In re Cheryl Ann Sowada, petitioner, Appellant, vs. Mark Joseph Sowada, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1660

 

 

In re Cheryl Ann Sowada, petitioner,

Appellant,

 

vs.

 

Mark Joseph Sowada,

Respondent.

 

 

Filed June 8, 2004

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. MF255486

 

 

Cheryl A. Sowada, 9233 Tewsbury Gate North, Maple Grove, MN  55311 (attorney pro se)

 

Geraldine Carlen Steen, 14550 Excelsior Boulevard, Suite 206, Minnetonka, MN  55345 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge; Stoneburner, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Appellant-wife Cheryl Ann Sowada claims the district court abused its discretion by modifying support and maintenance and asks that the property settlement be reopened to compensate her for the lower level of support and maintenance.  The record provides evidence of a substantial change in circumstances supporting a reduction in support and maintenance.  Wife has not provided a basis for reopening an otherwise final property settlement.  We affirm.

FACTS

            The parties' marriage was dissolved by judgment entered August 19, 2002.  The district court heard respondent-husband Mark Joseph Sowada's motion to modify his support and maintenance obligations in April 2003.  By amended order issued on September 2, 2003, husband's support obligation was reduced from $2,700 to $1,979 per month, and his maintenance obligation was reduced from $1,500 to $600 per month, with maintenance ceasing altogether after February 2004, instead of 2007 as previously ordered.

D E C I S I O N

            1.         The district court has broad discretion in modifying support or maintenance awards.  Putz v. Putz, 645 N.W.2d 343, 347 (Minn. 2002); General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).  An abuse of discretion occurs when the district court resolves the matter in a manner that is against logic and the facts on the record. Putz, 645 N.W.2d at 347.  The district court's findings are reviewed for clear error and in the light most favorable to the findings.  Vangness v. Vangness, 607 N.W.2d 468, 472 (Minn. App. 2000).  The district court's findings are not clearly erroneous if the evidence in the record as a whole supports them.  Bliss v. Bliss, 493 N.W.2d 583, 588 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

            Support and maintenance orders may be modified if a party can demonstrate a substantial increase or decrease in earnings that makes the current support order unreasonable or unfair.  Minn. Stat. § 518.64, subd. 2 (2002).   Motions for modification may be made "from time to time" after entry of a support or maintenance order.  Minn. Stat. § 518.64, subd. 1 (2002).  It is presumed that a child support order is unreasonable or unfair if the modified guideline support obligation would be at least $50 and 20% higher or lower than the current order.  Minn. Stat. § 518.64, subd. 2(b)(1).  When modifying maintenance, the court must consider, in addition to the current circumstances, the factors listed in Minn. Stat. § 518.552 (2002).  Minn. Stat. § 518.64, subd. 2(c).  These factors include the parties' financial resources, need, ability to pay, and the time needed to acquire suitable employment.  Minn. Stat. § 518.552, subd. 2.

            Here, although husband was unemployed during the marital dissolution trial, he was receiving severance pay for a period of one year of $160,000.  His support and maintenance obligations in the dissolution judgment were correctly based on this earnings figure.  At the time of the modification hearing, however, husband's severance pay had ended and he had been unemployed and had received unemployment benefits for six months. Despite this, husband remained current on his support and maintenance obligations until he filed the modification motion.

            The district court found at the time of the dissolution that husband had failed to make a good faith job search.  At the time of the modification hearing, however, husband documented a diligent job search.  Finally, by the time of the modification, husband found a job at a substantially decreased salary of $80,000.  At this salary level, the modified guidelines support obligation would be more than a 20% reduction from the amount set in the former order, or presumably unreasonable.  At the same time, wife was able to convert her part-time position to a full-time position.  When a motion for modification of maintenance is made, the court must consider both parties' abilities to meet their financial needs.  See Minn. Stat. § 518.564 (stating courts must consider factors listed in Minn. Stat. § 518.552).  Based on these findings, the district court had a substantial basis in the record for its modification order.

            2.         Property settlements are final unless a party can justify opening the judgment under the laws of the state including Minn. Stat. § 518.145, subd. 2 (2002).  Minn. Stat. § 518.64, subd. 2(e).  Under section 518.145, this requires a showing of mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or newly discovered evidence.  Minn. Stat. § 518.145, subd. 2.  Wife has not alleged any of these bases for reopening the property division, and we therefore decline to do so.  Should husband fail to pay support or maintenance, a lien may be imposed against his property to secure payment.  Minn. Stat. § 518.64, subd. 2(e).

            Affirmed.

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