonably be expected to earn in the future." Thielen v. Thielen, No. C5-98-45, 1998 WL 422236, at *1 (Minn. App. July 28, 1998). This court concluded that if appellant's "probable future income will be adequate to meet her expenses, temporary maintenance is appropriate. Otherwise, appellant is entitled to permanent maintenance." Id.

On remand, the district court issued the amended decree from which appellant now appeals. Appellant challenges (1) the award of only temporary maintenance; (2) the sufficiency of the maintenance awarded; and (3) the amount of life insurance the court ordered respondent to obtain to secure his maintenance obligation.

D E C I S I O N

Award of Temporary Maintenance

On appeal from an award of maintenance, this court asks whether the district court abused its broad discretion. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). Underlying factual findings will be set aside only if they are clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

A district court may award maintenance if it finds that a spouse is unable to support herself reasonably through employment in view of the standard of living established during the marriage. Minn. Stat. § 518.552, subd. 1(b) (1998). While section 518.552, subdivision 2 (1998), lists factors for the court to consider in determining the amount and duration of maintenance, the issue is, in essence, a balancing of the recipient's need against the obligor's ability to pay. Erlandson,318 N.W.2d at 39-40.

In the previous appeal of this case, this court found, "[a]ppellant presently works 32 hours a week and has a net monthly income of $1,683.62. Even assuming she finds a full-time position at the same hourly wage, her income would not cover her $2,900 in monthly expenses." Thielen, 1998 WL 422236, at *1. This court reversed appellant's temporary-maintenance award and remanded for the district court to "make findings as to appellant's reasonable monthly expenses, measured by the standard of living during the marriage, and the income appellant can reasonably be expected to earn in the future." Id.

On remand, the district court denied appellant's request for permanent maintenance and awarded temporary maintenance of $1,200 per month for six years.[1] Appellant argues there is uncertainty whether her earnings will increase, and therefore an award of permanent maintenance is necessary. Where there is uncertainty as to whether a permanent award is necessary, the district court must order permanent maintenance but retain jurisdiction for later modification. Minn. Stat. § 518.552, subd. 3 (1998). Permanent maintenance is appropriate in cases that involve the "dissolution of a long-term traditional marriage in which there is an older, dependent spouse who has little likelihood of achieving self-sufficiency because of an absence from the labor market for a long period of time." Gales v. Gales, 553 N.W.2d 416, 421 (Minn. 1996).

The district court found no uncertainty whether a permanent award is necessary. The district court found that at the time of the dissolution appellant had worked for the same employer for 13 years and she had been a participant in the job market throughout the marriage. During that time, her wage increased from $5.85 to $11.90 per hour. Thus, the court concluded that her pay will continue to increase regardless of whether she obtains additional training or education. The court further found that appellant's work schedule reasonably could increase to full-time, given the very low unemployment rate in Minnesota from the time of the separation forward and concluded that appellant's future earnings could be reasonably expected to reach $27,040 per year during the six years following the amended decree. For these reasons, the district court concluded that temporary maintenance is needed to provide time for appellant "to adjust to a budget for monthly expenses decreased from what she claims as well as to continue in her employment to obtain higher pay through more years at work and increased hours."

There is no bright-line rule for determining when permanent maintenance is appropriate. Rather, "[e]ach case must be determined on its own facts." Erlandson, 318 N.W.2d at 39. Section 518.552, subdivision 2, sets forth factors to be considered in determining the amount and duration of spousal maintenance. The district court made findings on each statutory factor and determined that only temporary maintenance was appropriate.

Here, the appellant has worked outside the home throughout the marriage, has increased her salary over the years, is in good health, and provides no reasons why she cannot retrain or seek full-time work. The district court did not abuse its broad discretion in granting only temporary maintenance. See Aaker v. Aaker, 447 N.W.2d 607, 611 (Minn. App. 1989) (holding temporary maintenance appropriate under circumstances involving 17-year marriage, three children, 39-year-old recipient with a salary of about $20,000), review denied (Minn. Jan. 12, 1990); Hall v. Hall, 417 N.W.2d 300, 303 (Minn. App. 1988) (holding temporary maintenance appropriate under circumstances involving 18-year marriage, 39-year-old recipient spouse with high school education and working full-time).

Sufficiency of the Temporary Maintenance Award

Appellant argues that the district court erred by not ordering spousal maintenance in an amount sufficient to pay for her reasonable monthly expenses as measured by the standard of living enjoyed during the marriage. "The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it." Erlandson, 318 N.W.2d at 38. Changes in living standards resulting from dissolution should be equalized. Arundel v. Arundel, 281 N.W.2d 663, 667 (Minn. 1979). An award of maintenance should not be in an amount that will merely supply the recipient with the bare necessities of life but rather in an amount that the obligor's means entitle the recipient to live. Id. at 666-67.

On remand, the district court was directed to "make findings as to appellant's reasonable monthly expenses, measured by the standard of living during the marriage." Thielen, 1998 WL 422236, at *1. The district court found that (1) the cash infusions from appellant's inheritance and pension gave the parties a sense of having a higher standard of living than they could afford; (2) respondent's earnings should not be used to maintain appellant's standard of living at a level that was achieved only through infusions of cash that will not be repeated; and (3) a decrease in the parties' standard of living is an inevitable result of the marriage dissolution because they are now supporting two households.

At the time of the dissolution of their marriage, appellant's monthly income was $1,683.62 and respondent's was $3,564.73.In its original decree, the district court determined that appellant's monthly living expenses were $2,900 and ordered $1,200 per month in maintenance payments. This left appellant with a monthly surplus of $453.89.[2] In its amended decree after remand, the district court changed its finding on appellant's reasonable monthly expenses from $2,900 to $2,000. The district court kept maintenance at $1,200 per month, giving appellant a monthly surplus of $1,353.89. Both the original and the amended decrees resulted in a monthly deficit of $105.54 for respondent. The district court did not abuse its wide discretion in finding that appellant's reasonable monthly expenses are $2,000 and in leaving the temporary-maintenance award at $1,200 per month.

Appellant argues that the original finding that appellant's reasonable monthly expenses were $2,900 is res judicata and the law of this case. But this court's earlier decision in this case reversed the temporary maintenance award and remanded "for the district court to make findings as to appellant's reasonable monthly expenses." Had the district court not made a finding on appellant's reasonable monthly expenses, it would have violated the terms of the remand. See Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (requiring district court to execute mandate of remanding court "strictly" according to its terms).

III. Life Insurance

This court required the district court to address, on remand, the issue of life insurance to secure maintenance payments. Appellant argues that the district court abused its discretion by not ordering that maintenance payments be secured by a $300,000 life-insurance policy, rather than ordering respondent to maintain a life- insurance policy, naming appellant as beneficiary, in an amount equal to the total of all temporary spousal maintenance owed to the appellant, but in decreasing amounts consistent with the decreasing obligation of temporary spousal maintenance.

The district court "has the discretion to consider whether the circumstances justifying an award of maintenance also justify securing it with life insurance." Walker v. Walker, 553 N.W.2d 90, 96 (Minn. App. 1996) (quoting Laumann v. Laumann, 400 N.W.2d 355, 360 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987)). A requirement that maintenance be secured with life insurance can be justified by factors such as an award of permanent maintenance, the long duration of the marriage, and the recipient spouse's age and lack of marketable skills. Arundel, 281 N.W.2d at 667. There is no requirement that an award of spousal maintenance be secured by life insurance absent exceptional circumstances. See Fredericksen v. Fredericksen, 368 N.W.2d 769, 772-73, 777 (Minn. App. 1985) (concluding circumstances were exceptional where parties were married for 28 years, wife experienced serious emotional and physical problems, and had no marketable skills).

Here, the district court required respondent to obtain a life-insurance policy in an amount equal to the total amount of the maintenance payments owed to appellant over six years, but in decreasing amounts consistent with the decreasing obligation of temporary spousal maintenance. Even though this case presents no exceptional circumstances and permanent maintenance is not required, we conclude that the district court did not abuse its discretion in ordering respondent to obtain a life-insurance policy or in fixing the amount of the policy at respondent's decreasing spousal-maintenance obligation.

Affirmed.

[1] The original decree ordered temporary maintenance of $1,200 per month for five years.

[2] Respondent was also ordered to pay appellant $470.27 per month for child support.