In re the Marriage of: Sheila P. Abels, petitioner, Respondent, vs. Marvin F. Abels, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-02-2157

 

In re the Marriage of:

 

Sheila P. Abels, petitioner,

Respondent,

 

vs.

 

Marvin F. Abels,

Appellant.

 

Filed ­­May 13, 2003

Affirmed

Harten, Judge

 

Nobles County District Court

File No. F6-02-176

 

Larry C. Lucht, Lucht Law Offices, 906 Third Avenue, Worthington, MN 56187 (for appellant)

 

William J. Wetering, Hedeen, Hughes & Wetering, 1206 Oxford Street, P.O. Box 9, Worthington, MN 56187-0009 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Minge, Judge.

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant challenges the amount and the duration of respondent's maintenance award.  Because we see no abuse of discretion, we affirm.

FACTS

 

            Appellant Marvin Abels and respondent Sheila Abels were married from 1982 to 2002.  Their two children are now ages 15 and 18.  Following the parties' separation, appellant was ordered to pay $779 temporary child support and $500 temporary spousal maintenance.

At trial, appellant testified, "I am willing to continue spousal maintenance.  Not at what it has been set though."  He also testified that his own monthly expenses, excluding child support, were "roughly equivalent" to the combined monthly expenses of his wife and two children ($2,200), that he did not consider respondent to be underemployed although her net income was only $900 monthly, and that respondent was not living beyond the standard established during the marriage.

Appellant told the district court that his net annual income for child support purposes was $27,112.  The district court adopted this figure and set child support for two children at 30%, or $678.[1]   Child support will drop to $565, or 25%, in June 2003, when the older child graduates from high school and will cease in June 2006, when the younger child, then 18, graduates from high school.

The district court asked appellant about spousal maintenance.

Q.        [Y]ou understand and believe that [respondent] needs some money from you for maintenance?"

 

A.        Yes.

 

Q.        * * * [H]ow much do you think she needs a month?"

 

* * * *

 

A.        A month?  I figure about $300.

 

Q.        * * * [J]ust looking at knowing where she is living, what her expenses are, and that, you think she needs about three hundred?

 

A.        Yes, I do.

The district court awarded respondent $400 in permanent maintenance and explained the decision in a memorandum.[2]

Based on all the relevant circumstances, the Court finds that [respondent] is unable to provide adequate self-support in the absence of permanent maintenance.  This was a long-term marriage where the parties had disparate incomes.  [Respondent] has only a high school education, earning approximately $14,000 annually, which is an amount insufficient to provide for her reasonable needs.  * * *

           

                        Additionally, the lack of practical education beyond high school, in conjunction with her age and current employment, leads the Court to believe that without a maintenance award [respondent] will be unable to live even a close approximation of the lifestyle she enjoyed during the marriage.  This lifestyle entailed [respondent] assuming the traditional duties of homemaker in addition to her employment.  The standard of living established during the marriage, coupled with [respondent's] current financial condition and property division, supports the decision to award permanent maintenance.

                       

Concurrently, [appellant] has enjoyed a much greater earning capacity throughout the marriage.  [Appellant] has the financial ability to meet his own needs while making this modest maintenance payment.  * * *

 

            Appellant challenges both the amount and the duration of the maintenance award.

D E C I S I O N

Standard of review

            We review a district court's maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).

Notwithstanding his trial testimony that respondent needs $300 monthly, appellant now argues that respondent does not need maintenance because she will be filing an individual income tax return instead of a joint return with appellant and will receive $4,039 as earned income credit and $475 as a tax credit for a child under 17.  Appellant claims that this will raise respondent's annual after-tax income to $17,333, which, with $8,136 in annual child support, gives her $25,469 with which to meet annual expenses of $23,640.  There was no detailed testimony, expert or otherwise, regarding the parties' tax consequences of their marriage dissolution.  Moreover, appellant's tax claims assume appellant's payment of no maintenance.

 Appellant contends that the district court abused its discretion in failing to consider respondent's tax ramifications, but offers no support for the tacit suggestion that a district court, in awarding maintenance, must consider the probable tax consequences of the parties' filing individual returns.  A district court has discretion to consider or to avoid deciding tax consequences in dividing the parties property.  Maurer v. Maurer, 623 N.W.2d 604, 607 (Minn. 2001).  And without detailed evidence regarding tax consequences to the parties, a trial court's efforts are bound to be speculative.  Here, the district court did not abuse its discretion in declining to decide tax matters because there was insufficient evidence to support such a decision.

Nor did the district court abuse its discretion in making maintenance permanent.

Where there is some uncertainty as to the necessity of a permanent award, the court shall order a permanent award leaving its order open for later modification.

 

Minn. Stat. § 518.552, subd. 3 (2002).   Respondent's need for permanent maintenance is, at best, uncertain; accordingly, an award of permanent maintenance was appropriate.

Appellant also argues that the district court failed to consider appellant's inability to meet his own expenses.  But trial testimony indicated that some of appellant's claimed living expenses were speculative. 

For this court to conclude that the district court abused its broad discretion in awarding spousal maintenance, the district courts findings of fact must be "against logic and the facts on [the] record."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984) (citation omitted).  On this record, we cannot make that conclusion.  Instead, we conclude that the district court's finding that appellant has the financial ability to meet his own needs while paying $400 a month in permanent maintenance is not against logic or the facts on the record.

Affirmed.

[1] We note that, in section 3 of the district court's conclusions of law, the statutory deductions add up to $1,324, and that the court reduced appellant's gross monthly income by $1,024.  In its memorandum, the court explains that it further reduced appellant's net monthly income by $200, because he pays that amount in health insurance for the children.  This leaves appellant's net monthly income $100 lower than is accounted for.  The discrepancy, however, is not part of this appeal.

[2] Appellant asserted in his brief that he "is willing to pay maintenance of $300.00 per month until September 1, 2005."  However, in his testimony, he imposed no limit on respondent's need for maintenance.  He first limited what he would pay on 26 September 2002 in the letter submitted with his proposed findings of fact, conclusions of law, and order for judgment, in which he said he would provide financial assistance (maintenance) "in the amount of $300 per month for the next two to three years."