This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2016).
STATE OF MINNESOTA IN COURT OF APPEALS A16-0147
In re the Marriage of: Elena Vladimirovna Tokarev, petitioner, Respondent,
vs.
Vladimir Efimovich Tokarev, Appellant.
Filed January 30, 2017 Affirmed Bratvold, Judge
Ramsey County District Court File No. 62-FA-13-1768
D. Patrick McCullough, McCullough & Associates, P.A., St. Paul, Minnesota (for respondent)
Mark A. Olson, Olson Law Office, Burnsville, Minnesota (for appellant)
Considered and decided by Stauber, Presiding Judge; Worke, Judge; and Bratvold,
Judge.
UNPUBLISHED OPINION
BRATVOLD, Judge
Appellant-husband challenges the district court’s factual findings regarding its
temporary spousal-maintenance award to respondent-wife in the dissolution decree. Husband also challenges the district court’s subsequent order amending the decree to
provide for permanent spousal maintenance. Because the district court’s factual findings
are not clearly erroneous, and the district court did not abuse its discretion by amending
the decree to provide for permanent spousal maintenance, we affirm.
FACTS
In 1985, husband and wife were married. In 1993, the parties moved from Russia to
the United States for husband’s career. They first lived in Pennsylvania for ten years and
then moved to Minnesota in 2003. The parties have a 13-year-old minor son and a 29-year-
old adult son. The parties enjoyed a comfortable standard of living during the marriage.
They lived in a 3,500 square-foot home and owned an unencumbered one-bedroom
condominium; they also accumulated retirement funds and savings, took family vacations,
belonged to a health club, and their children played hockey.
On May 31, 2013, after 27 years of marriage, wife petitioned to dissolve the
marriage. Wife moved out of the family home on November 3, 2013, because there was
“tremendous stress” while the parties were living together. Wife moved into the parties’
condominium and continued to live there throughout the dissolution proceedings; husband
remained in the family home.
Before trial, husband and wife entered into a partial stipulation, which the court
accepted and incorporated into the dissolution decree. In the stipulation, the parties agreed
to equally split parenting time and custody of their minor child; they also agreed that the
final decree would award wife the condominium and husband would sell the family home.
In the dissolution decree, the district court ordered husband to pay wife $181 per month in
2 basic child support until their youngest child reaches the age of 18 or graduates high school.
The district court held a two-day court-trial to determine the remaining issues, specifically:
the ability of the parties to bring their minor child to Russia, spousal maintenance, and
division of the parties’ assets and debts. Only spousal maintenance is at issue in this appeal.
At trial, husband and wife each testified and submitted evidence relating to spousal
maintenance. In summary, wife is 51 years old and employed full-time at a call center
earning $13 per hour. Wife is physically and mentally healthy and capable of working a
full-time job. Husband is 52 years old and employed as a contract software engineer
earning an annual salary of $112,000. Throughout the marriage, husband was the primary
wage earner for the family. On appeal, husband challenges the district court’s
determinations of wife’s income, the parties’ expenses, and permanency of maintenance.
The district court record on each of these determinations is summarized below.
Wife’s Income and Work Experience
In 1986, wife graduated from Siberian State Industrial University with a four-year
degree that is the equivalent of a U.S. bachelor’s degree in engineering. After graduating,
wife was employed in Russia for eight years as an economist at a government medical
institute. 1
In 1993, the parties left Russia and moved to Pennsylvania for husband’s career.
The district court found that wife’s foreign degree “has not translated into marketable skills
1 Husband testified that, in 1991, wife completed courses in business management, marketing, and advertising in Russia, but the district court credited wife’s testimony that she never completed those courses.
3 during her work history.” Between 1993 and 1995, wife did not have a visa permitting her
to work in the United States. After obtaining a visa in 1995, wife returned to the workforce,
working part-time in retail during the holiday season. In November 1997, wife completed
60 hours of real estate training courses, but did not take or complete the state licensure
exam. Wife has not been employed as an economist or engineer while living in the United
States.
From 1998 to 2001, wife worked 30 hours per week as a receptionist at a real estate
franchise, earning approximately $1,032 per month. From 2001 to 2003, wife worked part-
time as a customer service representative at a medical research firm earning approximately
$1,084 per month.
In 2003, the parties moved to Minnesota for husband’s career. Between 2003 and
2013, wife stayed at home to raise the two children. During this time, wife assisted husband
with running an in-home computer sales company, called Web Ideas International. 2 Web
Ideas sold U.S. computer equipment to buyers in Russia. The parties disputed wife’s
responsibilities at Web Ideas. It is undisputed that wife performed secretarial and
administrative tasks, such as “taking orders, answering customer questions, [and]
packaging the components and delivering them to FedEx for delivery.” Wife also provided
translation services to Web Ideas customers. Wife is bilingual in Russian and English, but
she is not a certified interpreter or translator, nor is she qualified to interpret or translate in
any particular field.
2 After wife petitioned to dissolve the marriage, the parties abandoned the business.
4 After hearing conflicting testimony on the extent of wife’s involvement in Web
Ideas, the district court found that husband overstated wife’s involvement and wife
understated her contribution to the business. In addition to secretarial and administrative
tasks, the district court determined that wife was involved in day-to-day correspondence
with customers. But the district court also found that wife did not have the expertise to
develop the business’s software or handle complicated customer questions. The district
court specifically credited wife’s testimony that “there were parts of the business [that wife]
had no answers to.”
In 2013, wife reentered the workforce outside of the home. Wife held a series of
part-time hourly jobs until October 2013 when she obtained full-time employment as a
sales consultant earning $1,950 per month but was later terminated. In November 2014,
wife obtained new full-time employment as a call center representative earning $13 per
hour where she remained employed during trial.
The parties submitted conflicting versions of wife’s resume. The district court found
that husband’s version contained inaccuracies and inflated wife’s educational and work
history. 3 Each party also submitted a vocational report assessing wife’s potential earning
capacity. Wife’s report was prepared by Greta Bormann, who concluded that wife was
3 In particular, the district court determined that husband’s version states that: (a) wife worked as an accountant in Russia, but she was “an economist whose duties involved future spending”; (b) wife worked as a real estate secretary, but she was a receptionist at a real estate franchise; (c) wife was employed as an assistant research technologist at a medical research firm in Pennsylvania, but she was a customer service representative; (d) wife was a personal banker in Pennsylvania, but wife testified that she was a bank teller; and (e) wife worked at Web Ideas as a bookkeeper, but husband admitted in his testimony that he helped wife prepare the business’s tax returns.
5 qualified for entry-level positions earning between $14 and $15 per hour. Bormann opined
that wife is not qualified for a career in the economics field because she does not have the
necessary work experience, education, or advanced knowledge in accounting systems and
Microsoft Office. Bormann suggested that wife could improve her earning capacity by
taking additional courses.
Husband originally hired Bormann, but before Bormann produced her written
report, husband told her that he would not accept her report or compensate her. Over
husband’s objection, wife obtained a district court order allowing her to pay for Bormann’s
report and offer it at trial. The district court found husband’s testimony “evasive” when he
was asked at trial whether he knew Bormann’s opinions before deciding that he would not
accept her report.
Husband’s vocational analyst was Mark Raderstorf, who concluded that wife is
qualified to work as an interpreter/translator or customer service representative. According
to Raderstorf, interpreters earn between $11.39 and $28.79 per hour, and customer service
representatives earn between $10.99 and $25.84 per hour. Raderstorf concluded that wife
could earn $20 per hour as an interpreter and $17 per hour as a customer service
representative. Raderstorf recommended that wife take computer courses and use her
language skills more often in the workplace.
The district court found Raderstorf’s vocational assessment unreliable because it
was based on inaccurate information. 4 Additionally, the district court determined that
4 The district court identified the following inaccuracies in Raderstorf’s report: (1) he relied on husband’s version of wife’s resume; (2) he stated that wife had a Pennsylvania Realtor
6 Raderstorf overstated wife’s ability to earn $20 per hour as an interpreter because she is
not a certified interpreter and Raderstorf failed to take into account other variables, such as
the demand for interpreters. The district court found it “significant” that when wife worked
outside of the home during the marriage, her jobs were entry-level positions.
Reasonable Living Expenses
Husband and wife agreed in their testimony that they cannot sustain their standard
of living after the divorce and will need to cut back on expenses because there is insufficient
income to meet each party’s expected expenses. Each party submitted a proposed budget.
Husband estimated that his monthly living expenses were $6,476, which included $2,774
for housing expenses. Husband testified that, after selling the family home, he intended to
rent an apartment, which he expected would decrease his monthly housing expenses by
$500.
Wife estimated that her monthly living expenses were $6,762. Although wife did
not have a mortgage at the time of trial, she included $2,546 in her proposed budget for a
monthly mortgage payment. Wife testified that she would like to move out of the
condominium because it is not large enough for her and her teenage son. 5 Wife testified
Certificate, but wife only completed a real estate course and did not have a real estate license; (3) he stated that wife was an accountant in Russia, but she was an economist; and (4) he stated that wife “has found success in her current position,” but wife had been terminated when Raderstorf completed his assessment. 5 The parties stipulated to a statement from a realtor who was helping wife find a home. The stipulation states that wife will not qualify for a mortgage until after she begins receiving spousal maintenance.
7 that, on nights when her son stays with her, she sleeps on the couch and her son sleeps in
the bedroom.
At trial, husband submitted a report from a private investigator who reported that,
on three nights in January and February 2014, wife did not sleep at her condominium. From
this, husband argued that wife was cohabiting. Wife, however, testified that she spends
most nights at the condominium.
Temporary Maintenance Award
On March 30, 2015, the district court entered its findings of fact and conclusions of
law in the dissolution decree. Relevant to this appeal, the district court determined that wife
was entitled to spousal maintenance because she “lacks sufficient property and earning
capacity to provide [for] her adequate self-support, after considering the standard of living
established during the marriage” and awarded wife $2,400 in temporary monthly spousal
maintenance.
The district court’s maintenance determination was based on its income and expense
findings. The district court found that husband’s gross monthly income is $9,333 based on
his gross annual salary of $112,000. The district court concluded that wife was
underemployed when earning $13 per hour, and imputed income to wife in the amount of
$17.64 per hour, which equals $3,058 gross monthly income. 6 Applying a 22% tax
6 Wife’s imputed income is at the low end of Raderstorf’s interpreter salary range, which the district court found was appropriate because wife is not a certified interpreter and has no expertise interpreting in a particular industry. The imputed income is in the midrange of Raderstorf’s customer service representative salary range, which the district court found is consistent with wife’s current and past work experience. The district court also determined that wife could increase her earning capacity by becoming a certified
8 deduction rate, the district court determined that wife’s imputed net monthly income is
$2,385.
Regarding expenses, the district court determined that, although wife did not have
a mortgage, her “move into the parties’ condominium [was not] a determination on her part
that she will permanently live in a condominium.” Thus, the district court determined that
it was reasonable to include a mortgage payment in wife’s budget. Noting that each party’s
proposed budgets were similar to the other, the district court equalized the parties’ monthly
budgets at $5,905.
Using its income and expense findings, the district court compiled tables calculating
the parties’ after-tax incomes available to meet their reasonable needs. In the tables, the
district court incorporated the monthly spousal maintenance and child-support payments
into the parties’ gross monthly incomes and reduced gross income by the parties’ estimated
tax liability. In calculating the parties’ estimated tax liability, the district court used the tax
information provided by husband in the exhibits he submitted to the district court.
Based on the cash flow analysis in the tables, the district court concluded that there
is insufficient income to meet the reasonable needs of both parties. Thus, the district court
noted that the parties will have to “share the pain” in reducing their expenses and adjusting
their standards of living. The district court concluded that husband could afford to pay wife
$2,400 in monthly maintenance to help wife meet her needs while still being able to meet
his own needs. The decree stated that the maintenance award would terminate upon the
interpreter, but such an increase in earnings would still be insufficient for wife to meet her needs independently.
9 minor child turning age 18, “or [continue] as long as the minor child is still attending
secondary school and is under the age of 20 whichever is later.”
Amended Permanent Maintenance Award
Both parties moved for amended findings or a new trial. Each party raised several
arguments. Relevant to this appeal, wife requested that the temporary spousal maintenance
award be amended to a permanent award because Minn. Stat. § 518.552, subd. 3, requires
a permanent award if there is any uncertainty of the need for permanent maintenance.
At the hearing, the district court orally granted wife’s motion for permanent spousal
maintenance, explaining: “I do believe that the duration of the maintenance is a mistake on
my part, I think there is a defect. I’m not sure what my thinking was when I included that
language where it would end when your child reaches the age of majority.” The district
court stated that it had reviewed wife’s budget and determined that, even after the child
leaves the home and wife stops receiving child-support payments from husband, wife will
be unable to meet her needs independently. Accordingly, the district court concluded that
wife’s ability to meet her needs “is speculative.” The district court added that “the two of
you can take a look at it at the situation there and it may be that there is no need for
maintenance at that time. But I need [to] err on the side of permanent maintenance.”
The district court’s order amended the decree and clarified that its findings of fact
predicting wife’s ability to meet her future needs were “speculative, at best.” The district
court explained that it had erred in awarding temporary maintenance because section
518.552, subdivision 3, mandates a permanent maintenance award if there is uncertainty
as to the necessity of a permanent award.
10 The parties filed new motions for amended findings or a new trial, raising several
arguments. Relevant to this appeal, husband requested that the district court reinstate the
temporary spousal maintenance award. After a hearing, the district court denied husband’s
motion for temporary maintenance on November 23, 2015. Husband’s appeal follows.
DECISION
We review a district court’s spousal-maintenance award for an abuse of discretion.
Erlandson v. Erlandson, 318 N.W.2d 36, 38 (Minn. 1982). A district court abuses its
discretion “by making findings unsupported by the evidence or by improperly applying the
law.” Dobrin v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn. 1997) (quotation omitted). We
apply “a clearly erroneous standard of review to a district court’s findings of fact
concerning spousal maintenance.” Maiers v. Maiers, 775 N.W.2d 666, 668 (Minn. App.
2009). “Findings of fact are clearly erroneous where an appellate court is left with the
definite and firm conviction that a mistake has been made.” Goldman v. Greenwood, 748
N.W.2d 279, 284 (Minn. 2008) (quotation omitted). In reviewing the record under the
clearly-erroneous standard, this court views 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).
We defer to the district court’s credibility determinations Sefkow v. Sefkow, 427 N.W.2d
203, 210 (Minn. 1988).
I. Income Calculation
“A district court’s determination of income for maintenance purposes is a finding
of fact and is not set aside unless clearly erroneous.” Peterka v. Peterka, 675 N.W.2d 353,
357 (Minn. App. 2004). This court reviews the district court’s consideration of the parties’
11 tax liability in calculating income for an abuse of discretion. Maurer v. Maurer, 623
N.W.2d 604, 608 (Minn. 2001). But if a district court bases its award on the maintenance-
seeking spouse’s reallocation of assets to create income, it must consider the tax
consequences of the award. Curtis v. Curtis, 887 N.W.2d 249, 255–56 (Minn. 2016). The
district court does not abuse its discretion in considering tax liability if it had “a reasonable
and supportable basis for making an informed judgment as to [the] probable liability.” Id.
(alteration in original) (quotation omitted).
In challenging the district court’s income calculations, husband argues first that the
gross income imputed to wife does not reflect wife’s full potential earning capacity because
“with a little effort, wife can certainly make more money than what the trial court imputed
to her.” As support, husband overstates wife’s involvement in Web Ideas, quoting his own
testimony that wife was the “principal operating person” of the company. But the district
court found that wife’s assistance with the business was limited to “day-to-day
correspondence [and] communication with customers.” The district court also specifically
credited wife’s testimony that there were questions about the business that she could not
answer without husband’s help. We will not disturb the district court’s credibility
determinations on appeal. Sefkow, 427 N.W.2d at 210.
Husband also asserts that wife’s imputed income should rely on Raderstorf’s
vocational assessment, which concluded that wife could earn more than $17.64 per hour.
But the district court found that Raderstorf’s assessment of wife was based on inaccurate
information provided by husband. The district court’s detailed findings on the appropriate
12 amount of income to impute to wife are supported by the record, and we will not usurp the
district court’s role as factfinder. Dobrin, 569 N.W.2d at 202.
Second, husband contends that the district court improperly calculated the parties’
tax liability in making its income determinations. But the decree includes cash flow tables
that incorporate the spousal maintenance and child-support payments in the parties’ gross
incomes and deduct the parties’ expected tax liability from their gross incomes to calculate
after-tax income. Notably, the district court used the tax information provided by husband
in estimating the parties’ tax liability. 7
Third, husband argues that the district court erred by not calculating the parties’ net
income. See Minn. Stat. § 518.552, subd. 2(g) (2016) (requiring the district court to
consider the payor spouse’s ability to meet needs while meeting the recipient spouse’s
needs); Kostelnik v. Kostelnik, 367 N.W.2d 665, 670 (Minn. App. 1985) (“In order to
determine ability to pay, the [district] court must make a determination of the payor
spouse’s net or take-home pay.”), review denied (Minn. July 26, 1985). Husband’s
argument is without merit because the district court calculated the parties’ net incomes in
the cash flow tables by reducing their gross incomes by their expected tax liability.
7 Husband claims that the district court “ignored its own admonishment that it would not speculate by employing imprecise estimates.” During trial, the district court stated that it would consider leaving the record open so that the parties could submit additional tax information. But in the decree, the district court declined to hold the record open for additional tax information because “there is sufficient information about the tax consequences and cash flow,” and any imprecision in its tax calculations “would be so insignificant that it would not impact [] the final decision.” The district court did not abuse its discretion because it was not required to hold the record open for additional tax information.
13 Additionally, the district court expressly found that wife’s net imputed monthly income is
$2,385. The district court did not clearly err in calculating the parties’ incomes.
II. Expense Calculation
The district court’s calculation of a party’s reasonable expenses “must be upheld
unless clearly erroneous.” McCulloch v. McCulloch, 435 N.W.2d 564, 566 (Minn. App.
1989). This court must remand to the district court if it does not make specific findings of
the parties’ reasonable expenses. Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).
After considering each party’s proposed budget, the standard of living maintained
during the marriage, and the uncertainty surrounding the parties’ future housing expenses,
the district court assigned $5,905 to each party’s monthly budget. The district court
calculated this number by giving each party a monthly housing budget of $2,274, which is
$500 less than the amount husband spent on housing expenses while living in the family
home. The district court calculated the housing budget based on husband’s testimony that
his housing expenses would be $500 less after selling the family home. Based on this
housing budget, wife’s total monthly budget was reduced from $6,762 to $5,905.
The district court explained its reasoning for equalizing the parties’ budgets:
The Court is aware and reminds the parties that predicting budgets is not a precise exercise, especially when so much of the proposed budgets will be determined by future decisions where and how each party will live. Indeed, since this case is one where there is not sufficient income to meet all of the reasonable needs of each party given their standard of living during the marriage, less focus on each line item in the budget is warranted. By clarifying what the monthly budget should be, the parties will be able to make individual decisions in their own lives.
14 In challenging the district court’s expense calculations, husband advances three
contentions. First, husband contends the district court failed to consider evidence of wife’s
cohabitation, which should have reduced her budget. 8 The district court expressly declined
to make findings regarding wife’s cohabitation, concluding that the evidence of
cohabitation was only “marginally relevant for issues involving [wife’s] budget and her
income capacity.” The district court nonetheless determined that, even if wife “spends a
significant amount of time with her significant other, [there is no] evidence [] this practice
will continue in the long term.” The district court’s decision not to consider wife’s
cohabitation in calculating her expenses was not clearly erroneous because husband’s
private investigator monitored wife for only three nights in early 2014 and there is no
evidence that any alleged cohabitation affected wife’s living expenses.
Second, husband argues that the district court erred by including $2,274 in wife’s
budget for a mortgage when she does not have a mortgage. The district court determined
that wife’s move into the condominium was not “a determination on her part that she will
permanently live” there because she was forced “to leave and make arrangements for a
temporary living situation” due to the “tremendous stress” when husband and wife lived
together in the family home. The parties stipulated to evidence from wife’s realtor that wife
8 In 2016, the legislature enacted Minn. Stat. § 518.552, subd. 6 (2016), which provides four factors for determining whether a maintenance recipient’s cohabitation with another adult warrants maintenance modification. We note that subdivision 6 only applies to maintenance modification motions, not to the original award. Additionally, because the new statutory provision did not go into effect until August 1, 2016, neither the parties nor the district court considered the four cohabitation factors. 2016 Minn. Laws ch. 132, § 1, at 1. Accordingly, we do not address subdivision 6.
15 was searching for a home and would be unable to obtain a mortgage until husband began
paying spousal maintenance. Wife also testified that she intended to purchase a home and
move out of the condominium after trial because it was too small for her and their teenage
son to live in. Additionally, the district court noted that wife’s 400-square foot, one-
bedroom condominium does not reflect the standard of living during the marriage.
For the first time on appeal, husband asserts that county records show that the
condominium is 668 square feet, which is 67% larger than the size stated in the district
court record. Husband also claims that county records show that wife continues to live in
the condominium and she has recently homesteaded the condominium. Husband requests
that this court take judicial notice of these county records. “A court shall take judicial notice
if requested by a party and supplied with the necessary information.” Minn. R. Evid.
201(d). Appellate courts may take judicial notice of public records even if they were not
presented in the district court because appellate courts “have the inherent power to look
beyond the record where the orderly administration of justice commends it.” Eagan Econ.
Dev. Auth. v. U-Haul Co. of Minn., 787 N.W.2d 523, 530 (Minn. 2010) (quotation omitted);
see also Minn. R. Evid. 201(c) (“A court may take judicial notice, whether requested or
not.”).
We decline husband’s request to take judicial notice of the county records for two
reasons. First, husband did not argue the size of the condominium in the district court and
we do not consider issues raised for the first time on appeal. Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988). Second, our task in reviewing the district court’s findings under a
clearly erroneous standard of review is to determine whether the record supports the
16 findings. Regardless of whether the condominium is 400 square-feet or 668 square-feet, it
pales in comparison to the standard of living during the marriage when the parties lived in
a 3,500 square-foot home. Accordingly, the orderly administration of justice does not
require that we take judicial notice of the county records, and we conclude that the district
court did not clearly err by including a mortgage payment in wife’s budget.
Third, husband argues that the district court erred by “arbitrarily” giving him the
same budget as wife and requiring the parties to “share the pain.” In deciding to equalize
the parties’ budgets, the district court explained:
Both parties argued to the Court that the Court should require that they share the pain. The Court agrees. The Court’s spousal maintenance award will help bridge a gap in [wife’s] budget, but she will still be short each month unless she further reduces her expense or invades her property settlement. [Husband] will be left with approximately the same amount of cash to meet his monthly living expenses as [wife]. Both parties have experienced, and will continue to experience, a reduced standard of living in the near future.
As support, husband cites Snyder v. Snyder, in which the supreme court noted that
“[t]he purpose of alimony is to care for the wife’s needs after divorce, not to provide her
with a lifetime profit-sharing plan.” 298 Minn. 43, 53, 212 N.W.2d 869, 875 (1973)
(quotation omitted). We conclude that Snyder is inapposite because it predates the current
version of the maintenance statute. Further, there is no indication that the district court
awarded maintenance in this case as a “lifetime profit-sharing plan.” The district court
carefully considered the current statutory factors for determining an appropriate
maintenance award, and found that wife was unable to meet her needs independently based
on her reasonable living expenses and earning capacity. The district court also determined
17 that husband has the ability to pay wife $2,400 in monthly maintenance while also
supporting his own needs. Thus, the maintenance award in this case is consistent with
Snyder’s instruction that “alimony is to care for the wife’s needs after divorce.” 9
Accordingly, the district court did not clearly err by assigning the same budget to each
spouse.
III. Permanent Spousal-Maintenance Award
“The maintenance order shall be in amounts and for periods of time, either
temporary or permanent, as the court deems just, without regard to marital misconduct, and
after considering all relevant factors,” including eight specified factors. Minn. Stat.
§ 518.552, subd. 2. “[T]he support to which a divorced party is entitled is not simply that
which will supply her with the bare necessities of life. Rather, the obligee can expect a sum
that will keep with the circumstances and living standards of the parties at the time of the
divorce.” Lee v. Lee, 775 N.W.2d 631, 642 (Minn. 2009) (quotations and citation omitted).
Minnesota law “leaves little room for the exercise of discretion where the need for
permanent maintenance is in question.” Bolitho v. Bolitho, 422 N.W.2d 29, 32 (Minn. App.
1988). “Where there is some uncertainty as to the necessity of a permanent award, the court
shall order a permanent award leaving its order open for later modification.” Minn. Stat.
§ 518.552, subd. 3 (emphasis added); Nardini v. Nardini, 414 N.W.2d 184, 197 n.10 (Minn.
9 Husband also cites an unpublished decision to support his argument. Unpublished decisions are not precedent. Minn. Stat. § 480A.08, subd. 3 (2016); Gen. Cas. Co. of Wis. v. Wozniak Travel, Inc., 762 N.W.2d 572, 582 n.2 (Minn. 2009). Also, this case is dissimilar to the unpublished decision because here, unlike in the unpublished decision, the district court analyzed all of the appropriate statutory factors in awarding maintenance.
18 1987) (“[T]emporary maintenance should not be favored over permanent awards”); see
also Minn. Stat. § 645.44, subd. 16 (2016) (“‘Shall’ is mandatory.”).
Husband does not dispute that wife is entitled to spousal maintenance. Rather, he
argues that the district court abused its discretion by amending the spousal-maintenance
award from temporary to permanent. The district court concluded that it should have
awarded permanent maintenance because its findings in the original decree showed that
wife’s ability to meet her needs in the future was speculative.
The district court’s findings of fact support its decision to amend the spousal-
maintenance award. In the decree, the district court determined that wife is unable to meet
her needs independently. The district court found that, based on wife’s imputed income
and reasonable living expenses, she would be $3,520 short each month if she did not
receive spousal maintenance. The district court also found that, even if wife increased her
earning capacity by obtaining additional training, she still would be unable to meet her
needs independently. Notably, the district court determined that wife’s earning capacity
has been “permanently diminished” due to her outdated education and skills and her lack
of seniority in the workplace as a result of leaving her prior jobs so that husband could
pursue his career.
Additionally, the decree expressly found that predicting wife’s ability to meet her
needs after the child turns 18 and moves out of the house is “speculative, at best.” Although
it is possible that wife will fully rehabilitate and be able to support herself in the future, the
district court did not abuse its discretion in awarding permanent maintenance because
Minnesota law mandates a permanent award when there is “some uncertainty” as to the
19 recipient spouse’s ability to support herself. Minn. Stat. § 518.552, subd. 3 (emphasis
added); see Musielewicz v. Musielewicz, 400 N.W.2d 100, 104 (Minn. App. 1987) (noting
that wife may be able to become self-supporting in the future, but “[a]s a matter of law,”
the district court was “required to make the maintenance award permanent”), review denied
(Minn. Mar. 25, 1987); Duffey v. Duffey, 416 N.W.2d 830, 833 (Minn. App. 1987) (holding
that district court should have awarded permanent maintenance because “[a]lthough
appellant may be capable of securing employment, it is uncertain whether she can become
fully self-supporting.”), review denied (Minn. Feb. 24, 1988).
Husband nonetheless argues that the district court should have maintained the
temporary maintenance award because the burden is on wife to demonstrate her efforts to
rehabilitate. As support, husband cites three cases, none of which decided to overturn a
permanent maintenance award. For example, Nardini v. Nardini held that “[a]n award of
temporary maintenance is based on the assumption that the party receiving the award not
only should strive to obtain suitable employment and become self-supporting but that he
or she will attain that goal.” 414 N.W.2d 184, 198 (Minn. 1987). But Nardini was an appeal
of a district court’s temporary maintenance award, whereas this is an appeal of a permanent
maintenance award. Thus, there is no assumption that wife will attain the goal of becoming
self-sufficient in the future. Also, Nardini reversed the district court’s temporary award
because it found that permanent maintenance was appropriate. Id. at 197–99. Similarly, the
20 district court awarded permanent maintenance in this case because it was uncertain whether
wife could become self-sufficient in the future. 10
We note that the district court’s permanent maintenance award has the consequence
of placing the burden on husband to establish changed circumstances if he seeks to
terminate or reduce the award in the future. Minn. Stat. § 518A.39, subd. 2(a) (2016). But
it can be presumed that the legislature was aware of this circumstance when it enacted
Minn. Stat. § 518.552, subd. 3, favoring permanent awards over temporary awards when
the spouse’s ability to meet needs independently is uncertain. 11 See Goodyear Tire &
Rubber Co. v. Dynamic Air, Inc., 702 N.W.2d 237, 244 (Minn. 2004) (“In enacting statutes,
we presume that the legislature acts with full knowledge of existing law.”); Poehls v.
Poehls, 502 N.W.2d 217, 218 (Minn. App. 1993) (“A designation of ‘permanent
maintenance’ is a term of art which places the burden on the spouse obligor to demonstrate
that a maintenance award should be lessened or terminated due to changed
circumstances.”); see also Musielewicz, 400 N.W.2d at 104 (“[T]he trial court [was]
required to make the maintenance award permanent, leaving the burden with [the payor
spouse] to seek any future decrease or termination of maintenance justified by a substantial
10 Husband also relies on Dobrin, 569 N.W.2d 199, and Maiers, 775 N.W.2d 666, which we reject for the reasons discussed above. 11 Before and after Minn. Stat. § 518.552, subd. 3, was adopted, the statute allowing modification of spousal maintenance placed the burden of proof on the moving party. Section 518.552, subdivision 3, was enacted in 1985. 1985 Minn. Laws ch. 266, § 2, at 1187. At that time, the law placed the burden on the moving party to establish changed circumstances to modify a maintenance obligation. 1978 Minn. Laws ch. 772, § 59, at 1087; see also Abuzzahab v. Abuzzahab, 359 N.W.2d 329, 332 (Minn. App. 1984) (“[T]he moving party must demonstrate both a substantial change in income or needs and unfairness caused by that change.”).
21 change in the circumstances of either party.”). Accordingly, we conclude that the district
court did not abuse its discretion by awarding wife permanent spousal maintenance.
Affirmed.