In Re the Marriage of Aaker

447 N.W.2d 607, 1989 Minn. App. LEXIS 1212, 1989 WL 135333
CourtCourt of Appeals of Minnesota
DecidedNovember 14, 1989
DocketCX-89-339
StatusPublished
Cited by7 cases

This text of 447 N.W.2d 607 (In Re the Marriage of Aaker) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Aaker, 447 N.W.2d 607, 1989 Minn. App. LEXIS 1212, 1989 WL 135333 (Mich. Ct. App. 1989).

Opinions

OPINION

DAVID R. LESLIE, Judge.

Cathie Aaker appeals from an amended judgment and decree entered January 27, 1989, determining property, spousal maintenance and child support issues in a dissolution proceeding. Cathie disputes the trial court’s determinations, claiming that the trial court (1) erroneously provided that spousal maintenance payments would terminate upon Cathie’s cohabitation for more than six months when it was reasonable to conclude that her basic needs were being provided for; (2). abused its discretion in its award of temporary spousal maintenance; and (3) abused its discretion in its award of child support. Douglas Aaker filed a Notice of Review challenging the amended judgment as to spousal maintenance and child support. We affirm the trial court’s decision.

FACTS

Cathie and Douglas Aaker were married on June 24, 1972. At the time of trial, Cathie was 39 years of age. The parties have three minor children. The parties separated in September 1985 and Cathie commenced this action in August 1986.

Douglas is an orthodontist and the sole owner of Douglas T. Aaker, D.D.S., P.A. He has conducted his orthodontic practice in the St. Cloud area for 13 years. Douglas has a fully-equipped office with a full staff. From 1982 to 1987, respondent’s salary range was the following:

[610]*6101982 $117,000
1983 $117,000
1984 $145,000
1985 $139,000
1986 $103,000
1987 $123,000

There was evidence at trial that Douglas’ practice and income were declining due to his emotional state and his failure to promote his practice.

Cathie received a bachelor’s degree in art education in 1973. Following her graduation from college she worked for Northwestern Bell as a service representative from April 1973 through April 1975. Thereafter, Cathie was employed on a limited, part-time basis in various capacities in Douglas’ orthodontic practice, including that of a bookkeeper, receptionist, and dental assistant until 1985. In addition, Cathie was active in the promotion of Douglas’ orthodontic practice and acted as an office • administrator, helping to develop policies and working with his staff and staff problems. During their marriage, Cathie was active as a homemaker and, after the birth of the parties’ children, as a mother. At the time of trial, Cathie was not employed outside the home.

On November 2, 1987, the parties entered into a stipulation providing that they share joint legal and physical custody of their minor children. Based on this stipulation, the trial court ordered that the parties shall have joint legal and physical custody of their minor children. The order was incorporated into the original findings and conclusions of the court.

ISSUES

1. Are the issues raised by respondent’s Notice of Review properly before this court?

2. Did the trial court err in its award of spousal maintenance as to either duration or amount?

3. Did the trial court err in its award of child support?

4. Is Cathie entitled to attorney fees?

ANALYSIS

1. Cathie argues that because the issues Douglas raised in his Notice of Review were not included in the amended judgment, he is precluded from obtaining review of those issues. Douglas, however, has chosen only to brief issues raised by the amended judgment. Therefore, this court may properly review the issues Douglas raises in his brief regarding the level of spousal maintenance and child support. See Burwell v. Burwell, 433 N.W.2d 155, 156 (Minn.Ct.App.1988).

2. Both parties argue that the trial court erred in its award of spousal maintenance as to both duration and amount. The trial court has broad discretion in determining the duration and amount of maintenance. Zamora v. Zamora, 435 N.W.2d 609, 611 (Minn.Ct.App.1989). The trial court abuses its discretion when it comes to a clearly erroneous conclusion that is against the logic and the facts on the record. Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn.1984). The trial court’s decision must be examined in light of the factors enumerated in Minn.Stat. § 518.552 (1988). Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn.1982).

The trial court amended the judgment and decree to allow for the termination of respondent’s spousal maintenance obligation if appellant

[cohabits] for more than six months * * * under such circumstances that it is reasonable to conclude that [her] basic needs are being provided by such other person.

Cathie contends that this amendment gives Douglas the discretion to arbitrarily terminate his maintenance obligation to Cathie without seeking prior approval by the trial court if he believes in good faith that her needs are otherwise provided for. Douglas argues that he can terminate spousal maintenance upon evidence of cohabitation, but acknowledges that if Cathie moves the trial court to have maintenance continued, the burden shifts back to him to prove that cohabitation exists and that it is of economic significance to Cathie. While we share some of the concern expressed in the dis[611]*611sent on this issue, we emphasize that the parties have not challenged or briefed the legality of this amendment, so we address only the interpretation and trust that the interpretation will be helpful and not perceived as “worse than worthless” as concluded by the dissent.

We disagree with both parties’ interpretations of the trial court’s cohabitation provision. To avoid remanding and visiting additional expenses on the parties, we hold that the appropriate and reasonable interpretation of the amended provision is that even if Douglas has reason to believe that Cathie has cohabited for more than six months with any adult person where it is reasonable for him to conclude that her basic needs are being provided to her by such adult person, Douglas cannot terminate spousal maintenance on his own. Instead, Douglas must move the court pursuant to Minn.Stat. § 518.64, subd. 1. As part of the petition to the trial court for modification or termination of his maintenance obligation, Douglas would have to show a “substantially increased or decreased need” on the part of Cathie pursuant to Minn.Stat. § 518.64, subd. 2(2). Then, only upon a trial court’s order modifying or terminating maintenance could Douglas modify or terminate his spousal maintenance payments to Cathie. See Abbott v. Abbott, 282 N.W.2d 561, 564-65 (Minn.1979); Sieber v. Sieber, 258 N.W.2d 754, 758 (Minn.1977).

Minn.Stat. § 518.552,- subd. 3 (1988) requires that a trial court order permanent maintenance if the court is uncertain that the spouse seeking maintenance can ever become self-supporting. See Nardini v. Nardini, 414 N.W.2d 184, 198 (Minn.1987).

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In Re the Marriage of Aaker
447 N.W.2d 607 (Court of Appeals of Minnesota, 1989)

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Bluebook (online)
447 N.W.2d 607, 1989 Minn. App. LEXIS 1212, 1989 WL 135333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-aaker-minnctapp-1989.