In re Todd Walter Norton, petitioner, Respondent, vs. Elizabeth Jane Norton, Appellant.

In re Todd Walter Norton, petitioner, Respondent, vs. Elizabeth Jane Norton, Appellant. A04-876, Court of Appeals Unpublished, January 11, 2005.

This opinion will be unpublished and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

A04-876

 

 

In re Todd Walter Norton,

petitioner,

Respondent,

 

vs.

 

Elizabeth Jane Norton,

Appellant.

 

 

Filed January 11, 2005

Affirmed as modified
Crippen, Judge*

 

Hennepin County District Court

File No. DC 274044

 

Roselyn J. Nordaune, Nordaune & Friesen, 1140 Interchange Tower, 600 South Highway 169, St. Louis Park, MN 55426 (for respondent)

 

Amy L. Helsene, Zalk & Bryant, PA, 5861 Cedar Lake Road, Minneapolis, MN 55416; and

 

Kevin J. McGrath, Jensen, McGrath & Mullen, PLLP, 7900 Xerxes Ave. South, Suite 1350, Bloomington, MN 55431 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Huspeni, Judge;* and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            On appeal from the judgment dissolving her marriage to respondent Todd Norton, appellant Elizabeth Norton challenges the district court's award of rehabilitative rather than permanent maintenance.  Because the court's findings of fact regarding appellant's ability to become self-sufficient are adequate, we affirm the maintenance award.  Appellant's other arguments, except for her challenge to the finding of respondent's expenses, lack merit.  We therefore affirm as modified. 

FACTS

            The parties were married for 22 years.  With the exception of five years when she did not work outside the home, appellant had various formal employments.  At the time of the dissolution, appellant was working 32 hours per week for a school district during the school year.  In addition, she had also temporarily done health-care work.  After a trial to a referee, the district court approved a dissolution judgment awarding appellant physical custody of the parties' remaining minor child, rehabilitative maintenance, and child support.  Following the denial of most of appellant's posttrial motion, she appeals. 

D E C I S I O N

1.  Duration of Maintenance Award

            Absent an abuse of the district court's "wide discretion" in setting maintenance, its ruling "is final."  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982); see Minn. Stat. § 518.552 (2002) (listing factors to be considered in addressing maintenance). Uncertainty about a maintenance recipient's ability to become self-supporting requires an award of permanent maintenance.  Minn. Stat. § 518.552, subd. 3; Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987).  But we are not to 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).  Maintenance-related findings of fact must be upheld unless they are clearly erroneous.  McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

            Appellant argues that the findings of fact are inadequate to review the maintenance award.  See Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989) (holding that inadequate maintenance findings require remand).  We must accept the district court's statement that it considered the relevant factors.  See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546 (1949) (stating appellate courts cannot assume district court error); see also Dobrin v. Dobrin, 569 N.W.2d 199, 201-02 (Minn. 1997) (noting maintenance factors were implicitly addressed).  The district court made findings on the parties' incomes and expenses and, regarding duration, stated that a four-year maintenance award allowed appellant "adequate" time "to seek training and skills for a job position and/or to seek employment opportunities to assist her in meeting her monthly needs."  The court also demonstrated its knowledge of the parties' marital standard of living by making numerous findings addressing the parties' incomes, expenses, and property.  These findings allow review of the maintenance award. 

            Appellant argues that the district court overstated her annual income by including approximately $2,750 she earned while providing health care, stating that the job is no longer available and that imputing income to her is contrary to Carrick v. Carrick, 560 N.W.2d 407, 410 (Minn. App. 1997) (precluding district court from finding bad-faith underemployment, where person has employment similar to that before dissolution and there is no intentional reduction of income to obtain maintenance).  But (1) because appellant's primary job is during the school year, she is not precluded from summer work; (2) limiting appellant's income to only that earned by working 32 hours per week during the school year would require respondent to support appellant during the summer when she was unemployed, despite respondent's monthly budget deficit; and (3) although appellant's annual income increased by $12,049 between 1999 and 2002, the finding of her income does not assume any increase in her income.  Under these circumstances, Carrick is not dispositive.  Because appellant engaged in supplemental employment, she has the ability to do additional work.  And noting appellant's employment history, the posttrial order refused to characterize appellant as a "traditional ‘stay-at-home mother.'"  Appellant has not shown that the district court overstated her income.[1]  Moreover, because respondent has a monthly deficit, he lacks the ability to pay additional maintenance in the event appellant's income is recalculated.

            The district court awarded appellant $1,018 in monthly child support and, for four years, $800 in monthly rehabilitative maintenance.  The court found appellant's net monthly income and expenses to be $1,198 and $3,640, respectively.  Appellant argues that because it is not certain that retraining will allow her to become self-sufficient, she is entitled to permanent maintenance under Minn. Stat. § 518.552, subd. 3. 

            The district court noted that appellant "expresses no interest in obtaining additional employment nor does she intend to seek any job training skills."  But the court also found that (1) appellant "has no physical or mental disabilities that prohibit her from earning an income"; (2) appellant is "currently on a career path with a high earning capacity"; and (3) four years of rehabilitative maintenance "allows [appellant] ample time to acquire summer employment and/or receive job training skills to further her career as a paraprofessional."  We might have ruled otherwise, but after reviewing the record, we cannot conclude that appellant showed as a matter of law the uncertainty entitling her to permanent maintenance.  Cf. Rohling v. Rohling, 379 N.W.2d 519, 524 (Minn. 1986) (reversing this court's reversal of district court's maintenance award, noting maintenance awards are to be affirmed if they have a basis in fact and principal, even if this court would have ruled differently).

2.  Other Issues

            Respondent's Income

            Appellant challenges the district court's five percent reduction of respondent's income to account for the reasonable retirement contribution allowed by Minn. Stat. § 518.551, subd. 5(b) (2002).  She argues that respondent recently has not made the contribution and that the record does not show a five percent contribution is reasonable.  Whether a retirement contribution is reasonable is addressed on a case-by-case basis.  See State ex rel Rimolde v. Tinker, 601 N.W.2d 468, 471 (Minn. App. 1999) (stating reasonableness of retirement contribution "may be established in a variety of ways" and reciting ways to do so).

            The record shows that respondent stopped making retirement contributions at about the time the parties' separation caused him to start making payments to or on behalf of appellant, that appellant makes a non-optional five percent retirement contribution through her employer, and that respondent wants to make retirement contributions but is financially unable to do so.  On this record, the district court did not abuse its discretion by allowing respondent a retirement contribution of the same relative size as that of appellant. 

            Appellant also challenges the finding of respondent's income because it does not account for the tax impact of the maintenance award.  The district court's refusal to adopt the related testimony of respondent's financial expert suggests that it found that testimony not credible.  Also, there is no indication that the tax impact of the maintenance award would overcome respondent's monthly deficit and allow him to pay additional maintenance.  The district court did not abuse its discretion by failing to adjust for the tax implications of the maintenance award.  Cf. Maurer v. Maurer, 623 N.W.2d 604, 607 (Minn. 2001) (noting that consideration of tax implications of property division is discretionary with district court and discretion is not abused if information to consider those implications is not presented).

            Respondent's Expenses

            In finding respondent's monthly expenses ($2,894.83), the district court allowed respondent a $100 monthly retirement contribution in addition to the five percent reduction of his income.  The posttrial order accepted appellant's argument that this analysis improperly allowed respondent two retirement contributions, but the court did not amend the finding accordingly.  Appellant challenges this finding and we modify respondent's monthly expenses figure to $2,794.83. 

            Other Findings of Fact

            Appellant also challenges other district court findings, explicit or implicit, including those addressing the parties' marital standard of living, the extent of appellant's sacrifice during the marriage, and the parties' vacations.  Findings of fact will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  Upon careful review of the record and appellant's challenges to the findings, we conclude that the record adequately supports the findings.  See Wilson v. Moline, 234 Minn. 174, 182, 47 N.W.2d 865, 870 (1951) (stating appellate court need not "discuss and review in detail the evidence for the purpose of demonstrating that it supports the trial court's findings," and that court's "duty is performed when [it] consider[s] all the evidence . . . and determine[s] that it reasonably supports the findings"); Vangsness v. Vangsness, 607 N.W.2d 468, 474-75 & n.1 (Minn. App. 2000) (applying Wilson in dissolution case). 

            Automatic Payment

            Appellant argues that this court should require automatic withdrawals from respondent's account to assure payment of maintenance and support.  But the district court found that respondent was "timely in making support payments within the month due," and appellant's argument that respondent "agreed" to automatic withdrawals stretches the meaning of his testimony that he would "consider" automatic withdrawals.  Also, while appellant's proposed amended findings included an automatic-payment provision, neither her motion proposing the finding nor her accompanying memorandum alleged the lack of automatic payment as an error.  In these circumstances, we cannot require the district court to provide for automatic payment.

            Attorney Fees

            Under Minn. Stat. § 518.14, subd. 1 (2002), a court may award need-based and conduct-based attorney fees.  Because appellant, on appeal, does not identify conduct by respondent that would support an award of conduct-based attorney fees and does not explain how she was prejudiced by the district court's alleged wrongful use of certain exhibits, we cannot alter the court's decision denying conduct-based attorney fees.  See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (requiring party to show error and prejudice to prevail on appeal).  Also, because respondent has a monthly deficit after considering his income, corrected expenses, and his support and maintenance obligations, he lacks the ability to pay need-based attorney fees.  Thus, the district court's refusal to award appellant need-based fees was "not improper."  Peterka v. Peterka, 675 N.W.2d 353, 360 (Minn. App. 2004); see Minn. Stat. § 518.14, subd. 1(2) (stating need-based fee award requires obligor to have ability to pay fees).

            Affirmed as modified.

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

[1] Appellant also seems to argue that imputing the income to her violates Minn. Stat. § 518.551, subd. 5(b) (2002).  But that statute is used to calculate the net monthly income of child-support obligors, precluding consideration of certain income earned by working more than 40 hours per week.  Appellant is not a child-support obligor and the district court's calculation does not assume that she will work more than 32 hours per week.