Gean F. Rehm, petitioner, Respondent, vs. Eric S. Rehm, Appellant.

Gean F. Rehm, petitioner, Respondent, vs. Eric S. Rehm, Appellant. A04-2507, Court of Appeals Unpublished, August 23, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2507

 

Gean F. Rehm, petitioner,
Respondent,
 
vs.
 
Eric S. Rehm,
Appellant.

 

Filed August 23, 2005

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. DC224641

 

Kathryn A. Graves, Katz, Manka, Teplinsky, Due & Sobol, Ltd., 225 South Sixth Street, Suite 4150, Minneapolis, MN  55402 (for respondent)

 

Gary A. Weissman, Gary A. Weissman Law Office, 701 Fourth Avenue South, Suite 300, Minneapolis, MN  55415 (for appellant)

 

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

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

            The district court granted respondent Gean F. Rehm's motion for an increase in maintenance.  Appellant Eric S. Rehm challenges the amount of the increase arguing that several of the district court's findings are not supported by the record and that the district court misapplied the statutory factors on maintenance to determine the amount of the increase.  We affirm.

FACTS

 

            The parties' 27-year marriage was dissolved by a 1996 judgment based on a stipulation.  Respondent's entitlement to maintenance was reserved, and the district court retained jurisdiction over the issue. 

            In 1999, following the emancipation of the parties' minor child, respondent moved for permanent spousal maintenance in the amount of $1,264 per month, based on a proposed budget of $2,528.87 per month.  The district court found that respondent's net monthly income from two jobs was $1,706, and her reasonable monthly expenses were $1,974, and awarded permanent spousal maintenance in the amount of $300 per month.  The district court's findings on respondent's reasonable expenses took into consideration the fact that she did not have a mortgage or rent payment at that time.

            The dissolution judgment required respondent to sell her home when she reached the age of 55.  In 2003, after the sale of her home, respondent moved for an increase in maintenance to $2,000 per month.  A referee found that respondent's income from three sources, including a business operated out of her home and her estimated net monthly income, excluding the $300 maintenance payment, was $1,472.58.  The referee found that respondent's reasonable monthly living expenses were $2,767.00, "exclusive of taxes on spousal maintenance, taking into account the parties' middle-class standard of living during their marriage."

            The referee found that appellant is a self-employed attorney whose average net monthly income was $5,127.  Appellant did not provide the district court with information concerning his monthly expenses, claiming that such information is irrelevant. 

            The referee specifically rejected appellant's claim that respondent's budget was inflated, noting that the primary change is the addition of a rental expense for a two-bedroom apartment of $1,025 per month and additional retirement savings of approximately $83 per month, which the referee found appropriate.  The referee also rejected as "unrealistic" appellant's claim that respondent could find appropriate housing for $350 per month if she invested all of her income from the sale of her home into another house and obtained a $58,000 mortgage.  The referee increased maintenance to $1,700 per month.  Appellant filed a notice of review of the referee's order.  The district court affirmed the referee's order, and this appeal followed, challenging only the amount of the increase.[1]

D E C I S I O N

            The district court has broad discretion in determining whether to modify a spousal maintenance award.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  A district court abuses its discretion regarding maintenance 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) (citing Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988)).  A reviewing court will find an abuse of discretion only if the district court resolves the matter in a manner "that is against logic and the facts on the record."  Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. App. 2004).

            A maintenance order may be modified upon a showing of substantially increased or decreased earnings of a party or substantially increased or decreased need of a party, any of which makes the terms unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2004).  A party seeking modification of maintenance has the burden of showing that both a substantial change in circumstances has occurred and that the change makes the previous maintenance award unreasonable and unfair.  Hecker v. Hecker,568 N.W.2d 705, 709 (Minn. 1997).

            Appellant argues that several of the district court's findings are unsupported by the record, the law was improperly applied, and the district court gave no explanation for affirming the referee's order.  Notwithstanding Minn. R. Civ. P. 53.05(2), which requires that the district court accept a referee's findings "unless clearly erroneous," rulings by family court referees are entitled to an independent review by the family court judge.  Thompson v. Thompson, 385 N.W.2d 55, 57 (Minn. App. 1986).  In its order affirming the referee's decision, the district court stated that it made a thorough review "and finds that there is no evidence to support amendment of that decision and order." 

            Appellant first challenges the finding that respondent's reasonable rental expense was the $1,025 she was paying to rent a two-bedroom apartment, arguing that respondent estimated that the monthly mortgage payment on a $200,000 house with a $70,000 down payment would only be $822 per month.  But appellant's argument is without merit because $822 includes only principal and interest.  Respondent also estimated that real-estate taxes and insurance would range from $250 to $300 per month, bringing the expense for such a house to $1,072 - $1,122 per month, which is more than she is paying to rent the apartment.  The finding of respondent's reasonable monthly housing expense based on what she is actually paying for rent is not clearly erroneous.

            Appellant next argues that respondent received $142,000 from sale of her previous house, so her reasonable monthly expenses should have been calculated using a higher down payment than the $70,000 respondent used in calculating her reasonable expenses.  The record reflects that about $14,500 of respondent's proceeds from the house was used to pay back taxes and interest, and that her net from the sale was approximately $122,484.  Respondent used some of this to pay credit-card debt and attorney fees, leaving $100,000.  Appellant has cited no authority for the proposition that respondent is required to invest these funds in a house merely to reduce his maintenance obligation.  Nothing in the record makes $70,000 as a proposed down payment clearly erroneous.

            Appellant next argues that the calculation of respondent's net monthly income at $1,472.58 was erroneous because in an interrogatory answer respondent states that her net income for 2003, excluding spousal maintenance, was $19,687 ($1,640.58 net per month).  Respondent asserts that despite stating this amount as net income, the figure did not include taxes payable on her self-employment income of $5,500, or medical insurance.  A deduction for those amounts results in a net monthly income as found by the district court.  On this evidence, we cannot conclude that the finding of respondent's net monthly income was clearly erroneous.

            Appellant next claims error in the finding of his net monthly income.  Despite the fact that he presented evidence that he averaged $5,127 net per month over five years, appellant argues that his accountant said he grossed only $60,000 in 2003 and it is unfair that he will have to pay maintenance based on his past average earnings.  A court may base a support award on earning capacity when "it is impracticable to determine [an] obligor's actual income."  Veit v. Veit, 413 N.W.2d 601, 605 (Minn. App. 1987).  A district court has particularly broad discretion in determining the income of self-employed individuals because "the opportunity for a self-employed person to support himself yet report a negligible net income is too well known to require exposition."  Ferguson v. Ferguson, 357 N.W.2d 104, 108 (Minn. App. 1984).  Based on the evidence appellant himself presented, the finding regarding his net monthly earnings is not clearly erroneous.

            Appellant argues that even if the finding of his net income is not clearly erroneous, it was unfair to increase maintenance from $300 to $1,700 based on an increase in his net income from $3,750 to $5,127.  But the increase in maintenance was based on respondent's increased need and decreased income, not merely on appellant's increased income.  And appellant has not produced any evidence that he is unable to pay the increased maintenance.  "On appeal, a party cannot complain about a district court's failure to rule in [his] favor when one of the reasons it did not do so is because that party failed to provide the district court with the evidence that would allow the district court to fully address the question."  Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (citing Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (stating this proposition in maintenance-modification context)), review denied (Minn. Nov. 25, 2003).

            Appellant argues generally that the district court misapplied the factors set out in Minn. Stat. § 518.552, subd. 2 (2004).  Specifically, he appears to be arguing that the current maintenance award allows respondent to exceed the lifestyle enjoyed by the parties at the time of the dissolution, citing Katter v. Katter, 457 N.W.2d 750, 754 (Minn. App. 1990), for the proposition that the appropriate standard for determining spousal maintenance at modification is the standard of living at the time of dissolution.  Katter involved a situation in which the parties' previously affluent lifestyle during the marriage had been significantly reduced by the time of their dissolution.  Id.  Appellant points to his income at the time of dissolution to argue that "each parent had a $21,750/y life style."  But there is no evidence that this did not afford the parties a middle-class lifestyle at the time of the dissolution or represented a decline in the standard of their lifestyle.  Appellant notes that three years after the dissolution, respondent's reasonable expenses were found to be $1,974 per month, and again questions her claim four years later for a 50% increase, but the evidence supported the finding that the increase was reasonable based on a housing expense that respondent did not have at the time of the first maintenance award. 

            Appellant offers alternative methodologies for calculating respondent's expenses and income.  But an abuse of discretion is not shown simply because the record could support a different result or because this court might have reached a different result on the same record.  Chamberlain v. Chamberlain, 615 N.W.2d 405, 412 (Minn. App. 2000), review denied (Minn. Oct. 25, 2000).  We do not find error in the application of the statutory factors on maintenance to the facts of this case.

            Affirmed.

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

[1] Appellant proposed an increase to $555 per month.