In re the Marriage of: Curtis L. Gold, petitioner, Appellant, vs. Marsha L. Gold, Respondent.

This opinion will be unpublished and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

A04-369

 

In re the Marriage of:

Curtis L. Gold, petitioner,

Appellant,

 

vs.

 

Marsha L. Gold,

Respondent.

 

Filed September 21, 2004

Affirmed

Parker, Judge*

 

Freeborn County District Court

File No. F3-00-673

 

 

John Burns, Burns Law Office, 115 Midway Bank Building, 14300 Nicollet Court, Burnsville, MN 55306 (for appellant)

 

Thomas J. Kraus, Kraus Law Offices, 1601 South State Street, P.O. Box 410, Waseca, MN 56093 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge; Halbrooks, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N

PARKER, Judge

            Curtis Gold appeals the district court's denial of his motion to reduce his permanent maintenance obligation, on the ground that his former wife, Marsha Gold, failed to make efforts to rehabilitate as required by the parties' dissolution judgment.  Because the district court did not abuse discretion in concluding that Curtis Gold failed to prove a substantial change of circumstances making the original award of permanent maintenance unreasonable and unfair, we affirm.  We decline, however, to consider Marsha Gold's request for appellate attorney fees until the receipt of a proper motion requesting those fees under the Minnesota Rules of Civil Appellate Procedure. 

FACTS

            Curtis and Marsha Gold were divorced in April 2001 after a 27-year marriage.  The dissolution judgment contained a provision ordering Curtis Gold, who was employed full-time as an x-ray technician with a net monthly income of $2,985, to pay permanent maintenance of $1,000 monthly to Marsha Gold, who was unemployed and had not worked outside the home for 15 years.  The district court concluded that permanent maintenance was mandated because it was not clear when or if Marsha Gold would be able to become employed, based on findings that she had a workers' compensation-related injury that resulted in a 25% permanent partial disability to her back, as well as asthma, depression, and insomnia, and that she was in need of a full hysterectomy.  The district court concluded that Marsha Gold must rehabilitate herself by seeking counseling for her depression as well as vocationally, and she should, if appropriate, consider seeking disability social security benefits.  The district court also ordered Curtis Gold to provide Marsha Gold with medical insurance coverage under 29 U.S.C. §§ 1161-69 (2000), the Consolidated Omnibus Budget Reconciliation Act (COBRA), for 18 months after the judgment and then to pay the premiums on a private policy for her.

            In November 2003, Curtis Gold moved for an order "[a]mending . . . the Judgment  . . . to modify the spousal maintenance obligations" to reduce maintenance to $500 for six months and then to terminate maintenance, arguing that his net monthly income had decreased and that Marsha Gold had failed to rehabilitate as required by the judgment.  In response, Marsha Gold moved for an order increasing maintenance and ordering the payment of COBRA insurance on the ground that Curtis Gold's income had increased since the dissolution, that she still suffered from depression and back pain as substantiated by a doctor's note,  and that she had no medical insurance because Curtis Gold had discontinued her from his insurance and did not pay the COBRA premium. Both parties also moved for attorney fees.

            In December 2003, the district court denied both motions for maintenance modification, finding that Curtis Gold's income appeared to be approximately the same as at the time of the dissolution and concluding that Curtis Gold had not proved a change in circumstances warranting a change in the amount of maintenance.  The district court ordered that Curtis Gold pay health insurance costs previously incurred by Marsha Gold, based on his admission that he had failed to provide the COBRA coverage and to follow the terms of the judgment concerning payment for additional insurance.  The district court also found that it was possible that Curtis Gold's failure to pay health insurance premiums was part of the reason that Marsha Gold had not been able to seek employment compatible with her disability.   The district court awarded Marsha Gold attorney fees.

            A month later, Curtis Gold moved for amendment of the previous order, requesting that maintenance be reduced, that he pay Marsha Gold's medical expenses during the time COBRA benefits would have been in place, and that attorney fees be denied.   In February 2004, the district court denied the request to amend the previous order, but deferred the request for medical reimbursement to allow Marsha Gold time to respond, and clarified that Marsha Gold was awarded need-based attorney fees.

Curtis Gold appeals that part of the district court's order denying his request to reduce permanent maintenance, arguing that Marsha Gold failed to fulfill her obligation to rehabilitate as required by the dissolution judgment.  Marsha Gold requests, by brief, appellate attorney fees.

D E C I S I O N

I.

Curtis Gold argues that the district court legally erred in construing his motion to reduce and then terminate maintenance as a motion to modify maintenance under Minn. Stat. § 518.64 (2002).  See Minn. Stat. § 518.64 (2002) (reciting standards for maintenance modification).  He contends rather that he is seeking to enforce the original judgment, which required Marsha Gold to rehabilitate.  See Kornberg v. Kornberg,  542 N.W.2d 379, 386 (Minn. 1996) (noting that district court judge retains power to implement or enforce provisions of judgment as long as substantive rights of parties are not changed).  We review the district court's conclusions of law on a de novo basis.  See Frost-Benco Elec. Ass'n v. Minn. Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984) (observing that an "appellate court need not give deference to a trial court's decision on a legal issue").

Curtis Gold specifically moved the district court for an order "[a]mending . . . the Judgment . . . to modify the spousal maintenance obligations" to reduce and then terminate maintenance.[1] He stated as a basis for his motion both his own reduced income and Marsha Gold's failure to rehabilitate.  The language of this motion does not request a clarification or enforcement of the existing dissolution judgment, but rather an amendment of the judgment, seeking modification.   The time for amending the original judgment had expired because more than 30 days had passed between the entry of judgment and the notice of motion to amend the findings.  See Minn. R. Civ. P. 52.02 (indicating that the time limit for a motion for amended findings is the same as that governing new trial motions); Minn. R. Civ. P. 59.03 (stating that the time limit for new trial motions is 30 days after service of notice by a party of filing of the decision).   The language of his motion and the relief requested places Curtis Gold's motion squarely within the ambit of a motion to modify maintenance under Minn. Stat. § 518.64 (2002), and the district court did not err in so considering it.

II.

A district court's decision on a motion to modify spousal maintenance is discretionary and will not be reversed absent an abuse of discretion.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  An abuse of discretion occurs when the district 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). 

In support of his argument that Marsha Gold failed in her duty to rehabilitate, Curtis Gold cites Youker v. Youker, 661 N.W.2d 266 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  In Youker, this court held that the evidence was insufficient to establish a change of circumstances warranting a change from temporary to permanent maintenance when a wife failed to rehabilitate by merely inquiring about employment.  Id. at 270-71.  But unlike Youker, this case involves an original order for permanent maintenance.  See Cisek v. Cisek, 409 N.W.2d 233, 237 (Minn. App. 1987) (observing that obligees of permanent maintenance do not generally have duty to become self-supporting), review denied (Minn. Sept. 18, 1987). If uncertainty exists concerning the necessity of a permanent maintenance award, the district court "shall order a permanent award leaving its order open for later modification."  Minn. Stat. § 518.552, subd. 3 (2002).  But Curtis Gold's assertion that Marsha Gold failed to make efforts to rehabilitate as ordered by the judgment does not relieve him of the burden, in moving for a reduction in maintenance, of demonstrating that changed circumstances make the existing order for maintenance unreasonable and unfair. See Minn. Stat. § 518.64, subd. 2 (2002) (stating that terms of order respecting maintenance may be modified on a showing of, among other factors, substantially increased or decreased earning or need of a party that makes the terms of the original order unreasonable and unfair); see also Beck v. Kaplan, 566 N.W.2d 723, 726 (Minn. 1997) (stating that the party seeking to modify maintenance bears burden of proving that a change of circumstances makes the original order unreasonable and unfair).

            The district court, in considering a motion to modify maintenance, applies the statutory factors for consideration that are relevant at the time of the motion. See Minn. Stat. § 518.552, subd. 2 (2002) (listing factors for consideration in awarding maintenance, including age and physical and emotional condition of the party seeking maintenance, as well as ability of party from whom maintenance is sought to meet needs while meeting needs of spouse seeking maintenance).  The record contains a doctor's note, written on a prescription form, stating that Marsha Gold is currently unfit for employment due to depression and chronic back pain.  This note constitutes sufficient evidence from which the district court could reasonably infer that Marsha Gold remained unemployable because of her chronic medical conditions.  See, e.g., Zamora v. Zamora, 435 N.W.2d 609, 612 (Minn. App. 1989) ("Given [maintenance recipient's] age, lack of highly marketable skills, limited financial resources, very poor health, and her inability to become self-sufficient in the last three years, it is unlikely that [she] will ever attain self-sufficiency.").  The district court also found that Curtis Gold's income was approximately the same as at the time of the divorce, and the record reflects that his assertion of decreased income was based on a calculation of income that erroneously included a deduction for spousal maintenance payments made to Marsha Gold.

Finally, the record supports the district court's determination that, given Marsha Gold's disability, Curtis Gold's failure to provide COBRA coverage to pay for her health insurance post-COBRA, as ordered in the judgment, may have affected her ability to seek employment.  Curtis Gold admitted that he did not pay the COBRA coverage, and Marsha Gold was unable to obtain her own medical insurance.   The district court did not abuse discretion in denying the motion to modify the order for permanent maintenance, and we affirm.  III.

            Marsha Gold requests an award of appellate attorney fees by brief.  Minn. R. Civ. App. P. 139.06 requires that a party seeking attorney fees on appeal "submit a request by motion under [Minn.] Rule [Civ. App. P.] 127."  Rule 127 provides for the filing of motions before the appellate court, and the rules allow the filing of a motion for appellate attorney fees within 15 days after the filing of the decision of this court. See Minn. R. Civ. App. P. 139.06 (providing that a motion for attorney fees be filed within the time for taxation of costs); Minn. R. Civ. App. P. 139.03 (providing that a motion for taxation of costs be filed within 15 days after filing of decision of appellate court).  The proper and timely filing of such a motion is a prerequisite for our consideration of that issue.

Affirmed.

 

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

 

[1] Curtis Gold appeals the district court's orders of both December 2003 and February 2004.  The February 2004 order denied Gold's "motion to amend" the December 2003 order concerning maintenance.  While the doctrines of res judicata and collateral estoppel do not apply to dissolution proceedings in a "technical sense," the general rule prohibiting relitigation of an issue that has already been adjudicated does apply.  Loo v. Loo, 520 N.W.2d 740, 743-44 (Minn. 1994).  Therefore, given the lack of any change of circumstances between the order of December 2003 and that of February 2004, our resolution of the appeal of the December 2003 order under the maintenance-modification standards governs the identical issue in the appeal of the February 2004 order.