In re the Marriage of: Jonathan H. Ginsburg, petitioner, Appellant v. Julie K. Gordon, Respondent.

In re the Marriage of: Jonathan H. Ginsburg, petitioner, Appellant v. Julie K. Gordon, Respondent. A06-2194, Court of Appeals Unpublished, August 28, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA
A06-2194
IN COURT OF APPEALS

 

 

In re the Marriage of:
Jonathan H. Ginsburg, petitioner,
Appellant,

vs.

Julie K. Gordon,
Respondent.

 

 

Filed on August 28, 2007

Affirmed; motion denied
Dietzen, Judge

 

Ramsey County District Court

File No. F1-01-1751

 

Jonathan H. Ginsburg, 2127 Lincolnwood Drive, Evanston, IL 60201 (pro se appellant)
 
Jane Binder, Christine Howard, Binder Law Offices, P.A., 700 Rand Tower, 527 Marquette Avenue, Minneapolis, MN 55402 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Dietzen, Judge; and Muehlberg, Judge.*

 

U N P U B L I S H E D   O P I N I O N

DIETZEN, Judge

            In this postdissolution proceeding, appellant challenges the district court order denying his motion to reduce or terminate spousal maintenance, arguing that the court abused its discretion in not finding a substantial change in circumstances that rendered the original award unfair and unreasonable.  Because the district court properly applied the law and did not abuse its discretion, we affirm.

FACTS

Appellant Jonathan Ginsburg and respondent Julie Gordon were married 22 years and had two children during the marriage.  Appellant and respondent were co-senior rabbis at Temple of Aaron Synagogue in St. Paul.  When appellant petitioned for divorce, respondent was dismissed from her position as co-senior rabbi. 

The dissolution judgment was entered in 2003.  The district court found that appellant's income was $160,000 per year plus $200 to $400 per month in honoraria for the fiscal year ending June 30, 2003, and that his income was expected to increase to $187,000 for the fiscal year ending June 30, 2007, plus honoraria income.  Respondent's annual income was about $57,000.  The parties stipulated and the district court ordered joint legal and physical custody of the two minor children, and that appellant would pay monthly child support of $533.20 and monthly spousal maintenance of $3,200. 

            Subsequently, appellant lost his position at Temple of Aaron and later remarried and moved to the northern suburbs of Chicago.  Appellant is currently employed as a rabbi for a synagogue in that area.  In July 2006, appellant brought a motion to reduce or eliminate his spousal maintenance obligation.

At the September 2006 hearing, appellant argued that his new position in Illinois resulted in a decrease in his net income to $9,100 per month and an increase in his expenses to $10,500 per month.  Also, he argued that respondent's annual income increased to $82,000, plus honoraria.

Following the hearing, the district court filed its findings of fact, conclusions of law, and order denying appellant's motion to modify spousal maintenance, concluding that appellant's obligation is not unreasonable or unfair.  This appeal follows.[1]

D E C I S I O N

I.

Appellant argues that the district court abused its discretion in not concluding that there had been a substantial change in circumstances since the original judgment and decree that rendered the award of permanent spousal maintenance unfair and unreasonable.  Whether to modify maintenance is discretionary with the district court.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion 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 (Minn. 1997).  Maintenance-related findings of fact are upheld unless clearly erroneous.  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

Maintenance can be modified if a party shows both a substantial change in circumstances and that the change renders the existing maintenance amount unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2004);[2] see also Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  Changed circumstances under Minn. Stat. § 518.64, subd. 2, include a substantial change in the income or expenses of either or both parties.  Minn. Stat. § 518.64, subd. 2(a)(1), (2).  Circumstances in existence at the time the parties' marriage was dissolved, or changed circumstances that could have been anticipated, are not a basis for modifying spousal maintenance.  Beck, 566 N.W.2d at 726-27.

The parties originally stipulated to their respective rights and obligations including spousal maintenance.  But after a stipulation is merged into a judgment and decree, it does not operate as a bar to later consideration of whether a change in circumstances warrants a modification.  Hecker v. Hecker, 568 N.W.2d 705 (Minn. 1997).  In Hecker, our supreme court concluded that the "relevance" of a stipulation in the context of a petition for modification "is in the identification of the baseline circumstances against which claims of substantial change are evaluated.  We review the trial court's analysis of the claims of substantial change to determine whether it carefully exercised its discretion in modifying the terms of the original judgment and decree which incorporated the parties' stipulation." 

The stipulated dissolution judgment includes findings of the parties' gross incomes at the time of the judgment and an award of spousal maintenance, but lacks findings of net income and reasonable monthly expenses at the marital standard of living.  See Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Minn. 1982) (stating that when determining the amount of maintenance, the issue is basically the financial needs of the recipient the recipient's ability to meet those needs balanced against the financial condition of payor); see also Minn. Stat. § 518.552, subds. 1, 2(c) (2006) (requiring reasonable monthly expenses for maintenance purposes to be measured at the marital standard of living); Chamberlain v. Chamberlain, 615 N.W.2d 405, 409-12 (Minn. App. 2000) (discussing importance of marital standard of living when addressing maintenance recipient's reasonable monthly expenses), review denied (Minn. Oct. 25, 2000).  Failure to identify the baseline circumstances at the time of the original decree, that is, net income and expenses, unduly complicates appellant review, and requires that we more carefully scrutinize the district modification order on appeal.  Hecker, 568 N.W.2d at 709. 

Appellant argues that the district court erred in refusing to modify spousal maintenance because (1) his income has not increased as expected; (2) his expenses involuntarily increased; and (3) respondent's income has greatly increased since the dissolution, creating a substantial change in circumstances warranting modification.

A.        Appellant's Income and Expenses

Appellant argues that his income is substantially less than estimated at the time of the dissolution judgment.  The district court found that:

At the time of entry of the Judgment and Decree there was an expectation that [appellant's] income would increase.  [Appellant's] income did not increase, but that fact does not make the terms of the Judgment and Decree unreasonable and unfair.  [Appellant's] income is very close to the income he was earning at the time the Judgment and Decree was entered.  Therefore, there has been no substantial change in [appellant's] income. 

 

We agree.  Appellant's current income is similar in the amount he received when the dissolution judgment was entered. 

Appellant argues that his expenses increased because he was forced to move to Chicago for employment and has the additional obligation to support his stepchildren.  The district court concluded that:

[Appellant's] reasonable monthly expenses at the time the Judgment and Decree was entered were $5,412.00, not including his spousal maintenance and child support obligations.  [Appellant] has voluntarily added additional obligations to his monthly expenses and voluntarily increased other expenses.

 

The court found that appellant's increased expenses were voluntarily assumed.  This finding is consistent with the portion of the notice in the statutorily required appendix to the dissolution judgment which states:  "a party who accepts additional obligations of support does so with the full knowledge of the party's prior obligation under this proceeding."  Minn. Stat. § 518.68, subd. 1, 24(e) (2004).  Thus, we see no basis to reverse the district court's determination that there was no substantial change in circumstances relating to appellant's expenses.  See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating that although they may not be specific, if the findings indicate that the relevant statutory factor has been considered, a remand is not appropriate).

            Appellant also argues that the cost of housing in Chicago is considerably higher.  But the district court concluded that appellant failed to present credible evidence regarding specific differences in the cost of housing.  See id. (stating that a party cannot complain where failure to provide adequate documentation leads to denial of a motion to reduce maintenance); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that appellate courts defer to district court credibility determinations).

Here, appellant's income did not increase and his expenses increased but that increase was due primarily to expenses he voluntarily assumed.  The voluntary addition of these costs does not require a modification of the maintenance obligation.  See Minn. Stat. § 518.68, subds.1, 2.  Thus, the district court's conclusion that there has been no substantial change in appellant's income and relevant expenses is supported by the record. 

 

B.        Respondent's Income and Expenses

Appellant next argues that respondent's income has significantly increased and, therefore, there has been a substantial change.  The district court found that respondent's annual income had increased from about $57,000 to about $82,000 resulting in current net monthly income of about $4,500, and that "respondent currently experiences a shortfall of approximately $2,000 per month in meeting her reasonable monthly needs."  The district court found that respondent's income increased, but that her "reasonable monthly expenses have also increased."

Appellant argues that the maintenance award far exceeds respondent's actual needs.  We agree that monthly spousal maintenance of $3,362 results in a payment of $1,138 over respondent's monthly needs.  But spousal maintenance is generally taxable to the recipient.  26 U.S.C.A. § 71(a) (West 2002).  Thus, respondent must receive enough maintenance that the net after-tax award is sufficient to meet her reasonable monthly expenses.  For this reason, respondent's monthly maintenance award is not excessive merely because it exceeds her monthly shortfall.

Further, the district court specifically found that:

The Judgment and Decree awards respondent permanent spousal maintenance, not rehabilitative maintenance, and respondent has no duty to improve her financial circumstances, so that [appellant's] spousal maintenance obligation can be reduced.  Respondent has no duty to pursue alternate or better employment where she currently resides, nor does she have a duty to relocate and pursue employment in another venue. 

 

Permanent maintenance is compensatory in nature.  Borchert, 391 N.W.2d at 76.  A party's monthly expenses for maintenance purposes are not measured by actual expenditures, but by the marital standard of living.  Minn. Stat. § 518.552, subds. 1, 2(c) (2004); see Chamberlain v. Chamberlain, 615 N.W.2d 405, 409-12 (Minn. App. 2000) (discussing importance of the marital standard of living in addressing maintenance recipient's reasonable monthly expenses), review denied (Minn. Oct. 25, 2000). 

Here, due to respondent's training and job history, it was foreseeable that her salary would increase.  But we do not decrease or terminate spousal maintenance solely because a recipient's change in employment status was foreseeable at the time of the original award.  Tuthill, 399 N.W.2d at 232.  Prior to the dissolution, respondent shared an annual income of $220,000 and lived in a 4,000 square-foot home in St. Paul.  On this record, the district court's findings are not clearly erroneous.  See Borchert, 391 N.W.2d at 76 ("Permanent maintenance is compensatory in nature.").

Appellant also argues that the parties' youngest child is emancipated and, therefore, respondent has the ability to relocate and obtain a higher paying position but refuses to do so.  But courts "cannot force a spouse to work at a specific job."  Flynn v. Flynn, 402 N.W.2d 111, 114 (Minn. App. 1987), review denied (Minn. Nov. 24, 1987).  The child's emancipation was foreseeable in 2003 when appellant agreed to the permanent spousal maintenance obligation.  Tuthill, 399 N.W.2d at 232.  Therefore, the district court's conclusion is supported by the record. 

Next, appellant suggests permanent maintenance is reserved for the exceptional case," and relies on Gales v. Gales, 553 N.W.2d 416, 421 (Minn. 1996).  But the supreme court later stated that Gales did not change the law but rather applied the criteria of Minn. Stat. § 518.522, subd. 2.  See Chamberlain, 615 N.W.2d at 411 (rejecting idea that Gales requires an "exceptional case" for permanent maintenance).  More importantly, the question before the district court and on appeal is not whether the original award of spousal maintenance was justified, but whether appellant met his burden of showing a substantial change in circumstances since the original award of spousal maintenance rendering it unfair and unreasonable.  On this record, the district court did not abuse its discretion. 

            Finally, appellant implies that he was denied equal protection of the laws based on his sex.  Specifically, he argues that requiring him to support respondent even though she has the same training and earning capacity violates anti-discrimination laws.  But appellant has failed to adequately brief the issue.  Issues not briefed on appeal are waived.  Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982).  Pro se appellants are generally held to the same standards as attorneys and, in the absence of adequate briefing, we decline to reach the issue.  State Dep't of Labor and Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997). 

II.

Respondent argues that she is entitled, under Minn. Stat. § 518.14 (2006), to need-based and conduct-based attorney fees for the appeal portion of this litigation.  Under section 518.14, attorney fees may be awarded in an amount necessary to enable the party to carry on the litigation, provided that the request is made in good faith, the party against whom the fees are sought has the ability to pay them, and the party requesting the fees does not have the means to pay them.  "Although fees are often awarded in actions to enforce the terms of a judgment of dissolution . . . the specific facts of a case may warrant the denial of fees."  Yeager v. Yeager, 405 N.W.2d 519, 523 (Minn. App. 1987).

Here, respondent's salary and spousal maintenance give her a combined annual income of over $120,000 a year.  We conclude she is not in financial need and, therefore, we deny her motion for need-based attorney fees.  Further, the district court did not find bad faith on the part of appellant.  Absent a finding of bad faith or that the length of the proceeding was unreasonably increased, attorney fees are rarely given.  Therefore, we deny respondent's motion for conduct-based attorney fees.

Affirmed; motion denied. 

[1] In a motion dated February 2007, respondent moved this court to strike appellant's reply brief, appendix, and supplementary record, and for an award of attorney fees incurred on appeal.  In an order dated March 8, 2007, this court denied respondent's motion to strike, and deferred the motion for attorney fees to this panel. 

[2] The 2004 version of Minn. Stat. § 518.64 governed modification of both child support and spousal maintenance.  In the 2006 revision of the child-support statutes that became effective January 1, 2007, Minn. Stat. § 518.64, subd. 2 (2004) was amended and renumbered as Minn. Stat. § 518 A. 39 (2006).  Because this maintenance appeal does not involve child support, we cite the unamended 2004 version of the statute.