Norman Leppala, petitioner, Appellant, vs. Nanette Leppala, n/k/a Nanette Beckman, Respondent.

Norman Leppala, petitioner, Appellant, vs. Nanette Leppala, n/k/a Nanette Beckman, Respondent. A05-59, Court of Appeals Unpublished, July 19, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-59

 

Norman Leppala, petitioner,

Appellant,

 

vs.

 

Nanette Leppala, n/k/a Nanette Beckman,

Respondent.

 

Filed ­­­July 19, 2005

Affirmed

Dietzen, Judge

 

St. Louis County District Court

File No. F1-98-102094

 

Andrew J. Phillips, Phillips Law Office, Ltd., 412 First Street South, Virginia, MN 55792 (for appellant)

 

Patrick J. Roche, Paul D. Cerkvenik, Trenti Law Firm, 225 First Street North, Suite 1000, P.O. Box 958, Virginia, MN 55792 (for respondent)

 

            Considered and decided by Hudson, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            In this post-dissolution proceeding, appellant challenges the district court's denial of his motion for spousal maintenance.  Because the district court did not abuse its discretion when it denied the motion and awarded respondent $1,000 in attorney fees, we affirm. 

FACTS

In 1998, after 40 years of marriage, appellant Norman Leppala commenced a dissolution proceeding against respondent Nanette Leppala.  At the time of the dissolution, appellant was retired and received his primary source of income from three pensions.  Respondent was a homemaker and worked part-time as a caterer.  The parties' monthly expenses were similar: Appellant claimed $1,400, which included a $400 mortgage payment, and respondent claimed $1,500.  The district court divided the parties' property, which consisted of the homestead (awarded to appellant after he reimbursed respondent for her equity), the three pensions (values split approximately equally between the parties), appellant's $50,000 life-insurance policy (awarded to respondent), and various bank accounts, but reserved the issue of spousal maintenance.

            More than five years after the initial dissolution, appellant moved for an award of spousal maintenance.  Appellant presented an affidavit stating that his monthly expenses were $3,593, which included expenses for cosmetics, entertainment, vacations, and miscellaneous items.  Appellant's affidavit contended that respondent's monthly income for maintenance purposes should increase because she was eligible for Tier 1 divorced-spouse railroad-retirement benefits (Tier 1) andone-half of appellant's social security benefits.  Since the dissolution, appellant (1) sold the homestead, valued at $105,000, for $200,000; (2) bought a trailer in Arizona; and (3) bought a one-week timeshare in Florida.  Additionally, appellant stated in an affidavit that he lives six months of the year rent-free in his significant other's residence in Minnesota.    

The district court denied appellant's motion for spousal maintenance, finding that any increase in expenses was "voluntarily incurred" and that respondent was not eligible to collect both Tier 1 and social security benefits.  The district court added that even if respondent could collect Tier 1 benefits in the amount of $462 per month, she would have a net income of $662 per month, exclusive of pension income, which did not provide her with the means to pay spousal maintenance.  The district court also awarded respondent $1,000 in attorney fees.  This appeal followed.

D E C I S I O N

I.

Spousal Maintenance

            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).  A district court abuses discretion regarding maintenance if the findings of fact are unsupported by the record or if the court improperly applies the law.  Id. at 202 & n.3.  "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous."  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992). 

            Appellant contends that the district court applied an incorrect standard when evaluating his claim, specifically, that he was required to show a "substantial change in circumstances" to be awarded spousal maintenance.  A party seeking modification of spousal maintenance must show a substantial change in circumstances, such as a considerable increase or decrease in the earnings or needs of a party.  Minn. Stat. § 518.64, subd. 2(a) (2004).  But in this case, as appellant observes, the district court initially reserved the issue of spousal maintenance.  When spousal maintenance is reserved, upon a party's subsequent request for maintenance, the district court must make a "determination . . . based upon the facts and circumstances existing at the time the application is made, as if the entire action had been brought at the later date."  Harder v. Harder, 312 Minn. 300, 302, 251 N.W.2d 703, 704 (1977).  Because appellant brought the motion for spousal maintenance after the district court reserved the issue, he did not have the burden to show a substantial change in circumstances, but rather was subject to the statutory criteria set forth in Minn. Stat. § 518.552 (2004). 

            Under Minn. Stat. § 518.552, appellant is entitled to spousal maintenance only if, taking into account marital property already apportioned, he lacks sufficient property to provide for his reasonable needs or if he is unable to support himself through appropriate employment.  Id., subd. 1.  Factors to be considered when awarding maintenance include, inter alia: (1) the financial resources of the spouse seeking maintenance; (2) the age and physical and emotional condition of the spouse seeking maintenance; and (3) the ability of the payor spouse to contribute maintenance payments.  Id., subd. 2.  The district court is not required to make findings of fact for each factor considered.  Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986), review denied (Minn. May 29, 1986).

Here, we agree with the district court that the record does not support appellant's request for spousal maintenance.  First, the record does not indicate that appellant lacks sufficient property to provide for his reasonable needs or is unable to provide adequate self-support.  See Minn. Stat. § 518.552, subd. 1.  In the original dissolution, appellant was awarded the right to purchase the parties' homestead, as well as the right to pension proceeds and banking accounts, for a total property award of $258,724.  After the dissolution, appellant purchased respondent's marital equity to the homestead for $50,000, then sold the homestead for $200,000.  Additionally, appellant purchased a one-week timeshare in Florida and a trailer in Arizona, which serves as his residence for approximately six months each year.  Appellant alleges that his health requires him to live in Arizona in the winter, but he provides no medical support for that allegation.  During his six months in Minnesota, appellant lives rent-free with his significant other.  Given his substantial property award and his purchases since the dissolution, the district court correctly concluded that appellant did not demonstrate he is in need of spousal maintenance. 

            Appellant also submitted a monthly budget of $3,593, but after deducting his $400 mortgage payment from the sold homestead, appellant's revised budget was $2,500 more than his budget submitted for the dissolution, and the district court found that appellant's increased expenses were "voluntarily incurred."  See id., subd. 2(a) (providing that district court must consider financial resources of spouse seeking maintenance).  We agree with the district court that the reasonableness of such an increase in expenses is not supported by the record. 

            Second, the district court's conclusion that respondent is not able to pay spousal maintenance is supported by the record.  See id., subd. 2(g) (providing that "ability of the spouse from whom maintenance is sought to meet needs while meeting those of the spouse seeking maintenance" is factor to consider when awarding maintenance).  Respondent receives approximately $1,466 in monthly income, $1,266 of which is pension income awarded to her as part of the property division in the dissolution.  Because it was part of the property award, the pension income cannot be considered for spousal maintenance purposes until respondent withdraws an amount equivalent to its property award value determined at the time of the decree.  See Kruschel v. Kruschel, 419 N.W.2d 119, 123 (Minn. App. 1988) (holding that maintenance may not be ordered paid from pension payments until recipient has received from pension an amount equivalent to its value as determined in original property distribution).  As of September 2004, appellant had received a total payout of $78,490less than half of the pensions' property award values at the time of the decreeso respondent's non-pension income for spousal maintenance purposes is approximately the $200 per month she earns from employment.  We agree with respondent that her property interests in her pensions are far too meager to support a maintenance payment to appellant.  See id. (holding that payor spouse's property interest in pension may be considered in determining propriety or amount of maintenance payments); see also Minn. Stat. § 518.552, subd. 2(g) (providing that payor spouse must have adequate income to support self).    

Appellant also claims that respondent will receive increased income by being eligible for Tier 1 divorced-spouse railroad-retirement or social security benefits, but as the district court found, the additional payments would only increase respondent's monthly non-pension income to approximately $662, which the district court concluded would not allow her to meet her own needs and also pay maintenance.  SeeMinn. Stat. § 518.552, subd. 2(g).  As respondent states in her brief, if she defers her application for Tier 1 or social security benefits to a later date, the monthly benefits she ultimately recovers will be for a greater amount.  As a result, she has elected to delay her application.  There is not a provision in the spousal maintenance statute allowing a court to "garnish" the future retirement benefits for the purpose of paying maintenance to appellant.  In summary, the district court did not abuse its discretion when it denied appellant's motion for spousal maintenance.       

II.

Attorney Fees

            Appellant challenges the district court's $1,000 award of attorney fees to respondent, arguing that the court did not make findings on the issue and respondent did not present evidence of incurred fees.  Minn. Stat. § 518.14, subd. 1 (2004), allows for both conduct-based and need-based attorney fees.  To award conduct-based fees, the district court must identify the offending conduct, it must have occurred during the litigation process, and it must have unreasonably contributed to the length or expense of the proceeding.  Id.; Geske v. Marcolina, 624 N.W.2d 813, 818-19 (Minn. App. 2001).  "The standard of review for an appellate court examining an award of attorney fees . . . is whether the district court abused its discretion."  Minn. Council of Dog Clubs v. City of Minneapolis, 540 N.W.2d 903, 904 (Minn. App. 1995), review denied (Minn. Jan. 25, 1996). 

            First, the district court briefly identified appellant's offending conduct, stating that his motion was "without support in the law or the facts."  Second, because appellant brought a motion for spousal maintenance, his conduct occurred during the litigation process.  Third, the district court's finding that there were not "any facts to support [appellant's] claim" warrants a conclusion that the claim unreasonably contributed to the length or expense of the proceeding.  Appellant argues that there was no finding that he acted in bad faith, but such a finding is not required when awarding conduct-based attorney fees.  See Geske, 624 N.W.2d at 818 ("While bad faith could unnecessarily increase the length or expense of a proceeding, it is not required for an award of conduct-based attorney fees . . . .").  Appellant also argues that respondent did not provide a bill stating her attorney fees.  But respondent stated in an affidavit that her fees were more than $1,000, and because conduct-based attorney fees are awarded in the discretion of the district court, an itemized billing statement is unnecessary in this case.  Minn. Stat. § 518.14, subd. 1 (stating that nothing in statute precludes district court from making discretionary award of conduct-based attorney fees).  We affirm the district court's award of attorney fees to respondent.

            Affirmed.