In re Fred J. Zamberletti, petitioner, Appellant, vs. Valerie M. Zamberletti, 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This opinion will be unpublished and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

A04-562

 

 

In re Fred J. Zamberletti, petitioner,

Appellant,

 

vs.

 

Valerie M. Zamberletti,

Respondent.

 

 

Filed December 14, 2004

Affirmed

Parker, Judge*

 

 

Ramsey County District Court

File No. F6-85-18484

 

 

Brian L. Sobol, Susan A. Daudelin, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN  55402 (for appellant)

 

Richard D. Goff, Richard D. Goff & Associates, 3908 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (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

PARKER, Judge

            Appellant Fred Zamberletti appeals from the district court's decision that maintained his spousal maintenance payments at $3,548 per month, ordered that he transfer $400,000 into a trust account to secure his maintenance payments, and awarded $12,917.25 in attorney fees to respondent Valerie Zamberletti.  As part of the 1989 dissolution decree, the district court required appellant to maintain life insurance in respondent's name to secure his maintenance obligation.  In a later order, the district court set the life insurance policy amount at $400,000.

            In August 2003, appellant moved to terminate or reduce his maintenance obligation, as well as to eliminate the requirement that he maintain a life insurance policy as security for respondent's maintenance.  In February 2004, the district court denied appellant's motion and found appellant in conditional contempt of court for not maintaining life insurance in the amount of $400,000 and required him to deposit $400,000 in an interest-bearing trust account, naming respondent as the irrevocable beneficiary.  In a subsequent order, the district court awarded respondent $12,917.25 in attorney fees.  This court dismissed the appeal of the order finding appellant in constructive contempt of court because it was not a final appealable order, but extended review to the issues of spousal maintenance, the $400,000 life insurance policy, and attorney fees.  We affirm.

D E C I S I O N

            1.         Appellant's Spousal Maintenance Obligation

            This court grants broad discretion to the district court on whether to modify a spousal maintenance award.  Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. App. 2004).  "A district court abuses its discretion when its decision is against logic and the facts on record."  Id. (quotation omitted).  The party seeking modification must show a substantial change in circumstances, such as a considerable increase or decrease in the earnings or needs of a party.  Minn. Stat. § 518.64, subd. 2(a)(1)-(2) (2002).  Also, the moving party must show that the substantial change in circumstances makes the current maintenance obligation unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).    "Unreasonable and unfair are strong terms which place upon the claimant a burden of proof more than cursory."  Kielley, 674 N.W.2d at 779 (quotation omitted).  This burden of proof may be discharged "only upon clear proof of facts showing a substantial change of circumstances from those existing at the time of the dissolution[.]"  Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn. 1980).

            Appellant was the head trainer for the Minnesota Vikings from 1961 to 1998, and at the time of the marriage dissolution he earned $48,000 per year plus perquisites such as meals, transportation, and tickets to the team's games.  He also owned a physical therapy business, CenterTherapy, Inc., which earned appellant $50,000 per year at the time of the dissolution.  In 1994, appellant sold CenterTherapy for approximately $500,000.  In 1998, he retired from the Vikings but stayed with the team as a consultant, and in 2002, the Vikings reduced his salary to $25,000 per year.

Appellant seeks to modify his maintenance obligation because he currently receives only $45,000 in income per year$25,000 from the Vikings and $20,000 from social security.  Further, he alleges that his living expenses have increased 150 percent since 1989, and that respondent has ample funds, including rental income, a pension, and social security benefits, to pay for her maintenance.

            At the time of the original dissolution, appellant had a National Football League pension worth $95,191.  The district court found the value of the NFL pension increased since the time of the property division and was rolled over into an IRA to support appellant's retirement.  The district court also found that appellant's net worth increased from $800,000 to approximately $3 million.  The district court could not determine what appellant's monthly expenses were because he failed to submit a budget.  Finally, the district court found that respondent depends on appellant's spousal maintenance because she is 65 years old and in poor health. 

            Appellant argues that the district court impermissibly took into account his retirement assets from the parties' property division when determining his income for spousal maintenance purposes.  See Kruschel v. Kruschel, 419 N.W.2d 119, 122 (Minn. App. 1988) (holding that pension should be viewed as property or income, but not both).  But the district court held that appellant did not adequately trace his NFL pension from 1989 to the current proceeding, so it was impossible for the court to determine exactly how much of his pension was attributable to the property division.  Because appellant did not adequately trace his property, this situation is much like the one this court considered in Tuthill v. Tuthill:

We acknowledge that the finding does not include a detailed analysis of appellant's financial condition.  However, he has failed to present a complete picture of his assets and debts making such findings impossible.  As we have previously stated, this court will not speculate, and the appellant cannot complain where inadequate documentation leads at least in part to the trial court's refusal to modify a decree.     

 

399 N.W.2d 230, 232 (Minn. App. 1987).

            On this record, the district court did not abuse discretion by deciding that appellant failed to meet his burden to show a substantial change in circumstances necessitating a modification of his spousal maintenance obligation.  Minn. Stat. § 518.64, subd. 2.  Because appellant did not meet his statutory burden to show modification was appropriate, it is unnecessary for us to consider other statutory factorsmost notably Minn. Stat. § 518.552, subd. 2 (2002)in determining the proper amount of spousal maintenance.  See Tuthill, 390 N.W.2d at 232 (stating that a failure to show modification of maintenance under Minn. Stat. § 518.64, subd. 2, makes it superfluous to remand the matter for findings on other statutory factors).

            2.         Appellant's $400,000 Interest-Bearing Trust Obligation

            Subsequent to the original dissolution, the district court ordered appellant to maintain a $400,000 life insurance policy for the benefit of respondent as security for the maintenance payments.  Appellant instead attempted to comply with the order by establishing a life insurance trust for respondent, but the district court denied his requests.  In 1999, after meeting with his financial planner, appellant unilaterally established a life insurance trust for respondent.  In an affidavit, appellant stated that he forgot about the previous court orders barring him from this action.  The district court in the current proceeding held appellant in conditional contempt of court and ordered that he establish a $400,000 interest-bearing trust for the benefit of respondent as security for his maintenance payments.  Appellant challenges this order as an impermissible modification of the parties' property division.  See Minn. Stat. § 518.64, subd. 2(e) ("[A]ll divisions of real and personal property . . . shall be final . . . ."); Ulrich v. Ulrich, 400 N.W.2d 213, 218 (Minn. App. 1987) ("[P]roperty divisions are final and not subject to modification except where they are the result of mistake or fraud.").

            The district court's order to create a $400,000 interest-bearing trust can be grounded on two statutory provisions.  First, Minn. Stat. § 518.24 (2002) provides that security, such as a life insurance policy, may be required to protect spousal maintenance payments.  If security is not given, "the court may sequester the obligor's personal estate" and apply it pursuant to the terms of the court's order.  Id.  Failure to comply with the order is "prima facie evidence of contempt."  Id.  In this case, once appellant failed to provide the security in the required form of a life insurance policyby unilaterally creating a life insurance trustthe court was authorized by statute to sequester his assets and apply the money to the court's order to create an interest-bearing trust for the benefit of respondent.  Second, courts are authorized to "impose a lien or charge on the divided property at any time while the property, or subsequently acquired property, is owned by the parties or either of them, for the payment of maintenance or support money, or may sequester the property as is provided by section 518.24."  Minn. Stat. § 518.64, subd. 2(e) (emphasis added).  This provision creates a specific exception to the general prohibition on modifying property divisions in section 518.64, subdivision 2(e).  Id.

            There is some merit to appellant's contention that requiring him to "pre-pay" respondent's maintenance via the $400,000 trust account may be unduly burdensome.  But the district court thrice denied appellant's motions to convert the maintenance security into a life insurance trust.  Appellant unilaterally defied the court's orders and established the trust.  Therefore, appellant's low level of credibility bears on the degree of discretion afforded to the district court.  We conclude that the district court's order is not an abuse of discretion.

            3.         Respondent's Attorney Fees

            Finally, appellant challenges the district court's award of $12,917.25 in attorney fees to respondent.  An award of attorney fees under Minn. Stat. § 518.14, subd. 1 (2002), "rests almost entirely within the discretion of the trial court and will not be disturbed absent a clear abuse of discretion."  Crosby v. Crosby, 587 N.W.2d 292, 298 (Minn. App. 1998) (quotation omitted), review denied (Minn. Feb. 18, 1999).  A lack of specific findings on the statutory factors will not doom the award as long as the court was "familiar with the history of the case and ha[d] access to the parties' financial information[.]"  Gully v. Gully, 599 N.W.2d 814, 826 (Minn. 1999).

            Appellant claims it is not clear if the district court awarded need-based or conduct-based attorney fees, or both.  For need-based fees, a moving party must show (1) the fees were necessary for a good-faith presentation of the party's rights in the proceeding; (2) the party from whom fees are sought has the means to pay them; and (3) the party to whom fees are awarded does not have the means to pay them.  Minn. Stat. § 518.14, subd. 1(1)-(3).  Here, the district court found that (1) respondent had no choice but to hire counsel to contest appellant's motions; (2) appellant had sufficient income to pay respondent's fees; and (3) respondent did not have the financial ability to pay her fees.  Appellant charges that respondent did have the ability to pay for her fees, but there is evidence in the record that she had to withdraw money from her retirement accounts to supplement her spousal maintenance.  Under our deferential standard of review, it was not an abuse of discretion for the district court to award respondent need-based attorney fees.

            Minn. Stat. § 518.14, subd. 1, allows a court to award additional, conduct-based fees "against a party who unreasonably contributes to the length or expense of the proceeding."  This court has held that "a proceeding" must exist for a party to increase its expense unreasonably.  Geske v. Marcolina, 624 N.W.2d 813, 819 (Minn. App. 2001).  Here, appellant repeatedly challenged the district court's orders requiring him to establish a life insurance policy.  This conduct, while not literally occurring during "a proceeding," fostered further litigation between the parties.  Although it is a better practice for the district court to allocate the various categories of attorney fees, the fee award in this case was not an abuse of discretion.

            We affirm the district court's holdings regarding spousal maintenance, the requirement of a $400,000 irrevocable trust account necessary to secure maintenance, and the award of attorney fees. 

            Affirmed.

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