In re the Marriage of: Larry John Eagen, petitioner, Appellant, vs. Phyllis Leone Eagen, Respondent.

In re the Marriage of: Larry John Eagen, petitioner, Appellant, vs. Phyllis Leone Eagen, Respondent. A05-270, Court of Appeals Unpublished, December 6, 2005.

This opinion will be unpublished and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

A05-270

 

In re the Marriage of:

 

Larry John Eagen, petitioner,

Appellant,

 

vs.

 

Phyllis Leone Eagen,

Respondent.

 

Filed December 6, 2005

Affirmed; motion granted

Kalitowski, Judge

 

Hennepin County District Court

File No. DW 281297

 

Geraldine Carlen Steen, Beckman & Steen, 14550 Excelsior Boulevard, Suite 206, Minnetonka, MN 55345 (for appellant)

 

Joani C. Moberg, Larkin Hoffman Daly & Lindgren, Ltd., 1500 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431-1194 (for respondent)

 

            Considered and decided by Minge, Presiding Judge; Kalitowski, Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Larry John Eagen challenges the district court order, arguing that the district court:  (1) abused its discretion by denying appellant's request to modify his maintenance obligation; (2) erred by relying on respondent's proposed order; and (3) erred by failing to issue an order within 90 days of the hearing.  Respondent made a motion to strike parts of appellant's brief and appendix.  We affirm and grant respondent's motion to strike.

D E C I S I O N

 

I.

 

            Appellant argues that the district court was required to modify his maintenance obligation because he presented evidence to the court indicating that he had lost his job.  A district court has broad discretion in determining whether to modify a spousal maintenance award and abuses its discretion only if the record does not support the findings of fact or if the court 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)).  This court must uphold findings of fact concerning spousal maintenance unless they are clearly erroneous.  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992); see also Minn. R. Civ. P. 52.01.

            The party moving to modify the maintenance obligation bears the burden of showing a substantial change of circumstances since the last time the court modified the award, and that the changed circumstances render the original award unreasonable and unfair.  Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn. 1987); Youker v. Youker, 661 N.W.2d 266, 269 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  Changed circumstances include but are not limited to "substantially increased or decreased earnings [or need] of a party," and "a change in the cost of living for either party . . . , any of which makes the terms unreasonable and unfair."  Minn. Stat. § 518.64, subd. 2(a) (2004).  "The terms ‘unreasonable and unfair' . . . are strong terms which place upon the claimant a burden of proof more than cursory."  Giencke v. Haglund, 364 N.W.2d 433, 436 (Minn. App. 1985).  Here, the district court concluded that appellant's motion was premature because he failed to show a reduction in his standard of living after his loss of employment. 

            Although job loss is a substantial change in circumstances, that change, by itself, does not necessarily make the original maintenance order unreasonable and unfair.  See Kielley v. Kielley, 674 N.W.2d 770, 779-80 (Minn. App. 2004); Meyers v. Meyers, 409 N.W.2d 532, 534-35 (Minn. App. 1987).  And this court will uphold a refusal to modify a spousal maintenance award where, despite a loss of employment, there was no decline in lifestyle.  Savoren v. Savoren, 386 N.W.2d 288, 292 (Minn. App. 1986).

            Here, appellant filed his motion to modify his maintenance obligation only 11 days after he lost his job.  And the record indicates that appellant had a long history of substantial earnings including an annual salary of approximately $120,000 at the time of the entry of the dissolution decree.

Appellant was unemployed for less than two months when the court heard his modification motion.  The district court found that following his termination, appellant continued making substantial discretionary expenditures, including the purchase of a 2004 Honda Accord and exercise equipment.  The court also found that appellant would receive another severance payment the month of the hearing, and that he was actively interviewing for employment.  On this record, we cannot conclude that the district court abused its discretion by ruling that appellant's motion to modify spousal maintenance was premature.

II.

 

            Appellant contends that the district court erred by adopting virtually all of respondent's proposed findings and conclusions of law.  A district court's verbatim adoption of proposed findings and conclusions of law is not reversible error per se.  Schallinger v. Schallinger, 699 N.W.2d 15, 23 (Minn. App. 2005), review denied (Minn.  Sept. 28, 2005).  While adoption of a party's proposed findings is generally accepted, wholesale adoption of one party's findings and conclusions raises the question of whether the district court independently evaluated the evidence.  Id.  "A reviewing court examines the findings to determine whether they are clearly erroneous."  Id. 

            Here, the record supports the district court's findings.  Although appellant lost his job, he did not demonstrate a substantial change of his lifestyle to warrant modification of his spousal maintenance obligation.  Moreover, the district court made a number of minor changes to the proposed order, indicating that the court independently evaluated the evidence.  We conclude that the district court's reliance on respondent's proposed order was not reversible error.

III.

 

            Appellant argues that this court should reverse the district court order because the court did not issue its order within 90 days of the hearing.  Minnesota law provides that

all motions and matters submitted to a judge for a decision in trial and appellate matters, shallbe disposed of and the decision filed with the court administrator within 90 days after such submission, unless sickness or casualty shall prevent, or the time be extended by written consent of the parties.

 

Minn. Stat. § 546.27, subd. 1 (2004).  But the statute does not provide that a late filing affects the order's validity.  See Wenger v. Wenger, 200 Minn. 436, 440, 274 N.W. 517, 519 (1937) (interpreting an earlier version of the statute and ruling that the statute "is . . . directory as to the time within which the judge shall file his decision, and a failure to act within the time specified does not deprive the court of the power to act afterward and render a valid decision").  Thus, we conclude that the district court's delay in issuing its order is not reversible error.

IV.

 

            Finally, respondent moved to strike parts of appellant's brief and appendix pertaining to a document that states the maximum weekly unemployment benefit in Minnesota.  Appellant did not present that document to the district court, and, therefore, it is not part of the record.  Generally, this court will not consider evidence outside the district court record and "will strike documents in a brief that are not part of the appellate record."  State v. Dalbec, 594 N.W.2d 530, 533 (Minn. App. 1999).  Respondent's motion to strike is granted.

            Affirmed; motion granted.