In re the Marriage of: Meryle Joan Vinje, petitioner, Appellant, vs. Michael Ray Vinje, Respondent.

In re the Marriage of: Meryle Joan Vinje, petitioner, Appellant, vs. Michael Ray Vinje, Respondent. A05-2050, Court of Appeals Unpublished, June 13, 2006.

This opinion will be unpublished and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

A05-2050

 

In re the Marriage of:

Meryle Joan Vinje, petitioner,

Appellant,

 

vs.

 

Michael Ray Vinje,

Respondent.

 

Filed ­­­June 13, 2006

Affirmed; motion denied

Dietzen, Judge

 

Dakota County District Court

File No. F4-00-7434

 

John P. Guzik, Guzik Law Office, P.A., 2332 Lexington Avenue North, Roseville, MN 55113 (for appellant)

 

Michael G. Hamilton, P.O. Box 65, 755 Westview Drive, Hastings, MN 55033 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Dietzen, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant challenges the district court's denial of her motion to increase and extend her temporary spousal maintenance award, arguing that the district court erred: (1) in determining that appellant was required to prove the requirements of Minn. Stat. § 518.64 (2004), i.e., that a substantial change in circumstances occurred that rendered the existing award unreasonable and unfair; (2) in denying appellant's motion to modify; and (3) in not reserving the issue of spousal maintenance.  We affirm.

FACTS

            Appellant Meryle Joan Vinje and respondent Michael Ray Vinje were married for 26 years until their marriage was dissolved in April 2000.  Appellant works for L.A. Weight Loss.  Respondent is a self-employed truck driver for and owner of Midwest Recycling Resource, Inc.  The parties have three adult children.  

In August 2000, based on stipulation of the parties, the court filed an amended judgment that divided property between the parties, awarded respondent the parties' home subject to a $40,000 mortgage and a home-equity loan of $60,000, and awarded to appellant undeveloped property subject to a contract for deed with a balance of approximately $90,000.  The district court ordered appellant to make the contract-for-deed payments of $800 per month and respondent to make the home-equity-loan payments of $650 per month on their respective properties; and ordered respondent to pay appellant $150 per month as the difference between the monthly payment amounts until the total payments equaled $30,000.

The amended judgment also ordered respondent to pay appellant temporary spousal maintenance in the amount of $850 a month for 60 months, ending on August 1, 2005, "unless either party requests review of said obligation as to amount and/or duration, prior to said expiration."   At the time of the amended judgment, appellant was unemployed, had no income, and had monthly living expenses of $2,600.  Respondent had a net monthly income of approximately $8,000 and was able to meet his monthly expenses without difficulty. 

In May 2005, appellant moved for an order finding "that a substantial change in circumstances has occurred since entry of the Amended Judgment and Decree which make the terms of that decree unreasonable and unfair" and requested that she be awarded spousal maintenance of $3,500 per month "until the remarriage of [appellant], [or] the death of either party . . . ."  Both parties treated the motion as one to modify spousal maintenance under Minn. Stat. § 518.64 and submitted affidavits in support of their respective positions.

Following a hearing, the district court denied appellant's motion finding that at the time of the amended judgment, appellant was 44 years old, had worked for her husband but had no realized income, and had monthly expenses of $2,600; and that respondent had a net monthly income of $8,000 and was able to meet his monthly living expenses.  The district court also found that since the amended judgment, appellant has returned to school and became licensed as a financial advisor, has a monthly net income of approximately $2,300, and has monthly living expenses of $3,448.  But respondent's net monthly income has decreased to $2,173 with monthly expenses, including spousal maintenance and living expenses of his new wife, of $4,493.  Appellant's real estate has increased in assessed value and has equity of approximately $213,500.  Respondent has no investments or retirement plan, and has approximately $10,000 in equity in his home. 

The district court determined that respondent's income had substantially decreased, that appellant has had sufficient time to rehabilitate herself financially, and that appellant's income had substantially increased since the time of the amended judgment.  The district court denied appellant's motion and did not reserve the issue of spousal maintenance for a future date.  This appeal follows.

D E C I S I O N

I.

Appellant contends that the district court erred by considering her motion as a motion to modify spousal maintenance under Minn. Stat. § 518.64 (2004), rather than as a motion to extend and increase the award under Minn. Stat. § 518.552 (2004).  Appellant points to the language of the amended judgment that spousal maintenance was subject to "review" to support her argument.

But appellant failed to make this argument to the district court and raises the argument for the first time on appeal.  We have carefully reviewed appellant's moving papers before the district court and find no request for relief under Minn. Stat. § 518.552.  Here, both parties and the district court treated appellant's motion as a motion to modify under Minn. Stat. § 518.64, which requires that appellant prove a substantial change in circumstances that renders the current award of spousal maintenance unfair and unreasonable.

The district court did not make findings regarding Minn. Stat. § 518.552 factors. The role of the court of appeals is to correct errors.  In re Welfare of M.D.O., 462 N.W.2d 370, 374­75 (Minn. 1990).  It is not the province of appellate courts to determine fact issues on appeal, Kucera v. Kucera, 275 Minn. 252, 25455, 146 N.W.2d 181, 183 (1966), and we decline to do so here.  And this court generally will not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  Therefore, we review appellant's motion as a motion to modify the maintenance award under Minn. Stat. § 518.64.

II.

Appellant contends that the district court abused its discretion in denying her motion to modify the maintenance award under Minn. Stat. § 518.64.  Whether to modify maintenance is discretionary with the district court, and its decision will not be reversed absent a clear abuse of that discretion.  Youker v. Youker, 661 N.W.2d 266, 269 (Minn. App. 2003), review denied (Minn. Aug. 5, 2003).  

Before a district court can modify maintenance, it must find that there has been a significant change in the parties' circumstances that renders the original judgment unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2 (2004); Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).  Generally, in applying Minn. Stat. § 518.64, a court applies the factors set forth in Minn. Stat. § 518.552 (2004).  See Minn. Stat. § 518.64, subd. 2(c) (2004) (referencing the factors in Minn. Stat. § 518.552).  But the failure to show a substantial change in circumstances precludes review of the Minn. Stat. § 518.552 factors.  Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987). 

"A party moving to modify an award of maintenance bears the burden of showing a substantial change of circumstances since the last time maintenance was modified, or if maintenance has not been modified, since it was originally set."  Youker, 661 N.W.2d at 269.  The moving party must then demonstrate that these changed circumstances render the original award unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).  "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous."  Gessner, 487 N.W.2d at 923.

Appellant does not argue how the circumstances have changed to justify extending the maintenance award.  Appellant's net monthly income has increased from $0 to $2,300, and her expenses have increased from $2,600 to $3,448 per month.  But respondent's financial condition has worsened significantly.  His net monthly income decreased from $8,000 to $2,173, and his monthly expenses are $4,493.  And appellant's assets have increased to $213,500, but respondent's assets are limited to the $10,000 equity in the property he was awarded.

Based on the record, we cannot say that the findings are clearly erroneous.  Although there has been a change in circumstances, appellant has not established that those changes are substantial and render the original award unreasonable or unfair; therefore, we do not reach the factors under Minn. Stat. § 518.552.  See Tuthill, 399 N.W.2d at 232 (holding that the failure to show a substantial change in circumstances precludes a review of other factors addressed in the statute).

III.

Appellant contends that the district court abused its discretion by failing to reserve appellant's right to request a future award of spousal maintenance.  Whether to reserve maintenance is discretionary with the district court. See Prahl v. Prahl, 627 N.W.2d 698, 703 (Minn. App. 2001) (applying abuse-of-discretion standard to maintenance reservation).

The district court "may reserve jurisdiction of the issue of maintenance for determination at a later date."  Minn. Stat. § 518.55, subd. 1 (2004).  "Reservation allows the court to later assess and address future changes in one party's situation as those changes arise, without prematurely burdening the other party."  Prahl, 627 N.W.2d at 703.  Failure to reserve jurisdiction for continuing maintenance forecloses the right to consider the issue after temporary maintenance ends.  Griepp v. Griepp, 381 N.W.2d 865, 870-71 (Minn. App. 1986). 

Here, the only basis on which appellant alleges that the district court abused its discretion is that "[a]ppellant may be in need of spousal maintenance at some point in the future[.]"  Appellant does not allege any specific health problems or other issues that would make a reservation of maintenance appropriate.  Cf. Van de Loo v. Van de Loo, 346 N.W.2d 173, 178 (Minn. App. 1984) (affirming district court's decision to reserve maintenance issue because it would protect parties' interests, including party whose future health may deteriorate significantly); Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) (reversing district court's decision not to reserve maintenance when party seeking maintenance may have recurrence of cancer that would drastically change her financial situation and make maintenance necessary), superseded by statute as stated in Clark v. Clark, 642 N.W.2d 459 (Minn. App. 2002).  Therefore, appellant has not shown that the district court abused its discretion in not reserving the issue of spousal maintenance.

IV.

Respondent moved for appellate attorney fees.  The motion asserts that the appeal "is without legal or factual support, and has been filed in bad faith."  Rule 139.06 prescribes the procedure for seeking attorney's fees in appellate courts, but the party must identify a substantive basis for awarding appellate fees.  Minn. R. Civ. App. P. 139.06 1998 advisory comm. cmt.  Respondent's motion does not identify any contractual or statutory basis for awarding fees.  Because the motion was not served at least 21 days in advance of filing to afford the appellant an opportunity to withdraw any challenged claim or allegation, it is improper under Minn. Stat. § 549.211, subd. 4(a) (2004).  And respondent has not established that an award is appropriate under Minn. Stat. § 518.14, subd. 1 (2004).  Notwithstanding our affirmance of the district court's decision, we are not convinced that this appeal was brought in bad faith.  Thus, respondent's motion for attorney fees and expenses is denied.  As the prevailing party on appeal, respondent may tax costs and disbursements in accordance with Minn. R. Civ. App. P. 139.01-.03 by serving and filing a timely notice of taxation.    

Affirmed; motion denied.

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