Recovery Equipment Sales Corp., et al., Plaintiffs, Thomas M. Brudvig, Appellant, vs. Twin City Wrecker Sales, Inc., et al., Respondents.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-98-40

In Re the Marriage of:
Susan Bickmore Sederstrom, petitioner,
Respondent,

vs.

Paul Mark Sederstrom,
Appellant.

Filed September 15, 1998
Affirmed
Norton, Judge*

Washington County District Court
File No. F3-97-2393

Christine L. Stroemer, Collins, Buckley, Sauntry & Haugh, P.L.L.P., West 1100 First National Bank Building, St. Paul, MN 55101 (for respondent)

John J. Todd, Orme & Asociates, Ltd., 3140 Neil Armstrong Boulevard, Suite 203, Eagan, MN 55121 (for appellant)

Considered and decided by Lansing, Presiding Judge, Norton, Judge, and Schultz, Judge.**

U N P U B L I S H E D   O P I N I O N

NORTON, Judge

Appellant-husband Paul Sederstrom challenges the district court's judgment and decree of dissolution (1) awarding respondent-wife Susan Sederstrom maintenance; (2) denying his request to pay wife the cash value of her share of his retirement account; (3) valuing property; and (4) awarding attorney fees. Wife moves for attorney fees incurred on appeal and to strike part of husband's brief. Because the challenged rulings are not an abuse of the district court's discretion, we affirm. We grant respondent's motion to strike but deny her motion for fees.

FACTS

The parties married in 1971 and separated in 1996. In August 1997, the parties stipulated to having their case heard by a magistrate. The magistrate and district court (a) valued husband's retirement account as of June 30, 1997; (b) awarded wife a share of husband's retirement account via a qualified domestic relations order (QDRO); (c) awarded wife $800 permanent monthly maintenance; and (d) awarded wife attorney fees.

D E C I S I O N

1. Absent an abuse of the district court's "wide discretion" in awarding maintenance, "the trial court's determination is final." Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). An abuse of discretion occurs if the district court makes "a clearly erroneous conclusion that is against logic and the facts on record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). While Minn. Stat. § 518.552 (1996) lists factors to be considered in setting the amount and duration of maintenance, no single factor is dispositive and the issue is basically the recipient's need balanced against the obligor's financial condition. Erlandson, 318 N.W.2d at 39-40. Maintenance-related findings of fact are not set aside unless clearly erroneous. McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App. 1989).

If uncertainty exists about the need for permanent maintenance, the district court "shall" award permanent maintenance and leave the award open for future modification. Minn. Stat. § 518.552, subd. 3 (1996); see Minn. Stat. § 645.44, subd. 16 (1996) ("'[s]hall' is mandatory")1. Here, after addressing the statutory maintenance factors, the district court found it was uncertain whether wife could support herself and awarded her permanent maintenance. Husband claims that, in awarding maintenance, the district court ignored Minn. Stat. § 518.552, subd. 2(a), (b), (d), (e), (g) & (h). Review of the district court's three pages of commendably detailed findings on the maintenance issue shows that the district court gave adequate consideration to the statutory maintenance factors. See Justis v. Justis, 384 N.W.2d 885, 891 (Minn. App. 1986) (explicit findings on all maintenance factors not required), review denied (Minn. May 29, 1986); see also Engquist v. Wirtjes, 243 Minn. 502, 503, 68 N.W.2d 412, 414 (1955) (function of appellate court is review and detailed statement of record's contents not required). Also, to the extent husband claims the maintenance award should be limited to the time before wife becomes a tenured teacher or that her job skills indicate temporary maintenance is proper, his argument is misdirected and his reliance on the authorities cited is misplaced. The relevant question is not whether wife will have a permanent job, but whether, with that job, there is uncertainty about her ability to support herself. Minn. Stat. § 518.552, subd. 3. Here, in a finding not clearly erroneous on this record, the district court concluded such uncertainty exists. Therefore, the district court did not abuse its discretion in awarding wife permanent maintenance, subject to future modification.

We reject husband's challenge based on what he claims is a lack of evidence that wife's standard of living will decrease without maintenance. The potential decrease in wife's standard of living is self evident; wife's monthly expenses significantly exceed her net monthly income.2

2. Absent an abuse of the district court's wide discretion, its property division will not be altered on appeal. Rutten, 347 N.W.2d at 50. Husband argues that the district court abused its discretion when it ordered that wife's portion of husband's retirement account be distributed through a QDRO, rather than allowing husband to pay wife cash for her interest.

Husband does not dispute the findings that wife accrued "minimal retirement benefits" and has half of his ability to accumulate retirement benefits. The record shows the district court adopted wife's rationale that a QDRO would allow her to avoid tax consequences while, without a QDRO, she would be financially prejudiced. The court reasoned that a QDRO was better suited to provide a more equitable distribution for the parties' retirements under the circumstances. Such considerations are proper and we see no abuse of the district court's discretion. See Taylor v. Taylor, 329 N.W.2d 795, 798-99 (Minn. 1983) (division of pension at dissolution is preferred if it can be done without causing undue hardship to either party).

3. Noting the change in the value of his retirement account, husband argues the district court valued the account as of the wrong date. Assets are to be valued as of the initially scheduled prehearing conference unless the parties agree otherwise or the court determines another date is equitable. Minn. Stat. § 518.58, subd. 1 (1996). While there was no pretrial hearing scheduled, the district court found that valuing the retirement account as of January 1996, as suggested by husband, would be unfair to wife, because the parties shared funds for most of 1996. The district court adopted the special magistrate's proposed ruling that the prehearing settlement conference would have been set after July 1997, but at the time of trial, the magistrate had valuations of husband's retirement account only as of June 30, 1997. We cannot say the district court erred in valuing the account as of the only available valuation date. Also, we reject any argument that the district court should have considered valuation information husband submitted in his posttrial motion. See Rathbun v. W.T. Grant Co., 300 Minn. 223, 238, 219 N.W.2d 641, 651 (1974) (when considering motion for amended findings, district court "may neither go outside the record nor consider new evidence").

Finally, we do not address husband's argument that the district court underestimated the amount wife could earn from IRA accounts; this issue was not brought before the trial court. See Thiele v. Stich, 425 N.W.2d 580, 582-583 (Minn. 1988) (appellate courts address only issues presented to and decided by trial court).

4. We will not alter a district court's award of attorney fees under Minn. Stat. § 518.14, subd. 1 (1996) absent an abuse of the district court's discretion. Jensen v. Jensen, 409 N.W.2d 60, 63 (Minn. App. 1987). Husband argues that because he must pay maintenance and a property award, he lacks the ability to pay attorney fees and that because of wife's property award and her earnings, she is able to pay her own attorney fees. See Minn. Stat. § 518.14, subd. 1 (need-based attorney fees "shall" be awarded if recipient needs them for a good-faith assertion of rights and obligor can pay them while recipient cannot). The district court made its fee award in light of wife's property and maintenance awards and we detect no abuse of discretion.

5. Wife asks this court to strike certain pages from the appendix to husband's brief as outside the record. See Minn. R. Civ. App. P. 110.01 (defining record on appeal as documents filed in district court); Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) ("any matters not part of the record must be stricken"). Because husband admits he included documents in his appendix that were not part of the record, we strike those pages.

6. We see no bad faith regarding the documents and deny wife's request for attorney fees on appeal. See Roehrdanz v. Roehrdanz, 438 N.W.2d 687, 691-92 (Minn. App. 1989) (awarding attorney fees on appeal is discretionary with the court), review denied (Minn. June 21, 1989).

Affirmed.

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

** Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.

1. The clear and mandatory nature of the statute's language addresses husband's argument that, based on its legislative history, permanent and temporary maintenance are "equal options." See Meyer v. Best Western Seville Plaza Hotel, 562 N.W.2d 690, 693 (Minn. App. 1997) (court could not use legislative history to construe statute "because [the statute was] not ambiguous"), review denied (Minn. June 26, 1997).

2. Husband also argues that, under Hecker v. Hecker, 568 N.W.2d 705 (Minn. 1997), the district court should have imputed to wife the amount she could have earned on investments if husband paid her cash for her interest in his retirement account had she invested those funds. Because we affirm the district court's refusal to order a cash payment (see Issue 2), we need not address this argument. We note, however, that Hecker is distinguishable.