Brenda Lee Johnson, f/k/a Brenda Lee Lesewski, petitioner, Respondent, vs. Jeffrey Thomas Lesewski, Appellant.

Brenda Lee Johnson, f/k/a Brenda Lee Lesewski, petitioner, Respondent, vs. Jeffrey Thomas Lesewski, Appellant. A06-1637, Court of Appeals Unpublished, August 21, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1637

 

Brenda Lee Johnson,

f/k/a Brenda Lee Lesewski, petitioner,
Respondent,
 
vs.
 
Jeffrey Thomas Lesewski,
Appellant.

 

Filed August 21, 2007

Reversed

Wright, Judge

 

Washington County District Court

File No. F0-99-2730

 

 

James J. Lawton, III, 1100 West Seventh Street, St. Paul, MN  55102 (for respondent)

 

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

            Considered and decided by Wright, Presiding Judge; Stoneburner, Judge; and Dietzen, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

Appellant-husband challenges the district court's decision to modify respondent€‘wife's spousal-maintenance award, arguing that wife failed to establish a substantial change in circumstances rendering the existing maintenance award unreasonable and unfair.  We reverse. 

FACTS

 

The May 2000 judgment and decree dissolving the marriage of appellant Jeffrey Lesewski and respondent Brenda Johnson awarded Johnson sole physical custody of the parties' four children, found that she was unemployed and had reasonable monthly expenses of $4,523.45, and found that Lesewski had a monthly net income of $8,491.98 and reasonable monthly expenses of $3,400.  A stipulated provision of the judgment and decree awarded Johnson temporary rehabilitative spousal maintenance for six years, which the parties anticipated would permit Johnson to attend school, become certified as a medical transcriptionist, and become self-supporting.  The stipulated provision required Lesewski to pay Johnson monthly spousal maintenance of $1,800, with periodic incremental decreases during the six-year term.  The parties stipulated that spousal maintenance would terminate on April 30, 2006.

            In 2002, Lesewski moved to decrease his spousal-maintenance obligation.  The district court granted the motion, finding that Lesewski's monthly net income had decreased by approximately $3,000, which constituted a substantial change in circumstances rendering the existing maintenance obligation unreasonable and unfair.  Lesewski's monthly maintenance obligation was reduced to $1,000.  When the district court reduced the spousal maintenance, Johnson remained unemployed with monthly expenses of $4,523.45.  But she was expected to complete school by fall 2003.

In July 2003, Lesewski again moved to decrease his spousal-maintenance obligation, and the district court denied the motion.  Johnson was diagnosed with breast cancer in March 2005.  In March 2006, Johnson moved to modify spousal maintenance from temporary to permanent and to increase the monthly amount to $1,500.  Lesewski filed a counter-motion to terminate spousal maintenance as of April 30, 2006, as stipulated under the judgment and decree. 

Based on Johnson's 2005 IRS W-2 form, the district court determined that Johnson has an annual net income of $8,157.30, or $680 per month, and reasonable monthly expenses of $4,749.58.  The district court found that Lesewski's monthly net income fluctuates between $5,500 and $6,000, and his reasonable monthly expenses are $2,975.  Based on these findings, the district court granted Johnson's motion to modify spousal maintenance by making it permanent until Johnson remarries, dies, or further order of the district court and increasing the monthly amount to $1,200.  This appeal followed.[1]

D E C I S I O N

 

"The district court has broad discretion in deciding whether to modify a spousal maintenance award."  Kielley v. Kielley, 674 N.W.2d 770, 775 (Minn. App. 2004).  We review a district court's modification decision for an abuse of discretion.  Dougherty v. Dougherty, 443 N.W.2d 193, 194 (Minn. App. 1989).   In doing so, we review the evidence in the light most favorable to the district court's findings, Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000), and give deference to the district court's credibility determinations, In re Welfare of M.D.O., 462 N.W.2d 370, 374-75 (Minn. 1990).  "A district court abuses its discretion when its decision is against logic and the facts on record."  Kielley, 674 N.W.2d at 775 (quotation omitted). 

            When seeking a modification of spousal maintenance, the moving party must demonstrate a substantial change in circumstances that makes the current maintenance award unreasonable and unfair.  Minn. Stat. § 518.64, subd. 2(a) (2004)[2]; Tuthill v. Tuthill, 399 N.W.2d 230, 231-32 (Minn. App. 1987).  The Minnesota Supreme Court has cautioned that a district court's broad discretion to modify spousal maintenance should be exercised carefully.  Sieber v. Sieber, 258 N.W.2d 754, 757 (Minn. 1977).  If, as here, the district court has adopted a maintenance stipulation, the moving party bears a heavy burden because the stipulation represents a voluntary agreement of the parties' rights and obligations of which the maintenance award is only one aspect of the entire equitable settlement.  Claybaugh v. Claybaugh, 312 N.W.2d 447, 449 (Minn. 1981);  Sieber, 258 N.W.2d at 757 (stating that when spousal-maintenance stipulation was adopted, district court should be "even more reluctant to alter the terms of the decree").    

            In granting Johnson's motion, the district court found that, contrary to the expectations of the parties and the district court when the judgment was entered, Johnson is now unable to become self-supporting.  Accordingly, there is a substantial change in circumstances rendering Johnson's existing temporary maintenance award unreasonable and unfair.  See Hecker v. Hecker, 568 N.W.2d 705, 709-10 & n.2 (Minn. 1997) (holding that failure to attain status assumed by judgment can be substantial change in circumstances justifying modification of maintenance).  Lesewski argues that this determination is not supported by the record.  We agree.

            The district court's finding that Johnson "had health issues over the past year and thus far has not found employment that enables her to become self-supporting" is without support in the record.  Although it is undisputed that Johnson has been treated for breast cancer, the district court did not address, nor does the record show, what effect, if any, her diagnosis, treatment, and prognosis have on her ability to become self-supporting.   

            Johnson's attorney averred at the modification hearing that Johnson's medical condition prevented her from working for "huge parts" of 2005.  But her medical records indicate otherwise.  After her March and April 2005 surgeries and May 2005 chemotherapy treatment, she was instructed to resume normal activity "as tolerated."  In April 2005, Johnson was instructed to follow supplemental-care instructions, which were not included in the record.  After reconstructive surgery in November 2005, Johnson was advised that she could resume work in three days, and following a December 2005 procedure, she was discharged with "no limitations." 

            Johnson's affidavit asserts that she "will have another surgery in the next few months," but she failed to provide medical evidence or expert affidavit testimony to address the length of recovery; the need for ongoing treatment, if any; and the impact on her ability to work.  We must base our decision on "evidence actually presented to the [district] court and shown by the record on appeal."  W. World Ins. Co. v. Anothen, Inc., 391 N.W.2d 70, 73 (Minn. App. 1986) (quotation omitted).  We are mindful that the stage of the illness and course of treatment may have a dramatic impact on the ability to earn income.  But the state of the record before us renders the actual impact on this critical factor speculative at best. 

            Lesewski argues that the district court's determination that Johnson is not self-supporting also is erroneous because the district court understated Johnson's net income.  The record does not contain Johnson's individual income tax returns or pay stubs.  But based on Johnson's 2005 IRS W-2 form, which does not indicate the number of hours she worked, the district court found that Johnson's annual gross income is $10,235.09.  In doing so, the district court fails to reconcile this determination with its finding, based on Johnson's 2006 affidavit testimony, that she works between 35 and 40 hours each week for $13 an hour (resulting in a minimum annual gross income of $23,660).  Nor did the district court address the fact that this annual income results in a monthly income level that is greater than the rehabilitative maintenance that Johnson was receiving when she moved to modify the award.    

In addition, Lesewski contends that the district court's income determination for Johnson was deficient because it failed to assess whether Johnson had rental income and, if so, the amount of that income.  The financial resources of the party seeking maintenance include income produced by the party's assets.  Fink v. Fink, 366 N.W.2d 340, 342 (Minn. App. 1985); see Minn. Stat. § 518.552, subd. 2(a) (2006) (providing that district court considers "financial resources of the party seeking maintenance, including marital property apportioned to the party, and the party's ability to meet needs independently" to determine maintenance obligations).  The record establishes that Johnson and a third party purchased a duplex home in 2004 for $232,500.  Johnson maintains that her contribution toward the purchase of the duplex was derived from an inheritance.  But the record contains no evidence of the value of the inheritance or the amount of rental income, if any, from the property.  It was Johnson's burden to provide the district court with evidence to make this determination.  See Spooner v. Spooner, 410 N.W.2d 412, 413 (Minn. App. 1987) (holding that moving party has burden to provide district court with financial information to enable accurate determination of income).  There is no indication that the district court considered the extent to which this real-estate investment generates income for Johnson.

When viewing the evidence in the light most favorable to the district court's decision to modify spousal maintenance, the record does not support the district court's determination that there has been a substantial change in circumstances that renders the maintenance award unreasonable and unfair.[3]  Accordingly, the district court's decision to modify the spousal-maintenance award was an abuse of discretion.[4]

Reversed. 

[1] Because Johnson did not file an appellate brief, we decide this case on its merits, as required by Minn. R. Civ. App. P. 142.03.

[2] The 2004 version of Minn. Stat. §518.64 governed modification of both child support and spousal maintenance.  In the 2006 revision of the child-support statutes that became effective January 1, 2007, Minn. Stat. §518.64, subd. 2 (2004), was amended and renumbered as Minn. Stat. § 518 A. 39 (2006).  Because this maintenance appeal does not involve child support, we cite the 2004 version of the statute.

 

[3] In light of our decision, we do not reach Lesewski's argument that the district court's findings as to Lesewski's reasonable monthly expenses were clearly erroneous.

 

[4] We observe that Johnson did not seek, as an alternative, the reservation of maintenance should her condition require spousal maintenance in the future.  See Tomscak v. Tomscak, 352 N.W.2d 464, 466 (Minn. App. 1984) (reversing when party argued that district court abused its discretion by not reserving question of maintenance should health condition recur).  We, therefore, decline to address the issue.