In re the Marriage of: Susan M. Bocklund, n/k/a Susan M. Balster, petitioner, Appellant, vs. Duane R. Bocklund, Respondent.

In re the Marriage of: Susan M. Bocklund, n/k/a Susan M. Balster, petitioner, Appellant, vs. Duane R. Bocklund, Respondent. A06-210, Court of Appeals Unpublished, November 14, 2006.

This opinion will be unpublished and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

A06-210

 

 

In re the Marriage of:

Susan M. Bocklund, n/k/a Susan M. Balster, petitioner,

Appellant,

 

vs.

 

Duane R. Bocklund,

Respondent.

 

 

Filed November 14, 2006

Affirmed

Huspeni, Judge*

 

 

Stearns County District Court

File No. F9-04-4744

 

 

Kevin L. Holden, Holden Law Offices, 816 West St. Germain, Suite 102, P.O. Box 1823, St. Cloud, MN 56302 (for appellant)

 

John T. Lund, Lund Kain & Scott, P.A., 13 South Seventh Avenue, St. Cloud, MN 56301 (for respondent)

 

 

 

            Considered and decided by Kalitowski, Presiding Judge; Dietzen, Judge; and Huspeni, Judge.

U N P U B L I S H E D   O P I N I O N

HUSPENI, Judge

            Appellant challenges the district court's refusal to award her permanent spousal maintenance and attorney fees.  Because the district court did not abuse its discretion in declining to make either award, we affirm.

FACTS

            Respondent Duane Bocklund and appellant Susan Bocklund (k/n/a Susan Balster), signed a marital termination agreement in 2004, ending their eight-year marriage.  The agreement distributed the parties' property and reserved the issue of spousal maintenance for determination by the court.  Balster, 46 years old, received the parties' house and $68,400 in marital equity, $20,400 from her savings account, a 1996 Ford Explorer, and a $251 monthly payment from Bocklund's retirement annuity.  Bocklund, 59 years old, received $50,000 from his savings account, $25,077 from his thrift savings plan, $6,600 from Balster's savings account, a 2003 Chevrolet Silverado, and the remainder of his retirement annuity valued at roughly $3,600 per month.  A decree of dissolution was entered on October 27, 2004.

            The district court subsequently held an evidentiary hearing on the issue of maintenance.  Balster testified to the following:  that she has a high school diploma, and has always held jobs requiring unskilled labor; that she earns less than $20,000 a year; that prior to getting married she was able to support herself financially by working part-time as a bartender; that she continued to work part-time as a bartender during her marriage, albeit at a different establishment; that she presently held the same position, but could not work full-time because her employer will not allow it; that she has been diagnosed with multiple sclerosis,[1] which has been in remission throughout the marriage; that she has high blood pressure and asthma; that none of her ailments impede her ability to work full-time.  Balster also submitted personal income tax records as evidence of her earnings, and a proposed monthly budget.

            In its findings denying Balster's maintenance request, the district court recited Balster's past and present work history; found her present earnings to be $1,300 net per month; and her reasonable expenses to be $2,000 per month.  The court also found that Balster had been drawing $500-$800 per month from savings in order to cover expenses, detailed her remaining assets, and acknowledged the health issues.  The court concluded that Balster was capable of self-support, considering the standard of living established during the marriage, her property, and all other relevant circumstances.

            Balster moved for amended findings or a new trial.  The district court held a hearing on the motion, at which Balster agreed with the district court's findings regarding her monthly income and expenses but disputed the finding that she could be self-supporting.  The district court denied the motions and this appeal followed.

D E C I S I O N

            District courts have broad discretion in considering spousal maintenance awards, and will only be reversed if this court finds an abuse of discretion.  Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982).  Each case must be decided on its own facts, but the "basic consideration is the financial need of the spouse receiving the maintenance, and the ability to meet that need balanced against the financial condition of the spouse providing that maintenance."  McConnell v. McConnell, 710 N.W.2d 583, 585 (Minn. App. 2006).  Findings of fact made in reaching a decision will not be overturned unless clearly erroneous.  Id.  "Clearly erroneous" means the findings are "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Tonka Tours, Inc. v. Chadima, 372 N.W.2d 723, 726 (Minn. 1985).

            Spousal maintenance awards are governed by Minn. Stat. § 518.552 (2004).  Subdivision 1 explains that a court may grant a maintenance award if it finds that the requesting spouse

                        (a) lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education, or

                        (b) is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment . . . .

 

Minn. Stat. § 518.552, subd. 1.  In this case, the district court specifically found Balster had sufficient property to provide for her reasonable needs and was capable of self-support.

1.         Balster's monthly expenses

            On appeal, Balster disputes the district court's finding that her reasonable monthly expenses were $2,000 rather than the $2,585 she submitted.  Bearing in mind the standard of review observed by this court, we find no evidence in the record that clearly weighs against the district court's determination of expenses.  In addition, Balster's argument regarding expenses is significantly undermined by the fact that at the hearing on her motion for a new trial or amended findings she agreedwith the district court on the finding she now disputes.  There is no basis for this court to disturb the finding of the district court regarding Balster's monthly expenses.  

2.         Asset principal

            Balster next argues that the district court abused its discretion in denying maintenance because without such an award she must invade her savings to meet expenses each month.  Implicit in this argument is a challenge to the finding of the district court that Balster is able to be self-supporting. 

            Balster directs our attention to Fink v. Fink, in which we stated that spouses are not normally expected to "invade the principal of their investments to satisfy their monthly financial needs."  366 N.W.2d 340, 342 (Minn. App. 1985).  But Fink does not require a reversal in the present case.  Under the clearly erroneous standard, evidence must be viewed in a light most favorable to the finding.  Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001).  Here, the evidence shows that Balster is capable of supporting herself through attaining full-time employment.  See Schallinger v. Schallinger, 699 N.W.2d 15, 22 (Minn. App. 2005) (holding that spouse employed part-time who could not meet monthly needs and was in good health was not prevented from finding full-time work to meet needs), review denied (Minn. Sept. 28, 2005). 

            The district court did not criticize Balster for continuing the part-time employment she had engaged in for many years.  Neither did the court impute income to her.  Nonetheless, the court's finding that Balster could be self-supporting is consistent with evidence in the record.  Even if her present part-time status is involuntary because her present employer does not permit full-time employment, there is no evidence in the record that a job that would permit Balster to meet her monthly expenses is not reasonably attainable.  The evidence supports the conclusion that Balster could support herself without invading her asset principal.  The district court's finding is thus not clearly erroneous.

3.         Ability to pay and preference for permanent maintenance

            Balster also asserts that the district court abused its discretion because (1) Bocklund has the ability to pay, and (2) if it is uncertain the requesting spouse will ever be self-supporting the court must award permanent maintenance.  We address each of these assertions in turn.

            While Bocklund does not allege that he is unable to pay spousal maintenance, ability to pay is but one factor to be considered in determining what level of maintenance should be awarded under Minn. Stat. § 518.552, subd. 2, after the court has already determined that maintenance is warranted under Minn. Stat. § 518.552, subd. 1.  Similarly, a preference for permanent maintenance does arise under the statute, but, again, only after the court has determined that maintenance is warranted, but the ability of the obligee to become self-supporting is in doubt.  Minn. Stat. § 518.552, subd. 3.  The district court found Balster can be self-supporting and, as discussed above, the evidence sustains that finding.  Balster's arguments regarding Bocklund's ability to pay and the qualification for permanent maintenance are, therefore, not relevant here.

4.         Attorney fees

            Finally, Balster argues that the district court wrongly denied her request for attorney fees.  We note initially that under the provisions of the dissolution decree each party shall pay his or her own attorney fees.  Thus, it may be argued that there is no basis upon which fees could be awarded in connection with consideration of the maintenance issue.  Balster understandably rejects this interpretation.  Even accepting her view, however, we conclude that the district court's denial of the request for attorney fees was not improper.

            The decision to award attorney fees rests almost entirely within the discretion of the district court, and will only be disturbed if the court clearly abused its discretion.  Schallinger, 699 N.W.2d at 24.  Under Minnesota law, a district court can award attorney fees if the request is made in good faith, the non-requesting spouse can afford to pay the fees, and the requesting spouse cannot afford to pay the fees.  Minn. Stat. § 518.14, subd. 1 (2004). 

            Balster argues that she is entitled to attorney fees because Bocklund can afford to pay.  But as with spousal maintenance, the non-requesting spouse's ability to pay is only considered if the requesting spouse has demonstrated an inability to pay.  Balster argues that she cannot pay her fees without depleting her asset principal.  The fact that a spouse will have to pay attorney fees with invested funds is not dispositive, however.  We recognize that in Beck v. Kaplan, the supreme court upheld an attorney-fees award where the district court found the requesting spouse would have been forced to pay the fees with funds in her retirement accounts.  566 N.W.2d 723, 727 (Minn. 1997).  In Schallinger, however, denial of an attorney-fees award was affirmed on appeal despite the fact that a spouse was required to liquidate a portion of her investments to pay her attorney fees.  699 N.W.2d at 24.  Affirmance in this court of disparate outcomes in the district court highlights and acknowledges the wide discretion vested in district courts.

            The district court determined Balster had the ability to support herself and could afford to pay her attorney fees.  We conclude that the district court acted within its broad discretion in deciding both the issue of maintenance and of attorney fees.

            Affirmed.

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

[1]  The record reflects that the diagnosis predated the marriage.