Tag Archives: Modification of Spousal Maintenance

Spousal Maintenance Extended Because Karon Waiver Was Ineffective without Specific Provisions in the Decree and Judgment

Spousal Maintenance Extended Because Karon Waiver Was Ineffective without Specific Provisions in the Decree and Judgment

In Hietpas v. Reed, A14-0105 (Minn. Ct. App. Dec. 8, 2014), the Minnesota Court of Appeals upheld a district court order modifying spousal maintenance because the judgment and decree did not have a proper Karon waiver. The parties had divorced in May 2008, and the agreement provided for spousal maintenance of $3,650 until Dec. 31, 2012, when maintenance was to end.   The agreement recited that the wife waived future maintenance after Dec. 31, 2012 based on a Karon waiver, the length of the marriage, and her ability to earn sufficient income to support herself and the minor children.

Requirements of a Karon Waiver

Because the courts have no jurisdiction to modify spousal maintenance when the parties execute a Karon waiver, the court first held that the decree did not include a proper Karon waiver.   There are four requirements for a valid Karon waiver:

  1. The stipulation includes a contractual waiver of the parties’ right to modify spousal maintenance.
  2. The stipulation expressly provides that the district court has been divested of jurisdiction over maintenance.
  3. The stipulation is incorporated into the final judgment and decree.
  4. The court has specifically found “that the stipulation is fair and equitable, is supported by consideration described in the findings, and that full disclosure of each party’s financial circumstances has occurred.”

The first two requirements, the contractual waiver and express language regarding jurisdiction, are required to divest the court of jurisdiction. In this case, there was no dispute that the judgment and decree included the contractual waiver; the problem was the absence of specific language in the decree stating that the court was divested of jurisdiction over future motions. Although the hearing on the agreement included testimony by the wife that she understood that the court would not have jurisdiction to entertain a motion to continue maintenance, the judgment and decree did not contain specific language regarding divestiture of jurisdiction or language incorporating the stipulation in court. Further, there were no specific findings that the agreement was fair and equitable. The court held that referencing the Karon waiver in the agreement was not sufficient because the Karon waiver limits the court’s jurisdiction as well as the party’s ability to modify the support order.

The Minnesota Court of Appeals also held that, given the parties’ extended conflict, the court did not abuse its discretion or lose jurisdiction by waiving the requirement that the parties engage in mediation.

Modification of Spousal Maintenance

The Court of Appeals also held that the district court did not abuse its discretion in modifying spousal maintenance. The parties had stipulated at the time of the divorce that the wife would be capable of earning at least $50,000 annually by the time maintenance ceased. The wife was an attorney, and she earned $48,400 in 2012, including eight months of employment in a position that she lost due to insufficient workload, unemployment insurance, and short-term work. She had applied for many jobs and had registered with four employment search organizations. The district court found she did not have the ability to earn the amount contemplated in the judgment and decree because of her difficulty both in finding work and, more significantly, keeping a job. The district court included that her potential annual income at the time of the motion was $32,597.

The Court of Appeals held that the district court did not err in finding that the wife’s mental health problems affected her ability to earn income even though the wife had testified that she lost her high paying job because of a lack of work, not her performance or mental health problem. It concluded that her testimony did not mean that her mental health problems had not prevented her from meeting her job’s billable hours requirement or finding another similar high-paying job.

It found that the wife’s income was more than 20% less than the $50,000 that had been estimated at the time of the divorce, and that amount created a presumption of a substantial change of circumstances, leading to a rebuttable presumption that the existing maintenance award was unfair. It held that the five-year extension of additional maintenance was supported by the record. It held that the district court did not abuse its discretion by failing to consider evidence that the wife had recently been hired for a $52,000 job, as it was not evidence that she would be able to sustain employment, which was her particular problem.

The Court of Appeals held that the district court did abuse its discretion by prohibiting the husband from bringing a motion to modify spousal maintenance for twelve months, as there could be many reasons under Minnesota law, Minnesota Statute Section 518A.39 subd. 2, why a motion to modify spousal maintenance would be appropriate other than a change in the wife’s income, including a change in the husband’s income.

This case illustrates the importance of having good legal advice in crafting an order and judgment dissolving a marriage. If you need a divorce or are considering a motion to modify an order and judgment dissolving a marriage, you may find it useful to consult with an experienced family law attorney.

Change in Circumstances Needed to Modify Awards of Spousal Maintenance

Change in Circumstances Needed to Modify Awards of Spousal Maintenance

Under Minnesota law, Minn. Stat. 518A, Section 39, subd. 2., a court may order a modification in a spousal maintenance order if there has been a change in circumstances that makes the order now unreasonable. The court may do this because of any of the following:

  1. Increased or decreased gross income of the obligor or obligee;
  2. Substantially increased or decreased need of the obligor or obligee;
  3. Receipt of welfare benefits;
  4. Change in the cost of living, based on the Bureau of Labor Statistics;
  5. A child’s extraordinary medical costs;
  6. A change in the availability of health insurance coverage or a substantial increase in its cost;
  7. The addition or an increase or decrease in work-related or education-related child care expenses; or
  8. Emancipation of a child.

It is important to note that an ex-spouse’s refusal to obtain employment is not a change in circumstances that requires making a temporary award of spousal maintenance permanent.  

In Van Steenburgh v. Clyma, A13-1318 (Minn. Ct. App. Mar. 3, 2014), the Court of Appeals rejected an ex-spouse’s motion to make a temporary spousal award of $10,000 per month permanent. The court noted the dissolution court had determined that his reasonable monthly budget was substantially less at $7691.35.

The court also found that evidence showing that the ex-husband had refused to rehabilitate himself and find employment was sufficient to support the denial of the motion. An ex-spouse who receives temporary maintenance is required to make a good faith effort to rehabilitate and find employment. Here, an employment expert had opined that the ex-spouse could be earning a salary of $80,000 or more after three or five years of employment. Also, he had received $138,000 more than his expenses as temporary maintenance, and, with the assets that had been distributed following the divorce, he had the resources to support himself.

The evidence that he had not sufficiently tried to rehabilitate himself included: (1) a long time period when he did not apply for any jobs; (2) taking just one community college course during the period of temporary spousal support; (3) only focusing on a narrow set of jobs and refusing retraining and not considering employment opportunities outside his area of expertise.

An ex-spouse’s decrease in housing expenses, based on the sale of the former marital home and purchase of a less expensive home, is not a substantial change in circumstances that requires modification of a spousal maintenance order.

In Thomas v. Thomas, A13-905 (Minn. Ct. App. Mar. 3, 2014), the original divorce decree provided that the ex-husband, a self-employed dentist, would pay his ex-wife permanent spousal maintenance of $7,440 per month, which was to be lowered to $5,200 when the parties’ youngest child was emancipated. After the youngest child was emancipated in June 2012, the ex-wife sold the former marital residence (which had become her property) and relocated to a condominium in Florida.

After losing in the district court, the ex-husband appealed, arguing that the substantial decrease in housing expenses and increase in voluntary expenses, such as vacations and a car payment, made the spousal-maintenance agreement unfair because it made him support her in a lifestyle that was higher than the marital standard of living. The Minnesota Court of Appeals found his argument that the expenses did not reflect the marital standard of living lacked merit, as the parties lived very well on his income during the marriage, driving nice cars and taking vacations. Furthermore, the court emphasized that the parties had agreed on the permanent spousal maintenance obligation, and that agreement is given great weight in motions to modify maintenance. The court emphasized that the ex-husband receives a tax benefit from paying spousal-maintenance. Even though the wife was relatively young and cohabitating with a significant other, the court found that there was no change in circumstances that required modification of spousal maintenance.

If you believe that a change in spousal maintenance is needed, whether an increase or a decrease, you should consult Jeffrey R. Arrigoni Attorney at Law immediately.

Modifying Child Support and Spousal Maintenance, and Awarding Attorneys’ fees

Modifying Child Support and Spousal Maintenance, and Awarding Attorneys’ fees

The recent case of Ferris v. Szachowicz, #A12-2154, A13-0558 (Minn. Ct. App. Dec. 2, 2013) dealt with an ex-husband’s effort to reduce the amount of spousal maintenance and child support because his business, plastic surgery, allegedly suffered in the economic downturn. Because the statute provides for reducing spousal maintenance because of changed circumstances, he argued that the reduction in plastic surgeries, the recession, increasing tax arrearages, and business loan debt met the statutory criteria for changed circumstances.

The Court of Appeals began by noting that, on motions to modify child support, the court has broad discretion and its decision will only be reversed if it is against both the facts in the record and logic. Using this standard the court affirmed the district court’s decision. Finding it was supported by the record and the law. The court held that the district court acted within its discretion in calculating the husband’s income using a four-year average although the wife argued that including 2007 income was unreasonable. In this case, the husband had wanted to use a five-average and the wife preferred a three-year average, so the court’s decision to use a four-year average actually split the difference in the party’s position. The court noted that it would not include 2011 income because the data was incomplete. Although the wife argued that the income was on an upward trajectory, so included the year 2007 pulled the average down too far, the court held that the district within its discretion in choosing a time range for calculating an average when income fluctuates.

The court affirmed the district court’s decision denying the ex-husband’s first motion to modify spousal maintenance. Under Minnesota Statute 518 Section 39A, subd. 2 (2013), a party needs to show both a substantial change in circumstances and that the changed circumstances render the existing award both unreasonable and unfair. The court found the district court was within its discretion to find that the ex-husband failed to show a substantial change in circumstances because he did not produce loan documents to support his testimony about loan repayments.

The court then affirmed the district court’s decision granting the ex-husband’s second motion to modify spousal maintenance, finding the court made a correct decision despite procedural flaws. The court found that using a second motion to make the decision was an incorrect procedure because of the legal doctrine of res judicata. Nonetheless, the court found that the court could consider the evidence that should have been submitted with the first motion because rulings on support are not final decisions, and courts are required to respond to individual circumstances. The court emphasized that there had been substantial changes in the husband’s income from the time when the support order was first entered, so that the income was inadequate to support the parties’ lifestyle during marriage. The court also noted that the ex-wife was not working to her potential, in determining that continuing maintenance at the existing level was both unfair and unreasonable.

The court also upheld the district court’s denial of need-based attorney fees, provided in Minnesota Statute Section 518.14, subdivision 1 (2013). Although the court is required to consider the statutory factors, the lack of specific findings on each factor is not sufficient to reverse the decision as long as the decision indicates that the record included the parties’ finances and the court considered the relevant factors. The court noted that the district court had indeed made many findings on the parties’ finances, and had found that the wife had the ability to earn $42,500 annually, if she worked full-time.

The court also upheld the denial of attorney fees based on the husband’s conduct. Under the same fee provision, the court has discretion to award attorney’s fees on a party who unreasonably increases the length or expense of the proceeding. The court held that it was within the trial court’s discretion to consider the fact that the ex-wife’s refusal to agree to the appointment of “a neutral” in determining that her actions also increased the length or expense of the proceeding. Further, the ex-husband’s discovery requests related to the statutory grounds for modification, so they were not unreasonable.

Anyone who is considering moving for additional or reduced spousal maintenance should consult with an experienced family law attorney.

Civil Contempt for Failure to Pay Spousal Maintenance

Civil Contempt for Failure to Pay Spousal Maintenance

Under Minnesota law, Minnesota Statute 588.01, a person can be found in contempt of court for “disobedience of any lawful judgment, order, or process of court.” Thus, failure to comply with a court order of spousal maintenance can result in a finding of civil contempt. In order to find a party in contempt, the court must find (1) it has subject matter jurisdiction; (2) its decree defined the required acts clearly; (3) the party subject to the order had notice of the order and a reasonable time to come into compliance; (4) the other party had applied to the court to obtain compliance; (5) the party subject to the order had been given notice as well as an opportunity to present the court with reasons for not complying; (6) after a hearing, the party still did not comply with the order and confining the person would be reasonably likely to get the party to come into compliance; (7) the party subject to the contempt order had the ability to comply with the court’s order; and (8) the party subject to contempt order could obtain release by complying.

In Burtness v. Burtness, A12-1868 (Minn. Ct. App. Sept. 23, 2013), Minnesota Court of Appeals held that the district court acted within its discretion in refusing to modify an ex-husband’s spousal maintenance obligation and finding him in contempt for failing to comply with the order. Although the ex-husband argued that he did not have the ability to comply with the order to pay his ex-wife $5,000 a month, the court found that he did not prove that he lacked the ability to pay. The court noted that the ex-husband had the burden of proof to establish that he was unable to pay the maintenance. The court sad that adverse inferences may be drawn against a party who was not candid about financial matters. Thus, the court upheld the district court’s determination that the ex-husband was not credible, noting, among other things, that he did not file tax returns for at least nineteen years. The court found that there was sufficient evidence to show support the district court’s conclusion that the ex-husband was not credible.

The court also noted that, under Minnesota Statute 581A.39, the court will only modify spousal maintenance if there is a substantial change of circumstances, which results in making the maintenance award unreasonable or unfair. In Burness, the court noted that the ex-husband was self-employed at the time the original maintenance order had been entered, and he had received $2.3 million dollars while his ex-wife had a limited amount of personal property and permanent maintenance of $5,000 per month. Because he was self-employed, his income and assets were varied widely. The ex-husband’s failure to pay taxes for nineteen years made his financial records unreliable. The court also did not find the ex-husband’s claims of poverty credible, noting that his lifestyle was inconsistent with poverty, and he did not satisfactorily explain how he managed to pay his expenses.

Anyone who is the subject of a motion for contempt or a motion to modify spousal maintenance should consult an experienced family law attorney.

Minnesota Domestic Orders of Protection

Minnesota Domestic Orders of Protection

Under Minnesota law, Minnesota Statute Section 518B.01(7), the court may grant an ex parte order of protection, which means that the opposing party is not present in court when the court issues the order, if the application for the order of protection alleges an immediate and present danger of domestic abuse.   The Minnesota Court of Appeals requires sufficient evidence of immediate and present danger of domestic abuse by the respondent, the person against whom the order of protection is sought. Evidence of abuse by another person in the household is insufficient, and evidence of neglect is also insufficient.

In Hudson v. Hudson, No. A13-0283, (Minn. Ct. App. Aug. 26, 2013), the court held that it is insufficient to establish domestic abuse just by showing that domestic abuse occurred within a family or household; the court must find that the respondent committed domestic abuse. Thus, the district court’s finding that a mother allowed her boyfriend to be around her child was insufficient to prove domestic abuse. even though the child suffered a physical injury, namely a black eye. Nonetheless, the court found that there was only a history of allegations of domestic abuse, not a history of domestic abuse, just allowing her child to be around her boyfriend was not sufficient evidence of abuse by the mother.

In Chosa v. Tagliente, 693 N.W.2d 487 (Minn. Ct. of App. 2005), the Minnesota Court of Appeals held that the trial court’s finding of domestic abuse was clearly erroneous because there was insufficient evidence to support the issuance of an ex parte order of protection. The court found that there was no evidence that the mother had a present intent to inflict fear of imminent bodily harm. The court held that past abusive behavior is not dispositive although it may be a relevant factor in determining whether there is sufficient evidence for an order of protection. In this case, the evidence of the mother’s past abuse included: (a) leaving her one month old baby in a baby carrier in the checkout aisle unattended for a period of time; (b) washing her child’s bottom with a stream of water; (c) leaving her child in the house without notifying the child’s father that she was leaving; (d) failing to make sure the child had regular medical checkups; (e) breastfeeding her child after drinking alcohol or using marijuana; and (f) leaving the child in her baby carriage without supervision when she was drunk.

The court noted that there was no evidence that any of these incidents led to any actual physical harm, bodily injury, or assault. The court said that the only one of these incidents that could have constituted harm was washing the child’s bottom under a full stream of washer if the water had been hot, but, because there was no allegation that the water was hot, cleaning the child’s bottom in such a manner was not abuse.

The court held that the allegations, which amounted to inappropriate hygiene and inadequate medical care, leaving the child unattended, active chemical dependency while parenting the child, and even “an overall pattern of behavior endangering the physical wellbeing of the child,” might constitute evidence of neglect, but not evidence of domestic abuse.

Because an order of protection can have many implications, any individual who is the subject of an order of protection should consult an experienced family law attorney.

Modifying Spousal Maintenance and Child Support

In Engelhart v. Engelhart, #A12-1705 (Minn. Ct. App. June 3, 2013), the Minnesota Court of Appeals made clear that a party seeking a change in spousal maintenance or child support due to a substantial change in circumstances under 518A.39, 2012 Minnesota Statutes cannot rely on facts known to the parties at the time of the judgment. In this case, the parties had agreed to $4700 a month in spousal maintenance, knowing that two of the three minor children would become adults within two years. Thus the court held that the fact that the children would become adults was a change that the parties should have anticipated, so it could not be a factor in reducing permanent maintenance, given that the agreement did not indicate that the permanent maintenance was calculated based on the number of minor children in the household.

The court also held that there must be a substantial increase or decrease in the gross income or financial need of either ex-spouse to warrant a change in circumstances that would reduce the spousal maintenance. In this case, the court found the ex-husband’s reduction in income, from $11,000 to $ 10,333, a total of $667 or 6%, was not a sufficient decrease to warrant a reduction in child support. .

The court also rejected the ex-husband’s argument that his ex-wife was underemployed. The wife had earned $2,043 monthly as a school teacher at the time of the divorce, but was only earning $1,262, a decrease of $781, at the time of the motion. She had begun working as a substitute teacher. The court noted that his ex-wife had applied for positions, presumable full-time teaching positions, that she was qualified for, but she did not receive any offers of higher paying jobs. The ex-wife thus was able to prevail on this point because she had a record of seeking employment for a higher wage even though she was unsuccessful.

The court also held that the district court did not abuse its discretion by denying the motion for child support. The parties shared legal and physical custody of their minor child and shared parenting time equally. The original judgment reserved child support, and had provided the each party would be responsible for the children for the time that they were in their custody. The court held that, because the motion was to modify child support rather than to establish child support, the court was not required to make specific findings applicable to calculating child support.

Finally, the court also upheld the district court’s order granting the ex-wife’s motion to require the ex-husband to pay one-half of their child’s private school tuition. Although the expense was not party of the parties’ standard of living during the marriage, as the children went to public school at that time, the court found that the expense was reasonable. The court noted that the child had “struggled academically” at the public school and was now successful at the private school.

Significantly, the ex-wife only moved to obtain payment for the private school tuition after her ex-husband moved for downward modification of the spousal maintenance and for an order of child support. Thus, in making a motion to change spousal maintenance and child support, a party should consider possible counter-moves by the ex-spouse.

If you think that there have been any substantial changes in income or expenses that would warrant a change in spousal maintenance or child support, you should consult an experienced divorce attorney.

Recognition of Parentage and Petitions for Visitation for Grandparents and Other Third Parents

Minnesota law, Minnesota Statute Section 257C.08, provides that grandparents, great-grandparents, and other third parties can petition for visitation rights to see unmarried minor children under certain specific circumstances, including when a parent has died and when a child has resided with the grandparents or great-grandparents for twelve months or more. In addition, the statute provides that the court can grant reasonable visitation rights to grandparents if family court proceedings regarding dissolution, custody, or parentage have been brought, either during the proceedings or after the proceedings have been completed.

In Christianson v. Henke, 11-1319 (Minn. Ct. App. Mar. 19, 2012), the Minnesota Court of Appeals held that a proceeding for parentage includes the filing of recognition of parentage pursuant to Minnesota Statute Section 257.75. Under that statute, when a child is born to a mother was not married to any man at the time the child was conceived or when the child was born, the mother and father of the child can both sign a writing before a notary public acknowledging that “they are the biological parents of the child and wish to be recognized as the biological parents” of the child. The parents must file the writing with the state registrar of vital statistics. The recognition of paternity may be revoked in writing signed by the same parties as the initial recognition filing within the earlier of (a) sixty days of the date that the recognition was executed or (b) the date of an administrative or judicial hearing regarding the child.

A husband at the time of conception or birth is presumed to be the father of the child. However, the statute does provide that a husband can join in a recognition of parentage filing and recognize that he is not the biological father of the child and, instead, another man is the biological father of his wife’s child.

In Christiansen, the court held that the recognition of parentage executed under 257.75 constituted “a proceeding for parentage for purposes of petitioning for grandparent visitation rights” and, therefore, gave the district court subject-matter jurisdiction over the grandparent’s petition for visitation rights. The district court had given the paternal grandmother visitation rights with the grandchild. In that case, the parents had executed the recognition of parentage form on the day the child was born. The paternal grandmother lived next door to the mother and father of the child and spent a significant amount of time with the grandchild until an incident which led the parents to prohibit the paternal grandmother and her husband from having contact with the child.

The child’s parents argued that the recognition of parentage filing did not involve litigation and, therefore, was not a proceeding. The Court of Appeals rejected that argument, holding that the recognition of parentage filing established a legal procedure for establishing parenthood. The recognition of parentage filing has the same force and effect as any judgment determining parentage.

In Christianson, the court also held that a step-grandparent of a child could not bring a petition for visitation, as only biological or adoptive grandparents may petition forr visitation.