In re the Marriage of: Richard A. Lisser, petitioner, Appellant, vs. Donna J. Lisser, Respondent.

In re the Marriage of: Richard A. Lisser, petitioner, Appellant, vs. Donna J. Lisser, Respondent. A05-2574, Court of Appeals Unpublished, December 20, 2006.

This opinion will be unpublished and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

A05-2574

 

In re the Marriage of: Richard A. Lisser, petitioner,
Appellant,

vs.

Donna J. Lisser,
Respondent.

 

Filed December 20, 2006

Affirmed

Peterson, Judge

 

Dakota County District Court

File No. FO-88-7993

 

DeAnne L. Dulas, Strandemo, Sheridan & Dulas, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN  55121 (for appellant)

 

Christopher J. Simones, Michael E. Molenda, Severson, Sheldon, Dougherty & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN  55124 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order modifying spousal maintenance, appellant-husband argues that the district court erred (1) in determining respondent-wife's income; (2) in determining husband's monthly expenses; (3) by not making the modification effective retroactively to the date of the motion; and (4) by not awarding him attorney fees.  We affirm.

FACTS

            The parties were divorced in December 1990, and a stipulated amended judgment was entered in March 1991.  The judgment required husband to pay wife $2,000 per month in spousal maintenance from November 1, 1990, through June 30, 1996, and commencing July 1, 1996, pay $1,800 per month as permanent spousal maintenance.  The maintenance award was based on husband's monthly income of approximately $7,000 and monthly expenses of $3,500 plus payments on outstanding debts.  Wife's net monthly income was $550, and a vocational expert opined that within three years, wife could expect to earn $23,000 per year.  Wife's monthly expenses for herself and one minor child were $3,182.[1] 

            On August 12, 2005, husband brought a motion to modify spousal maintenance based on a reduction in his net monthly income.  The district court found that husband's net income had fallen from approximately $7,000 per month to $5,661 and that the reduction was not attributable to any fault of husband.[2]  Husband submitted evidence of monthly expenses totaling $7,480, which did not include his spousal-maintenance payments.  This amount included expenses for husband's current wife and their four children.  Husband amended the amount to $5,816 to reflect only his expenses.  The district court found this amount to be unreasonable and found that husband's reasonable monthly expenses are $3,850. 

            The district court found that wife's net monthly income is $1,188, and noted that with shift differentials, "some months she may net $1300-$1400."  The court found that wife's reasonable monthly expenses are $2,820. 

            The district court concluded that there had been a change in circumstances that made the prior spousal-maintenance order unreasonable or unfair and set husband's monthly spousal maintenance payment at $1,368 beginning October 1, 2005.  This appeal follows.

D E C I S I O N

            "The standard of review on appeal from a trial court's determination of a maintenance award is whether the trial court abused the wide discretion accorded to it."  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  "That discretion must be examined in light of the controlling statutory guidelines contained in Minn. Stat. § 518.552 . . . , which contains a detailed enumeration of the several factors to be considered by the trial court."  Id.  A district court abuses its discretion regarding maintenance if its findings of fact are unsupported by the record or if it improperly applies the law.  Dobrin v. Dobrin, 569 N.W.2d 199, 202, 202 n.3 (Minn. 1997).  "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). 

1.         Husband argues that the hourly wage that the district court used as the basis for determining wife's income is not supported by the record and, therefore, the finding regarding wife's net monthly income is clearly erroneous.  The district court found that wife's net monthly income is $1,188 and that "[w]ith shift differentials some months she may net $1300-$1400."  The $1,188 amount is based on wife's affidavit, in which wife states that she earns an hourly wage of $11.15 and then applies this hourly amount to calculate a $23,192 gross annual income based on a 40-hour work week and 52 weeks in a year.  Husband contends that the $11.15 hourly wage that forms the basis for this calculation is not supported by the record and that because wife earns different pay rates depending on which shift she works, the most accurate method of calculating her gross income would be to average her hourly wage to reflect the impact of the shift differentials based on her actual work pattern.

            The calculation method that husband advocates produces an hourly wage rate almost equal to the $11.15 hourly rate that wife used to calculate her gross annual income.  Attached to wife's affidavit is a pay stub for the pay period that ended on June 4, 2005.  The pay stub indicates that wife had worked or received holiday or vacation pay for 879.5 hours in that payroll year and had received total shift-differential payments of $260 for the hours she worked.  The pay stub also indicates that wife's hourly pay rate was $10.90.  If the $260 in shift-differential payments that wife received were equally divided among the 879.5 hours for which wife was paid, wife would have received an additional 29.5 cents per hour.  See Veit v. Veit, 413 N.W.2d 601, 606 (Minn. App. 1987) (finding district court properly relied on an average of obligor's income to take into account fluctuations).  Adding 29.5 cents per hour to wife's $10.90 hourly pay rate would result in an $11.195 hourly rate, which is only 4.5 cents per hour more than the $11.15 hourly wage that wife stated she earned.  Although the record does not precisely support the $11.15 hourly wage used to determine wife's net monthly income, the 4.5 cents per hour difference is de minimis and is not a sufficient basis for us to conclude that the district court's finding regarding wife's net monthly income is clearly erroneous.  See Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985) (refusing to remand for de minimis error). 

            Husband also argues that the district court allowed deductions for two improper expenses when calculating wife's net monthly income.  The district court allowed a $41.60 deduction from wife's annual gross income for life insurance and a $3,200 deduction that wife described as a "withholding allowance."  Husband argues that under Minn. Stat. § 518.551, subd. 5 (2004), and Fitzgerald v. Fitzgerald, 629 N.W.2d 115 (Minn. App. 2001), the life-insurance payment and the withholding allowance are not allowed as deductions.  But Minn. Stat. § 518.551, subd 5(b), defines net income for purposes of determining child support, and Fitzgerald, 629 N.W.2d at 117-18, addresses the treatment of deductions when calculating net income for child-support purposes; neither the statute nor Fitzgerald applies to a maintenance award. 

            There is no statute that requires the district court to deduct specific expenses from gross income to determine net income when awarding maintenance.  Instead, the marital-dissolution statute provides that the district court may grant a maintenance order

if it finds that the spouse seeking maintenance:

            (a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

            (b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment . . . .

 

Minn. Stat. § 518.552, subd. 1 (2004). 

            When determining the amount of maintenance to award, the district court is to consider "all relevant factors," including "the financial resources of the party seeking maintenance . . . and the party's ability to meet needs independently."  Minn. Stat. § 518.552, subd. 2 (2004).  To consider wife's ability to meet her needs independently, the district court needed to determine wife's reasonable needs in light of the standard of living established during the marriage.  By allowing deductions from wife's gross income for life insurance and the withholding allowance the district court, in effect, recognized these items as elements of wife's reasonable needs.  With respect to the deduction for life insurance, we find no abuse of the district court's wide discretion.  But we find no basis in the record for treating the withholding allowance as a part of wife's reasonable needs.  At the hearing on husband's motion for amended findings, wife's counsel conceded that "[husband] is correct in the calculation as far as an error was made in including a withholding allowance that was, as [husband] puts it, fictitious and should not have been in there."  And in her appellate brief, wife repeats this concession. 

            This means that wife's reasonable needs are $3,200 less per year, or approximately $267 less per month, than the district court determined.  But this error, by itself, is not grounds for reversing the maintenance award.  To prevail on appeal, a party must show both error and resulting prejudice.  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975).  The district court ultimately decided to reduce husband's $1,800 monthly maintenance obligation by 24% based on the fact that husband's net income had been reduced by 24%.  The 24% reduction resulted in a $1,368 monthly maintenance obligation.  The district court found that before receiving maintenance, wife had a monthly budget shortfall of $1,632.  This amount included a $267 expense for the withholding allowance.  When the withholding allowance is removed from wife's budget, her monthly shortfall drops to $1,365, which is almost exactly equal to the $1,368 maintenance award.  Because the district court's amended findings explicitly show that the amount of the reduction of husband's maintenance obligation was based on the reduction in husband's income, and not on the shortfall in wife's monthly budget,[3] husband has not shown that he was prejudiced by the district court's error in determining wife's reasonable needs.

2.         Husband argues that his maintenance obligation must be reduced further or eliminated because the district court's findings regarding his monthly expenses are clearly erroneous.  Husband submitted evidence that his monthly expenses, including expenses for his wife and four children, are $7,480.  Based on his contention that this budget included basic expenses of maintaining any household, whether it is for six people or one, husband asserted that monthly expenses for him alone are $5,816.  The district court rejected this assertion and found that monthly expenses for husband alone are $3,850. 

            Husband argues that because the only evidence of his expenses in the record was the evidence that he presented, the district court erred in reducing his expenses.  But the district court was not required to accept husband's evidence regarding his monthly expenses.  See Varner v. Varner, 400 N.W.2d 117, 121 (Minn. App. 1987) (factfinder "is not required to accept even uncontradicted testimony if the surrounding facts and circumstances afford reasonable grounds for doubting its credibility") (citation omitted).  The evidence that husband submitted indicated that monthly expenses for the other five members of his household are $1,664, while monthly expenses for him alone are $5,816.  This apportionment of expenses is implausible on its face, and the district court was not required to accept husband's assertion that household expenses such as the mortgage and utility payments should be wholly attributed to husband.

            Husband is correct that there is not a specific evidentiary basis for the $3,850 expense amount found by the district court; but the district court could only consider the evidence that was presented, and husband did not present evidence that would have permitted the district court to more precisely identify the household expenses that should be attributed to him.  "On appeal, a party cannot complain about a district court's failure to rule in [his] favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question."  Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (citing Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (reciting rule in maintenance-modification context)), review denied (Minn. Nov. 25, 2003).  The district court did not clearly err in determining husband's reasonable expenses. 

3.         Husband argues that the district court abused its discretion by not making the maintenance modification retroactive to the date of service of the motion without making findings that justify using a later effective date.  A maintenance modification "may be made retroactive only with respect to any period during which the petitioning party has pending a motion for modification but only from the date of service of notice of the motion on the responding party."  Minn. Stat. § 518.64, subd. 2(d) (2004).  When used in a statute, "may" is permissive.  Minn. Stat. § 645.44, subd. 15 (2004).  Consequently, without making any findings regarding retroactive effect, a district court has discretion to make a maintenance modification retroactive to a day as early as the service date.  Kemp v. Kemp, 608 N.W.2d 916, 920 (Minn. App. 2000).  In addition, if the district court makes certain express findings, a modification may be applied to a period earlier than the date of service.  Minn. Stat. § 518.64, subd. 2(d). 

            Husband served and filed his motion on June 13, 2005.  In its August 29, 2005 order, the district court found that husband's maintenance obligation was unreasonable or unfair.  Husband argues that if his maintenance obligation was unreasonable and unfair on August 29, 2005, it was unreasonable and unfair on June 13, 2005, and the district court abused its discretion when it did not make the modification retroactive to June 13.  But under Minn. Stat. § 518.64, subd. 2(a) (2004), one of the requirements for modifying the terms of a maintenance order is that a change in circumstances has made the terms of the order unreasonable and unfair.  Consequently, if a finding that a maintenance order is unreasonable and unfair meant that it would be an abuse of discretion to not make a modification order retroactive, the only time that a modification order would not need to be retroactive is when the original maintenance order became unreasonable and unfair after a modification motion was filed, and most modification orders would be retroactive.  If the legislature had intended most modification orders to be retroactive, it would not have enacted a statute such as Minn. Stat. § 518.64, subd. 2(d), which restricts the circumstances under which the district court may make a modification order retroactive. 

            Husband's argument fails to recognize that even though the terms of a maintenance order have become unreasonable and unfair, modifying the order generally benefits one party at the expense of the other party.  The statute allows the district court to modify the relative burdens of the parties, but it also grants the district court discretion to determine when the modification takes effect.  Here, the district court did not make the modification retroactive, which reduced the benefit that husband will receive from the modification.  The district court could have chosen a different balance for the parties' relative burdens, but the balance it chose was not an abuse of its discretion.  Wife's income will drop, but the district court gave her additional time to deal with the reduction, and husband's maintenance obligation will be reduced, but only in the future.

4.         Husband argues that the district court abused its discretion by failing to award him attorney fees for having to respond to wife's motion for sanctions.  When husband moved for amended findings following the district court's August 29, 2005 order, wife responded with a motion requesting sanctions because husband brought his motion under Minn. R. Civ. P. 52.02, rather than requesting reconsideration under Minn. R. Gen. Pract. 115.11.  Husband opposed wife's motion and sought attorney fees pursuant to Minn. Stat. § 518.14 (2004) and Minn. Stat. § 549.211, subd. 4(a) (2004).   The district court found that husband's motion for amended findings was made in good faith and denied wife's motion for sanctions and husband's motion for attorney fees.

            An attorney-fee award under Minn. Stat. § 518.14 rests almost entirely within the discretion of the district court and will not be reversed without a clear abuse of that discretion.  Mize v. Kendall, 621 N.W.2d 804, 807, 807 n.3 (Minn. App. 2001), review denied (Minn. Mar. 27, 2001).  Husband has not shown that the district court abused its discretion when it denied his request for attorney fees incurred responding to wife's motion for sanctions.

            Affirmed.

[1] The parties' youngest child has been emancipated for several years.

[2] Husband works in the airline industry, and his employer reduced his salary.

[3] After finding that husband's net income had been reduced by 24%, the district court stated, "Although [husband] has been subjected to a decrease in income through no fault of his own, [wife] should not be required to bear the complete hardship by eliminating her spousal maintenance."  By reducing husband's maintenance obligation by 24%, the district court required wife to bear a proportionate share of the hardship caused by the reduction in husband's income.