In Re the Marriage of: James T. Burmeister, petitioner, Respondent, vs. Melonie K. Burmeister, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

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

IN COURT OF APPEALS

C9-00-874

In Re the Marriage of:

James T. Burmeister, petitioner,

Respondent,

vs.

Melonie K. Burmeister,

Appellant.

Washington County District Court

File No. F399843

John M. Harvey, Harvey & Sheehan, Ltd., 7401 Metro Boulevard, Suite 555, Minneapolis, MN 55439-3033 (for respondent)

Mark J. Vierling, Susan Danner Olson, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for appellant)

            Considered and decided by Amundson, Presiding Judge, Halbrooks, Judge, and Mullaly, Judge.*

HALBROOKS, Judge

Appellant Melonie Maitland, formerly Melonie Burmeister, argues that the trial court abused its discretion in setting her maintenance award and alleges that the award denies her an opportunity for rehabilitation.  She also challenges the trial court's denial of her request for attorney fees.  Because the trial court inconsistently included child support from appellant's first husband in her net monthly income, but omitted expenses related to her minor child from the determination of her reasonable monthly expenses, we remand the issues of appellant's net monthly income and reasonable monthly expenses.  In addition, because it is unclear whether appellant is seeking to rehabilitate herself to a degree that will allow her to meet or exceed her reasonable monthly expenses, we remand for the trial court to address this question and to make any adjustment to appellant's maintenance award that may be required by the findings made on remand.  We affirm the trial court's denial of appellant's motion for attorney fees.

Appellant and respondent James T. Burmeister married on September 30, 1989.  Both parties have children from previous marriages, but none from this marriage.  Respondent has been employed at Tapemark Company since 1972 and has been vice-president and CFO since 1980.  His predicted gross annual income for 2000 is estimated to be more than $200,000.  Before this marriage in 1989, appellant supported her two children and herself by selling real estate.  She also attended classes part-time at St. Cloud State University.  Following her marriage to respondent, appellant continued to be a part-time student, but was no longer employed outside the home.  Appellant received her biology degree from the University of Minnesota in the summer of 1999.  She is currently a full-time pharmacy student at the University of Minnesota and works 10-12 hours per week as a retail clerk.  Appellant wishes to complete the pharmacy program and then find work in that field.

Dissolution proceedings began in January 1999.  After a two-day trial in November 1999, the court ordered that the parties' home be sold and the proceeds divided.  Appellant was awarded temporary maintenance of $1,800 per month for a maximum of one year or until she finds employment suitable to cover her expenses, whichever occurs first.  In addition, the trial court awarded appellant permanent maintenance of $700 per month.  In determining appellant's budget, the trial court included child support from her first marriage as income but did not include any costs related to the care of her minor child in calculating her expenses.  The trial court declined to award appellant attorney fees.  This appeal follows.  

I.

            Absent an abuse of the trial court's "wide discretion" in awarding maintenance, "the trial court's determination is final."  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  An abuse of discretion occurs if the trial court resolves the matter in a manner that is "against logic and the facts on record."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  This court will not disturb a maintenance award if it has a "reasonable and acceptable basis in fact and principle."  DuBois v. DuBois, 335 N.W.2d 503, 507 (Minn. 1983).  While Minn. Stat. § 518.552 (2000) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive; the issue is basically the recipient's need balanced against the obligor's financial condition.  Erlandson, 318 N.W.2d at 39-40.  Maintenance-related findings of fact are not set aside unless clearly erroneous.  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989); see Minn. R. Civ. P. 52.01 (findings of fact not set aside unless clearly erroneous).

            In calculating a maintenance recipient's need for maintenance, the recipient's reasonable monthly expenses are to be determined in light of the standard of living established during the marriage.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 411 (Minn. App. 2000).  Here, appellant notes that the trial court found respondent's reasonable monthly expenses to be $6,105 and alleges that the finding that her reasonable monthly expenses are $2,796 understates her expenses.  While the trial court found that various expenses increased during the marriage, it also found that "[d]uring the marriage, a substantial portion of [respondent's] earnings were spent for the expenses that [he] had grown accustomed to prior to the marriage."  (Emphasis added.)  The trial court's analysis distinguishes portions of the standard of living established during the marriage from those established before the marriage.  This analysis is consistent with the maintenance statute.  See Minn. Stat. § 518.552, subd. 2(c) (2000) (requiring maintenance determinations to be made in light of "the standard of living established during the marriage" (emphasis added)); see also Minn. Stat. § 518.552, subd. 1(a), (b) (2000) (same).  The trial court also found that, because of the dissolution, "it [will be] impossible for the[se] parties to maintain the same standard of living after a divorce" that they had during the marriage.  Thus, while the trial court may have found respondent's monthly expenses to be higher than appellant's, the trial court's analysis is consistent with the statutory language.  We cannot say that the finding of appellant's expenses is clearly erroneous simply because it is less than the finding of respondent's expenses. 

Appellant also challenges the finding of her net monthly income, noting that, in calculating her income, the trial court included child support from her first husband, but it did not include the expenses associated with that child.  The trial court's analysis is not symmetrical.  It requires appellant to use funds from an unrelated judgment designated for her child's benefit for her own expenses.  We, therefore, reverse the portion of the trial court's order addressing appellant's income and expenses and remand for new findings.

One of the most contentious issues at trial was appellant's vocational choices.  The trial court imputed to appellant a $30,000 gross annual income from a biology-related job.  It is undisputed that appellant is qualified for such a position and that the job market is favorable.  She argues that the trial court should have set her maintenance award at an amount that would allow her to continue her current academic path to obtain a pharmacy degree.  The trial court found that the net monthly income that appellant could reasonably expect to earn from a biology-related job would be $1,700, almost $1,100 less than it found her reasonable monthly expenses to be.  Because the trial court also awarded appellant $700 permanent monthly maintenance, it apparently believed there was doubt about when or if appellant would be able to support herself with a biology-related job.  See Minn. Stat. § 518.552, subd. 3 (2000) (requiring doubts about maintenance to be resolved in favor of awarding permanent maintenance).  To the extent that appellant receives a permanent maintenance award, she is absolved of the duty to rehabilitate.  See Sand v. Sand, 379 N.W.2d 119, 124 (Minn. App. 1985) (stating permanent maintenance recipients need not economically rehabilitate), review denied (Minn. Jan. 31, 1986). 

Given appellant's good health, age, and general employability, however, a question arises about whether a biology-related job, requiring a permanent maintenance award, is appropriate for appellant.  See generally Nardini v. Nardini, 414 N.W.2d 184, 197 (Minn. 1987) (noting "[b]eing capable of employment and being appropriately employed are not synonymous").  On this record, appellant's other employment option is to complete a pharmacy degree and get a job in a pharmacy-related field.  The trial court did not address the net monthly income appellant could be reasonably expected to earn with a pharmacy-related job.  Respondent's obligation to provide maintenance depends on appellant's need and appellant's need is impacted by the standard of living established during the marriage.  But respondent has no obligation to fund appellant's acquisition of a degree that would allow her to significantly exceed her reasonable needs.  See Lyon v. Lyon, 439 N.W.2d 18, 22 (Minn. 1989) (stating maintenance depends on showing of need).  Therefore, we remand to the trial court for a finding of the net monthly income appellant can be reasonably expected to earn with a pharmacy degree and to determine whether to base the finding of appellant's net monthly income on a biology- or pharmacy-related job.  After doing so, the trial court shall exercise its discretion to make any necessary adjustments in amount and/or duration of the maintenance award. 

II.

Appellant argues that the trial court should have awarded her need-based attorney fees for the trial.  See Minn. Stat. § 518.14, subd. 1 (2000) (addressing need-based attorney fees).[1]  Whether to award attorney fees "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotations omitted), review denied (Minn. Feb. 18, 1999).  A reviewing court will rarely reverse a trial court's decision to grant attorney fees.  Reinke v. Reinke, 464 N.W.2d 513, 516 (Minn. App. 1990).  Here, in declining to award fees, the trial court considered both parties' incomes and property and concluded, pursuant to Minn. Stat. § 518.14, subd. 1, that both had sufficient assets from which to pay their own fees and costs after division of the marital property.  A review of the record shows that appellant received marital assets of approximately $317,000.  On this record, we conclude that the trial court did not abuse its broad discretion in denying appellant attorney fees.  See, e.g., Reinke, 464 N.W.2d at 516 (finding no abuse of discretion where financial situations of the parties, after the property award, allowed each to pay his or her own fees). 

On remand, the decision whether or not to reopen the record shall be discretionary with the trial court.

Affirmed in part, reversed in part, and remanded. 

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

[1]  Appellant was awarded $2,000 in attorney fees to defray the costs of the motion to amend.