In Re the Marriage of: Katherine Claire Novak, petitioner, Respondent, vs. Peter Anthony Novak, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

In Re the Marriage of:

Katherine Claire Novak, petitioner,

Respondent,

vs.

Peter Anthony Novak,

Appellant.

Filed January 23, 2001

Anoka County District Court

File No. FX995442

E. Gordon Spengler, Burns Law Office, P.A., P.O. Box 393, Big Lake, MN  55309 (for respondent)

Jeffrey H. Olson, Leonard, O'Brien, Wilford, Spencer & Gale, 800 Norwest Center, 55 East Fifth Street, Saint Paul, MN  55101 (for appellant)

            Considered and decided by Willis, Presiding Judge, Shumaker, Judge, and Holtan, Judge.*

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant husband challenges the district court's award to respondent wife of $500 per month in permanent spousal maintenance, arguing that the court abused its discretion (1) by failing to impute income to respondent in setting maintenance and (2) by awarding permanent maintenance.  Because we find no abuse of discretion, we affirm.

FACTS

            The 15-year marriage of appellant Peter A. Novak and respondent Katherine C. Novak was dissolved in May 2000.  During the dissolution proceeding, the parties submitted a joint stipulation that left to the district court the decision whether to award spousal maintenance and, if so, the amount and duration of the award.  The parties stipulated that respondent's monthly net income from her full-time job was $983 less than her monthly expenses of $2,344.  Appellant urged the district court to impute the following to respondent:  (1) an additional $720 of income per month for cosmetology work that appellant claimed respondent could do in her spare time; (2) rent from respondent's son from a previous marriage, who lived with her; and (3) interest on her savings account at a rate of ten percent per annum.

The district court awarded respondent $500 per month permanent spousal maintenance.  The court found that, given the standard of living established by the parties during the marriage, a maintenance award was appropriate under Minn. Stat. § 518.552, subd. 1 (2000).  It also reviewed each of the maintenance factors set forth in Minn. Stat. § 518.552, subd. 2 (2000), before making the award.  The district court imputed to respondent $100 of income per month for interest on her savings account, assuming a rate of 3.4% per annum, but it imputed no income to her for cosmetology work she might perform or for rent from her son.  This appeal followed.

D E C I S I O N

            An award of spousal maintenance will not be reversed absent an abuse of discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  The district court's findings must be against logic and the facts on record for this court to conclude that the court abused its discretion in awarding spousal maintenance.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

            Spousal maintenance is an award of "payments from the future income or earnings of one spouse for the support and maintenance of the other."  Minn. Stat. § 518.54, subd. 3 (2000).  Maintenance may be granted if the spouse seeking maintenance demonstrates that he or she:

(a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

(b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment, or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Minn. Stat. § 518.552, subd. 1 (2000).  After deciding to award spousal maintenance, the district court must consider certain factors identified in the maintenance statute in determining the amount and duration of the award.  Id., subd. 2 (2000).  Where there is "some uncertainty" as to the necessity of permanent maintenance, the statute directs the district court to order permanent maintenance but to leave the award open for later modification.  Id., subd. 3 (2000). 

            Here, the district court awarded respondent spousal maintenance after considering the standard of living the parties established during their marriage and the value and liquidity of property apportioned to respondent under the stipulation.  The court carefully reviewed and discussed separately each of the factors in section 518.552, subdivision 2, before deciding the amount and duration of the award.  With respect to subdivision 2(a), which requires the court to consider the financial resources available to respondent and her ability to meet her needs independently, the court determined that the record did not enable it to do anything but speculate about respondent's ability to earn additional income from cosmetology work she might do in her spare time and about her son's ability to pay rent.  Appellant argues that the district court erred in failing to impute to respondent income from these sources.

The parties stipulated that "neither party is underemployed for purposes of the spousal maintenance issue."  Minnesota law requires the district court to find bad-faith underemployment before imputing income to a prospective spousal-maintenance obligee.  Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997).  Because the parties stipulated that respondent is not underemployed, the district court did not abuse its discretion in failing to impute to her income for cosmetology work that she allegedly could do in her spare time.

The parties also stipulated that (1) respondent's son is physically disabled, unemployed, and living with respondent without paying rent or contributing to expenses; (2) for more than two years, respondent's son has suffered from a disability that prevents him from standing for more than 15 minutes at a time and from walking more than a block without resting; (3) respondent's son has had work restrictions because of his disability, and he resigned from his last job more than two years ago because of his disability; (4) respondent's son began a business in March 1999 that made a $400 net profit during the balance of that year; and (5) respondent's son intends to move from his mother's residence when he is able to secure a steady income.  Nothing in the record suggests that respondent's son has the ability to pay rent, and we conclude that the district court did not abuse its discretion in failing to impute to respondent income for rent from her disabled son.

            Appellant argues on appeal that the district court erred by not, sua sponte, imputing to respondent income that she could earn as a temporary clerk during vacations from her full-time job.  Appellant did not present this argument to the district court when litigating the issue of spousal maintenance.  Minnesota law provides that a party may not "obtain review by raising the same general issue litigated below but under a different theory."  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (citations omitted).  The issue is therefore not properly before us.  But we again note that the parties stipulated that neither was underemployed for the purposes of awarding spousal maintenance, and, therefore, the district court did not abuse its discretion in failing to impute income as a temporary clerk to respondent.

            Appellant compares respondent's circumstances to those in Rohling v. Rohling, 379 N.W.2d 519 (Minn. 1986), where the supreme court affirmed a denial of spousal maintenance.  But the supreme court has cautioned against comparing marital dissolution proceedings because "each marital dissolution proceeding is unique and centers upon the individualized facts and circumstances of the parties * * * ."  Dobrin v. Dobrin, 569 N.W.2d 199, 201 (Minn. 1997).  Furthermore, Rohling is readily distinguishable:  The party seeking maintenance in that case had been living separately from her husband and supporting herself by working full-time for approximately nine and one-half years before seeking a final dissolution decree and permanent maintenance.  Rohling, 379 N.W.2d at 521, 524.  Here, the record shows that respondent is unable to meet her reasonable needs without the economic support of appellant.

            Finally, appellant claims that the district court abused its discretion by awarding respondent permanent rather than temporary spousal maintenance.  Appellant asserts that respondent's need for maintenance will end when the mortgage on her homestead is paid off in nine and one-half years and that it was error to continue the payments thereafter.  As we have already noted, Minnesota law provides that in a case where there is some uncertainty as to the necessity of permanent maintenance, the district court is to order permanent maintenance and leave the award open for later modification.  Minn. Stat. § 518.552, subd. 3.  Because the district court is in a position to modify the award at a later date should circumstances warrant, its award of permanent spousal maintenance here was not an abuse of discretion.

            Affirmed.

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