Marriage of Neubauer v. Neubauer

433 N.W.2d 456, 1988 Minn. App. LEXIS 1274, 1988 WL 136721
CourtCourt of Appeals of Minnesota
DecidedDecember 27, 1988
DocketC7-88-1390
StatusPublished
Cited by8 cases

This text of 433 N.W.2d 456 (Marriage of Neubauer v. Neubauer) 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 Neubauer v. Neubauer, 433 N.W.2d 456, 1988 Minn. App. LEXIS 1274, 1988 WL 136721 (Mich. Ct. App. 1988).

Opinions

OPINION

HUSPENI, Judge.

Arguing that there was no substantial change in circumstances making the original award unfair, appellant, John Neu-bauer, appeals from a referee’s determination, and a trial court's affirmance, of an increase in his maintenance obligation. He also argues that the district court erred in distinguishing Kruschel v. Kruschel, 419 N.W.2d 119 (Minn.Ct.App.1988) from the instant case and that this error impermissi-bly made his pension available to satisfy his maintenance obligations. We affirm.

FACTS

The parties dissolved their twenty-year marriage on July 31, 1968. At that time, respondent had worked part time as a waitress for approximately six months. Appellant was a general foreman of a welding crew working for NSP. In the dissolution, respondent was awarded:

1. custody of the parties’ three minor children plus child support of $25 per week per child;
2. the parties’ homestead, subject to the mortgage thereon, as housing herself and the minor children;
3. permanent spousal maintenance of $25 per week.

There was no reference to appellant’s pension in the judgment and decree dissolving the parties’ marriage.

Respondent continued to work part time after the dissolution. Presently, she works full time for a hotel as maid/cleaning woman. At age 59, she has limited hope of completing the additional service required for vesting her own pension.

The minor children are now emancipated and respondent has paid off the mortgage on her residence. Appellant’s heart condition prompted heart surgery in February of 1985. Upon discharge from the hospital, he was told that he could go back to work if he wished to do so but only he could make that decision because only he would know when he was becoming easily tired or suffering the chest pains associated with heart problems.

On December 4, 1986, appellant was served a notice of motion and motion to increase his spousal maintenance obligations for the period prior to his retirement from the original amount of $25 a week ($107.50 per month) to $450 per month. The motion also requested that maintenance after appellant’s retirement be based on “the percentage of the pension accrued during the course of the marriage * * * attributable to [respondent’s] interest.” On July 81, 1987, appellant, citing health reasons, took early retirement at age 62 even though it resulted in a significant decrease in his pension income.

In November 1987, a referee granted respondent’s motion for an increase in spousal maintenance to $100 per week ($430 per month). This conclusion was based on findings that at the time of dissolution, respondent had worked:

one-half (¾⅛) year, [and] earned $1,349.89 for a projected 1968 annual income of $2,699.78.

The referee also found that respondent’s present monthly net income was $627.48.

Regarding appellant's income, both parties agree that his 1968 income was about $11,400. Appellant’s present (post-retirement) “disposable income” was found to be $1,549 per month or about $18,588 per year. However, in finding appellant’s pre-retirement income for 1984, 1985, and 1986 to be $107,471, $40,543 and $61,077 respectively, the referee declared “[appellant] has experienced a material increase in his income as evinced by his gross income for [these years].”

At the time of the hearing, the referee found respondent’s monthly expenses of $1,048.68 to be reasonable. Regarding appellant’s expenses, the referee stated:

[459]*459[appellant] shares his expenses with his current spouse and alleges one-half (½) of those expenses to be $1,115.70.

In additional findings, the referee determined that the Federal Cost of Living Index has increased thirty-four percent in the last ten years, and that appellant’s retirement was “without malice.”

In February of 1988, this court decided Kruschel v. Kruschel, 419 N.W.2d 119 (Minn.Ct.App.1988). In March 1988, the district court reviewed and affirmed the referee. The district court also distinguished Kruschel from this case allowing consideration of appellant’s pension income in determining his maintenance obligation.

ISSUES

1. Did the trial court abuse its discretion in finding substantially changed circumstances justifying an increase in spousal maintenance?

2. Did the trial court abuse its discretion in increasing appellant’s maintenance obligation from $107.50 per month to $430.00 per month?

3. Should the trial court have considered appellant’s pension in determining his maintenance obligation?

ANALYSIS

I.

The referee specifically concluded that the 1968 award of spousal maintenance from appellant to respondent of $25.00 per week “is unreasonable and unfair.”

Appellant, arguing that respondent currently enjoys much better financial circumstances now than she did at the time of dissolution, maintains the order for modification must be reversed as clearly erroneous.

A maintenance obligation

may be modified upon a showing of one or more of the following: (1) substantially increased or decreased earnings of a party; (2) substantially increased or decreased need of a party; (3) receipt of assistance under sections 256.72 to 256.-87; or (4) a change in the cost-of-living for either party as measured by the federal bureau of statistics, any of which makes the terms unreasonable and unfair. On a motion for modification of maintenance, the court shall apply, in addition to all other relevant factors, the factors for an award of maintenance under section 518.552 that exist at the time of the motion.

Minn.Stat. § 518.64, subd. 2 (Supp.1987). In addition “[t]he burden of proof is on the movant,” Halvorson v. Halvorson, 402 N.W.2d 168, 171 (Minn.Ct.App.1987), to show “clear proof of facts showing * * * a substantial change of circumstances” and an appellate court should be “reluctant to interfere with an exercise of [the trial court’s] substantial discretion.” Wiese v. Wiese, 295 N.W.2d 371, 372 (Minn.1980).

Appellant argues that respondent’s yearly gross income has increased from $2,700 to $11,292. He also suggests that her expenses have decreased because she has paid off the mortgage on her residence and because the children are now emancipated. This, he argues, combined with the lesser increase in his income from $11,400 at the time of dissolution to $18,588 at the time of the hearing, demonstrates that there was no substantial change in the parties’ incomes and expenses to justify finding the original award unfair and unreasonable. We disagree.

Initially, we note that any decrease in respondent’s expenses resulting from emancipation of the parties’ children is balanced by the fact that respondent no longer receives child support for those children.

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Marriage of Neubauer v. Neubauer
433 N.W.2d 456 (Court of Appeals of Minnesota, 1988)

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Bluebook (online)
433 N.W.2d 456, 1988 Minn. App. LEXIS 1274, 1988 WL 136721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-neubauer-v-neubauer-minnctapp-1988.