Marriage of Hemmingsen v. Hemmingsen

767 N.W.2d 711, 2009 Minn. App. LEXIS 126, 2009 WL 1919344
CourtCourt of Appeals of Minnesota
DecidedJuly 7, 2009
DocketA08-1136
StatusPublished
Cited by19 cases

This text of 767 N.W.2d 711 (Marriage of Hemmingsen v. Hemmingsen) 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
Marriage of Hemmingsen v. Hemmingsen, 767 N.W.2d 711, 2009 Minn. App. LEXIS 126, 2009 WL 1919344 (Mich. Ct. App. 2009).

Opinions

OPINION

SCHELLHAS, Judge.

Appellant argues that the district court abused its discretion by (1) denying his motion to terminate his spousal-maintenance obligation, (2) denying his motion for amended findings, and (3) granting respondent need-based and conduct-based attorney fees. Because the district court did not make adequate findings to support its order regarding modification of spousal maintenance and attorney fees, we remand for additional findings. We therefore do not address the district court’s denial of appellant’s motion for amended findings.

FACTS

In 1966 appellant Daniel E. Hemming-sen and respondent Claudia J. Hemming-sen were married. They divorced in 1998, pursuant to a marital-termination agreement (MTA) that was incorporated in their dissolution judgment. In the MTA, the parties agreed that: (1) appellant, a realtor, had average annual taxable income from 1995 through 1997 of $45,723; (2) appellant’s monthly budget was $2,330; (3) respondent’s average annual gross income from 1995 through 1997 was $11,600; and (4) respondent’s monthly budget was $2,235. The parties did not stipulate to retirement age. Under the dissolution judgment, appellant must pay $1,000 per month in maintenance to respondent “until terminated” and “maintenance payments shall terminate when [respondent] dies or remarries, whichever event occurs first.”

In 1999 appellant married realtor Becky Amato. They initially kept their businesses separate but began to work as a real-estate team as the real-estate market slowed down. Later, according to appellant, “[a]s the market continued to decline and in a further effort to keep [their] expenses down and stay in business,” appellant “went to work as [Amato’s] real estate assistant.”

In July 2005 appellant moved the district court to modify or terminate maintenance. Having reached age 62, appellant claimed that he had retired but acknowledged that he continued to work as Amato’s assistant for payment of $1,000 per month. Respondent [715]*715challenged the genuineness of appellant’s retirement and income reduction, noting that he had increased his monthly living expenses before his purported retirement. The district court denied appellant’s motion and awarded respondent $500 in attorney fees without indicating whether they were need-based, conduct-based, or both. The district court found “unpersuasive [appellant’s] assertion that he has ‘retired’ as a realtor and, as a consequence ... experienced a substantial change in financial circumstances that would warrant being relieved of the permanent maintenance obligation.” The court also found that appellant “self-limited his income in an effort to avoid his on-going spousal maintenance obligation and has attempted to cleverly understate his income,” and that “there is nothing in the record to reflect that [appellant] suffers from any physical or emotional difficulties that would prevent him from continuing to maintain an active real estate practice despite the fact that he has recently turned 62 1/2 years old.”

In October 2007 appellant moved the district court to terminate maintenance, effective July 10, 2007, the date on which he turned 65. He claims that his income continued to decline following his 2005 motion to modify maintenance. Based on the record before the district court, in 2005 appellant and Amato reported joint net business income of $70,886, of which appellant attributed one-half to himself. In 2006 appellant and Amato joined a new real-estate company and separated their businesses. In 2006 appellant’s gross business income was $35,964, Amato’s gross business income was $102,172, and appellant and Amato reported joint net business income of $47,767. Appellant claims that from January to July 2007, he received less than $5,000 in real-estate commissions and that “due to the depressed market,” he fully retired from real estate on his 65th birthday. Appellant did not allege that he was subject to mandatory retirement as a realtor.

The day after his 65th birthday, appellant accepted a part-time independent contractor position with Wind Energy Developers, Inc., where appellant earns $25 per hour, receives a $70 bonus for each wind-option agreement he procures, and reimbursement of his expenses. Appellant informed the district court that from July 11, 2007 until September 27, 2007, he earned just over $5,000. He did not provide a breakdown of the $5,000 between hourly wages and bonuses, and he has not provided an estimate of his anticipated annual earnings as a part-time independent contractor. Appellant explains that he and Amato have supplemented their income by withdrawing $20,000 in 2006 and $7,500 in 2007 from appellant’s IRA, leaving it depleted. He claims that his living expenses have increased, necessitating that he and Amato obtain a home-equity loan to cover their monthly expenses of $5,046, which he does not apportion between them.

In opposing appellant’s motion to terminate maintenance, respondent argued that appellant chose to retire from real estate early to reduce his income; that he has gross income of $40,024, combining his social security with his earned income from his part-time independent-contractor work; and that any reduction in income does not constitute a substantial change in circumstances from the income he earned at the time of the dissolution. Respondent detailed her own expenses and argued that they exceed her spousal maintenance combined with her own resources. Respondent sought attorney fees from appellant, based on need and appellant’s conduct. Appellant responded by disputing that he chose to retire early; he stated, “I did not [716]*716retire early; I changed jobs into a new field, even at the age of 65. Many real estate agents are getting out of the business, as are home builders, lenders, and all facets of people related to the housing market.”

The district court denied appellant’s motion, finding that appellant: (1) retired from the real-estate business on his 65th birthday; (2) received $1,184.50 per month in social-security payments after paying a $93.50 Medicare premium; (3) worked as an independent contractor and his “actual income from this business cannot yet be established with any certainty”; and (4) claimed that “his retirement was prompted by a downturn in the real estate market, but is unable to meaningfully corroborate that claim.” The court also determined appellant’s share of reasonable monthly expenses to be approximately $2,400 and found that appellant has “the reasonable ability to continue to pay the spousal maintenance he agreed to pay in the marital termination agreement.” The court awarded respondent need-based attorney fees in the amount of $500. In its conclusions of law, the court noted that “[i]f the obligee raises a colorable claim of bad faith, an obligor must show by a preponderance of the evidence that the change of circumstances was not primarily influenced by a specific intent to decrease or terminate maintenance” and stated that “[appellant] has failed to meet his burden of proof.”

Appellant moved for amended findings, and respondent sought additional attorney fees. The district court denied appellant’s motion and granted respondent an additional $1,000 in need-based attorney fees. This appeal follows.

ISSUES

I.Did the district court err by considering respondent’s claim that appellant retired in bad faith at age 65?

II.

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Marriage of Hemmingsen v. Hemmingsen
767 N.W.2d 711 (Court of Appeals of Minnesota, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
767 N.W.2d 711, 2009 Minn. App. LEXIS 126, 2009 WL 1919344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-hemmingsen-v-hemmingsen-minnctapp-2009.