In Re the Marriage of: Garry A. Pistoria, petitioner, Appellant, vs. Gail Diane Pistoria, Respondent.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1541

In Re the Marriage of:

Garry A. Pistoria, petitioner,

Appellant,

vs.

Gail Diane Pistoria,

Respondent.

Filed April 21, 1998

Affirmed; motion granted

Willis, Judge

Ramsey County District Court

File No. F08825378

Kathleen M. Picotte Newman, Larkin, Hoffman, Daly & Lindgren, Ltd., 1500 Norwest Financial Center, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant)

William F. Forsyth, Kristi L. Skordahl, Henson & Efron, P.A., 1200 Title Insurance Building, 400 Second Avenue South, Minneapolis, MN 55401 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

Appellant Garry A. Pistoria challenges the district court's order denying a reduction in his spousal maintenance obligation and argues that the district court erred in not allowing posthearing submissions. Respondent Gail Diane Pistoria challenges the district court's order awarding her $750 in attorney fees and moves this court for attorney fees on appeal. We affirm and grant respondent's motion for attorney fees.

FACTS

In June 1989, a district court judgment and decree dissolved the 28-year marriage of appellant Garry Pistoria and respondent Gail Pistoria. Respondent was awarded $3,100 per month in spousal maintenance, to be reduced to $3,000 monthly in October 1991. The maintenance award was then subject to cost of living adjustments, and as of May 1997, respondent was receiving $3,869.90 monthly.

In the section of the judgment and decree captioned "Personal Property," appellant and respondent both received portions of appellant's Harvest States Cooperatives Cash Balance Retirement Plan ("the retirement plan"). Respondent received "50% of the lump sum value of [appellant's] accrued benefit as of February 28, 1989 under the Harvest States Cooperatives Cash Balance Retirement Plan * * * ." The value of respondent's portion of the retirement plan as of February 28, 1989, was $157,217.

On January 1, 1997, respondent became eligible by the terms of the retirement plan to begin receiving monthly payments from the plan, starting at $2,230.73 and increasing incrementally to $3,186.75 per month as of the first month after appellant's retirement, which is anticipated to be in December 1998. Respondent elected not to begin receiving monthly payments and is investigating receiving a lump sum payment from the retirement plan.

In March 1997, appellant moved to terminate his obligation to pay spousal maintenance or, alternatively, to reduce the obligation by $3,145.65 monthly.[1] Respondent moved for attorney fees and costs but provided no documentation of the amount of fees and costs she incurred. At the hearing on the motions and in her affidavit, respondent requested the court to allow her to submit a posthearing affidavit reflecting her attorney fees and costs.

The district court issued an order on July 17, 1997, finding that "[t]he retirement plan was an asset of the parties and designated property by the Decree. All divisions of real and personal property are final." The court further concluded that there was no change in circumstances justifying a reduction in appellant's spousal maintenance obligation and denied appellant's motion. The court awarded respondent $750 in attorney fees. This appeal followed, and respondent filed a notice of review of the attorney fee award.

D E C I S I O N

1. Maintenance Modification

Appellant argues that the district court erred in finding that there had been no substantial change in circumstances justifying a reduction in his spousal maintenance obligation. Spousal maintenance determinations are a matter within the district court's discretion that this court will not disturb absent an abuse of that discretion. Maeder v. Maeder, 480 N.W.2d 677, 679 (Minn. App. 1992), review denied (Minn. March 19, 1992). A party seeking to modify a maintenance award must show both a substantial change in circumstances and that the changed circumstances render the existing maintenance award unreasonable and unfair. Minn. Stat. § 518.64, subd. 2(a) (1996); Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). Changed circumstances that are a result of the division of property in a judgment and decree are "not the type of changes contemplated by Minn. Stat. § 518.64, subd. 2." Abuzzahab v. Abuzzahab, 359 N.W.2d 329, 332 (Minn. App. 1984).

In a dissolution proceeding, the court may order payments from a party's pension (1) as part of a property division; or (2) as an award of maintenance, either as a fixed dollar amount or as a percentage of the pension payment. Minn. Stat. §§ 518.58, subd. 4; 518.581, subd. 1 (1996). A court may not consider the receipt of pension benefits as income in a subsequent motion to modify maintenance where the dissolution judgment and decree awarded the benefits to a party as property. See Kruschel v. Kruschel, 419 N.W.2d 119, 122-23 (Minn. App. 1988) (holding that court may not order payment of maintenance out of pension payment until obligor received from pension amount equivalent to its value as determined in original property distribution). "To do so would be to allow the subsequent redistribution of the pension as income after it had been awarded as property." Neubauer v. Neubauer, 433 N.W.2d 456, 461 (Minn. App. 1988), review denied (Minn. Mar. 17, 1989). Courts do not require parties to a dissolution proceeding to invade the principal of their property awards to satisfy their monthly financial needs. Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985). To the extent that a judgment and decree did not award the pension as property, the court may consider it income and use it as a factor in making a maintenance obligation determination. See id.

Appellant contends that the monthly payments respondent could now receive from the retirement plan are income for the purpose of considering respondent's need for spousal maintenance. Determination of whether payments from the retirement plan are property or income requires examination of the judgment and decree. The general rules for the construction of contracts govern the interpretation of a judgment and decree. See Starr v. Starr, 312 Minn. 561, 562-63, 251 N.W.2d 341, 342 (1977). Whether a contract is ambiguous is a question of law. Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 643 (Minn. App. 1985), review denied (Minn. June 24, 1985). The interpretation of a contract is a question of law if no ambiguity exists. Id.

The judgment and decree here designates the parties' interests in appellant's retirement plan as personal property. It is undisputed that the value of respondent's portion of the retirement plan as of February 28, 1989, was $157,217. We conclude that although respondent ultimately may receive more than that amount from the retirement plan, the judgment and decree unambiguously designates $157,217 as an award of property to respondent, and she is not required to invade the principal of that award to satisfy her monthly financial needs. Furthermore, because respondent has not yet received any of the $157,217, whether any payments she may receive in excess of that amount should be treated as income to her for the purpose of establishing a change in circumstances affecting spousal maintenance is an issue not properly before the court. See State ex rel. Bennett v. Brown, 216 Minn. 135, 138, 12 N.W.2d 180, 181 (1943) (holding that "on appeal there must be a substantial and real controversy between the parties before a case will be considered by this court"). Because the only change in respondent's circumstances is that she now has the right to begin collecting her portion of the retirement plan, we conclude that the district court did not abuse its discretion in finding no substantial change in circumstances to warrant modification of appellant's spousal maintenance obligation. Our decision does not preclude a future motion by appellant for modification, asking for a determination of the nature of retirement plan payments to respondent after she has received $157,217 from the retirement plan.

2. Posthearing Submissions

Appellant argues that the district court erred in denying his request for posthearing submissions on the issue of whether respondent can receive her interest in appellant's retirement plan in a lump sum payment or must receive monthly payments. Appellant claims that his counsel made such a request at the hearing on April 18, 1997, but the record shows no specific request or denial of a request. This issue is, therefore, not properly before us. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that appellate courts refuse to address issues and theories not raised to or decided by district court).

3. Attorney Fees

Respondent contends that the district court erred in failing to allow her to submit posthearing documentation of attorney fees and costs and in awarding her only $750 in attorney fees. An award of attorney fees is within the discretion of the district court; we will not reverse absent an abuse of discretion. Bliss v. Bliss, 493 N.W.2d 583, 589 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

Respondent moved for attorney fees and costs pursuant to Minn. Stat. § 518.14, subd. 1 (1996), which authorizes a grant of fees where they are necessary for the good-faith assertion of a party's rights and where the party lacks the means to pay fees, while the other party has sufficient means. But if a party requesting attorney fees and costs fails to provide adequate documentation to support the request, the party may not argue on appeal that the district court made an insufficient fee award. See Case v. Case, 516 N.W.2d 570, 574 (Minn. App. 1994) (holding that appellant "may not now complain that the district court denied her motion [for attorney fees] when she failed to provide adequate documentation to support the relief requested"). Respondent did not document the fees she had incurred or provide a reasonable projection of fees either before or at the hearing on her motion. The district court did not abuse its discretion in failing to allow respondent to make posthearing submission on fees or in awarding her $750 in attorney fees.

4. Motion for Attorney Fees on Appeal

Respondent seeks attorney fees on appeal pursuant to Minn. Stat. § 549.211 (Supp. 1997) on the grounds that appellant's claims are frivolous or in bad faith and pursuant to Minn. Stat. § 518.14 on the ground that she does not have the ability to pay fees and appellant does. This court may award attorney fees on appeal. Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691 (Minn. App. 1989), review denied (Minn. June 21, 1989). The record does not show that appellant has acted frivolously or in bad faith; therefore, we deny respondent's request for conduct-based attorney fees.

Appellant relies on J.A.S. v. R.J.S., 524 N.W.2d 24 (Minn. App. 1994), to argue that this court should deny respondent's need-based fee request because she has not provided this court with current information on her income and expenses. But unlike J.A.S., the district court's findings here were based on current income information. See id. at 27 (stating that district court's findings were improperly based on information that was three years old). The district court found that (1) respondent's attorney fees were necessary for the good-faith assertion of her rights, (2) appellant has the ability to pay, and (3) respondent does not have the means to do so. Respondent has therefore demonstrated a need for attorney fees. See Johnson v. Johnson, 533 N.W.2d 859, 867 (Minn. App. 1995) (requiring a party to demonstrate the need for attorney fees on appeal). Respondent is entitled to attorney fees on appeal, and we award her $750.

Affirmed; motion granted.

[ ]1 Appellant mistakenly believed that respondent was eligible to receive $3,145 monthly from the retirement plan at the time he filed his motion.