Tag Archives: Spousal Maintenance

Court Reverses Trial Court Permanent Spousal Maintenance Award And Directs Rehabilitative Maintenance and Also Directs Smaller Monthly Sum

In Spolum v. D’Amato, A14-1335, A14-1720 (Minn. App. August 17, 2015)  the Court of Appeals reversed a Ramsey County  trial court decision awarding Permanent Spousal Maintenance and remanded to the trial court to recalculate Spolum’s  monthly expenses, D’Amato’s income, and to reduce the monthly maintenance award of $14,072 and further held only Rehabilitative Spousal Maintenance was appropriate.

D’Amato, an orthopedic surgeon, and Spolum, a flight attendant, were married in 2001 and had one son, born in 2003. The parties separated in July 2010.  A legal separation action was started and then the parties attempted reconciliation but continued to live separately. A divorce trial began in August 2013. At that time, Spolum was age 49 and D’Amato was age 45.

To plan for the wedding, Spolum took a leave of absence as a flight attendant and extended it after the 911 attack and returned to work 5 years later. She quit in 2006 because her commute was stressful. She is high school educated with some college and art school classes.

Spolum worked at a clothing boutique and as a yoga instructor. When the parties reconciled she opened a chocolate shop, but the business failed. Trial evidence reflected she was “brilliant and creative”.  She was interested in animal-welfare and was on the board of directors for an animal-welfare organization. Spolum desired to establish a career as an animal welfare advocate. A vocational rehabilitation evaluation was completed concluding without additional training she could work in a position earning between $10-$12 an hour, but could attend a two year vocational program.

During the marriage D’Amato was let go in a physician practice. He applied to Health Partners. He was initially rejected, but Spolum testified she invited the head of HealthPartners to their home to advocate for reconsideration and D’Amato was then hired.  D’Amato also began a second job as an independent medical-legal consultant, working approximately 20 hours a week. Near the end of 2011 D’Amato quit the second job as it was time-consuming and stressful causing him anxiety and to be unhealthy. He testified he was already working 50 hours a week at HealthPartners.

D’Amato testified his earning in 2013 would be $800,000 and that he was seeing fewer patients as they were being diverted to other doctors. The Director of HealthPartners testified there has been a decrease in patient volume and surgeries. D’Amato’s income has been decreasing since 2011 and he predicted this trend would continue. He could earn additional income based on his production, but patients were decreasing. D’Amato testified he projected his salary in 2014 to be $750,000. D’Amato proposed the court use his 2013 income of $800,000 and that he pay spousal maintenance for 4 years to allow Spolum to acquire employment and training.

In the Judgment the trial court set D’Amato’s income at $950,538 using a 3 year average and despite finding he had quit his second job to create a more balanced life. The  judge stated that in the event the court overestimated his income D’Amato was in a better position to correct the error by pursuing additional options.

The trial court found Spolum’s discretionary spending at $9,943 per month and then modified that to $8,383 based on D’Amato’s claim this was even higher than she requested. In the original decision the court ordered $18,225 per month in spousal maintenance which was subsequently amended to $14,072 after post-trial motions. Apparently the trial court made findings concerning Spolum’s earning capacity and ability to re-enter the job market, but ignored those facts in making it a permanent maintenance award. The court found she was in good physical and emotional health and found no reason why she could not pursue a successful career because she was healthy, intelligent, articulate, creative, and capable.

The court found permanent spousal maintenance was appropriate based on: (1) the high marital standard of living, (2) the length of the marriage, (3) Spolum will never be able to support herself in the manner close to the marital standard of living, and (4) the fact D’Amato’s income would not decrease. Spolum was awarded $1.2 million dollars in assets, including the Caribbean home “Seacliff” which D’Amato requested be sold and artwork of $110,000, but found the assets were not available until retirement.

The court of appeals reversed the amount and duration of the award and stated Permanent Spousal Maintenance was not warranted and that the award should be Rehabilitative. The court explained a court may award spousal maintenance (1) if a spouse lacks sufficient property, including allocated property to provide for reasonable needs considering the standard of living, or (2) is unable to provide self-support through appropriate employment, in light of the standard of living. Minn Stat. 518.552, subd.1.  In determining an award the court should evaluate (1) the financial resources of the requesting party, including marital property awarded to the party, and the party’s ability to meet needs independently, (2) time necessary to become self-supporting, (3) marital standard of living, (4) duration of marriage, (5) loss of employment benefits and opportunities foregone by requesting party, (6) age, physical condition, and emotional condition of the requesting party, (7) ability of the obligor to meet the needs of both parties, and (8) contribution of each party in the acquisition, preservation, and depreciation of marital property. Minn. Stat. 518.552, subd. 2.

The court stated the trial court put an overriding emphasis on the standard of living, which was merely one factor to be considered. The court did not agree the assets awarded to Spolum were not available until retirement. The court held the evidence and findings support an award of rehabilitative maintenance, not permanent spousal maintenance. The court noted the standard of living was over emphasized because Spolum also testified the standard of living was excessive and unnecessary and was a mistake and was based on D’Amato previously working two jobs and that it was unfair to consider a lifestyle based on income from a prior second job that contributed an average of additional income of $200,00 per year. The court also stated the parties had only lived together as husband and wife for 9 years. It noted prior to the marriage Spolum made $46,000 annually as a flight attendant. The court stated the evidence only supported a rehabilitative award.

The court also stated the trial court failed to consider Spolum’s dubious use of assets during the separation where she transferred $125,000 from the parties’ joint account and only had $40,000 left.

The  court stated the trial court’s finding of the need for discretionary spending of $8,343 per month was excessive. The court also found the trial court clearly erred in finding D’Amato’s income was $950,838 and that spousal maintenance should be based on the obligor’s income at the time of trial. The court noted it was unreasonable for a court to require D’Amato to work a second job in order to satisfy a maintenance award when Spolum is not required to work even one job.

The issue of spousal maintenance is a very difficult matter and requires careful evaluation of numerous factors and often the assistance of experts, including an experienced family law attorney. It is critical to promptly retain an experienced divorce lawyer if spousal maintenance is a potential issue.

Denial of Spousal Maintenance Not Abuse of Discretion In Considering Investment Income From Property Settlement Sufficient To Meet Monthly Needs

In Curtis v. Curtis, A14-1841, (Minn. Ct. App. June 22, 2015) the Minnesota Court of Appeals affirmed a trial court decision to deny a wife’ request for spousal maintenance, based on imputed income from the reallocation of a property settlement from growth investments to income investments based on an  expert who testified wife could earn 7 percent on her investments if she allocated them from growth funds to income funds. The expert testimony was not rebutted at trial. The court determined the trial court did not abuse its discretion by considering the reallocated investment strategy  and that the investment income was sufficient to meet wife’s monthly needs. The court noted that the reallocation of investments in the property division was not an invasion of assets or improper in light of the expert testimony to support the determinations.

In Curtis the court was faced with a couple who was married in 1990 and separated in 2012 or 2013. Husband worked as a dentist and managed the parties investments. They had two children one was now an adult and a 16 year old son. Wife was awarded the house and investments totaling $2,209,399 or 57 % of the marital estate , while husband received 43% of the estate.  Based on expert testimony the trial court determined wife could reallocate growth funds to income producing funds and meet her reasonable monthly expenses. It was noted the spousal maintenance statute, Minn. Stat. 518.552, subd. 2(a) requires a court to consider financial resources, which include income generated by liquid assets citing to Fink v. Fink, 366 N. W. 2d 340, 342 (Minn. Ct. App. 1985).

The court stated the trial court’s decision did not invade her property award to meet her expenses and was not an abuse of discretion. A dissenting Judge noted the tax consequences of reallocating the assets would be significant and was not considered.The court, however, found the trial court was within its discretion not to consider the tax consequences citing to Maurer v. Maurer, 623 N. W. 2d 604, 608 (Minn. 2001), which found that whether to consider the tax consequences of a property division lies within the trial court’s discretion.

This case raises many potential issues to be carefully considered in spousal maintenance cases and makes it clear it is important to present expert testimony on potential investment income and its impact on cash flow or other important financial issues.

Minnesota Court of Appeals Upholds Denial of Spousal Maintenance Award to Wife Who Is Receiving Disability Benefits

Minnesota Court of Appeals Upholds Denial of Spousal Maintenance Award to Wife Who Is Receiving Disability Benefits

In Rakow v. Rakow, A#14-281 (Minn. Ct. App. (Dec. 8, 2014)(unpublished), the Minnesota Court of Appeals affirmed a district court decision denying current spousal maintenance payments while reserving a future award to a wife who was receiving Social Security disability benefits due to a work-related injury, noting that the district court had awarded the wife a larger share of the couple’s property than the husband received. The couple had been married for ten years when the wife petitioned to dissolve the marriage and asked for permanent spousal maintenance, and they apparently did not have any children.

 

Spousal Support in Minnesota

The Court of Appeals noted that district courts have broad discretion in awarding spousal maintenance. Under Minnesota Statutes Section 518.003, subd. 3a, spousal maintenance “is an award of payments from the future income or earnings of one spouse for the support and maintenance of the other.” Further, under Minnesota Statute Section 518.552, subd. 1, a district court can award spousal maintenance to a spouse if she

  1. lacks sufficient property, including marital property apportioned to the spouse, to provide for reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to a period of training or education, or
  2. is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstances, through appropriate employment . . .

That statute, in subdivision B, sets out eight factors that should be considered, along with other relevant factors in awarding spousal maintenance:

  • the resources of the party seeking maintenance, including the property settlement and their ability to meet their needs;
  • the time to complete education and training to become self-sufficient and the likelihood, given the spouse’s age and skills, of becoming full or partially self-sufficient;S
  • the marital standard of living;
  • the length of the marriage and, in the case of a homemaker, the length of absence from employment and the extent to which earning capacity was diminished due to the time out of the workforce;
  • the loss of earnings, seniority, retirement benefits, and other employment opportunities forgone by the spouse seeking spousal maintenance;
  • the age, and the physical and emotional condition of the spouse seeking maintenance
  • the ability of the spouse who is being asked to pay maintenance to meet needs while also meeting the other spouse’s needs; and
  • each party’s contribution to the amount or value of marital property as well as a homemaker’s contribution to furthering the other party’s employment or business.

The Minnesota Court of Appeals found that the district court had adequately considered the relevant factors. In this case, while the wife had not worked at all since August 2012 and her doctor had not been released to work by her doctor, she was planning on back surgery in the next few months which could enable her to return to work. The court noted that she injured her back in a work-related injury and had not lost any income or employment opportunities because of her marriage, and she had worked until her injury.

Further, the court noted that the standard of living during the marriage was beyond the parties’ means, as they had incurred debt to maintain their standard of living, including mortgage debt, loans, and credit card debt.

The court noted that the wife’s monthly income was $1,373 while her monthly expenses totaled $3,108, leaving a deficit of $1,735. In comparison, the husband’s monthly income was $5,108.55 with reasonable monthly expenses of $5,146.68, for a deficit of $38.13. The court did not compare the parties’ post-divorce living expenses or compare them to the parties’ marital standard of living.

The court had taken into consideration the parties’ economic circumstances in crafting the property settlement. Thus, the wife was awarded the entire $14,575 in motor vehicle value and one half of the marital portion of the husband’s pension and his entire employment thrift savings plan, which was more than $20,000, while the husband was to be solely liable for the negative home equity balance, which was close to $70,000.

If the wife is unable to return to work, or she exhausts the property settlement, or her circumstances otherwise change, she would be able to petition for an award of spousal maintenance as the court did reserve the ability to make a future maintenance award.

In any case in which spousal maintenance is an issue, it is useful to consult with an attorney experienced in family law.

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.

Stutler v Moreno

Stutler v Moreno

In Stutler v. Moreno, A13-0056, A3-0460 (Minn. Ct. App. Feb. 3, 2014), the Minnesota Court of Appeals issued several significant decisions regarding modifications of child support and spousal maintenance, including retroactive child support and child maintenance, life insurance requirements, and imputing spousal income.

Retroactive child support and spousal maintenance: The court held that an award of retroactive child support and spousal maintenance was impermissible. In this case, the court had reserved spousal maintenance and child support because the husband was unemployed at the time of the court order. Here, the husband began his new job on October 2nd, and the wife did no object to this employment and requested child support and spousal maintenance on November 18. The court held that child support and maintenance would begin on November 18, the day of the request, denying any child support and maintenance for the period prior to November 18th.

Child support in excess of guidelines: The court remanded the child support award because it was in excess of the net basic support guidelines and lacked the required findings for any child support in excess of those guidelines. The court held that the statute, Minnesota Statute 518A.43, sudivision 1(1) 58A.43, requires the court to consider factors including (1) each parent’s earnings, income and resources; (2) any extraordinary financial needs and resources, physical or emotional condition, and educational needs of the children; and (3) the standard of living the child would enjoy if the parents lived together. As a result, the district court was required to reconsider the child support award and issue specific findings.

Life Insurance: The court also reversed the district court’s order requiring the father to maintain $750,000 in life insurance. He had $200,000 in life insurance, as required by the original dissolution order, and obtained another $462,000 in life insurance from his employer, for a total of $662,000, leaving a balance of $88,000. The court held that the district court is required to make findings regarding the availability, insurability, and cost of insurance, and, reduce the insurance required, to “that available at a reasonable rate.”

Modification: The court upheld the district court’s decision granting the ex-wife’s motion to modify spousal maintenance and child support in light of the ex-husband’s new employment. Under Minnesota Statute 518.39A, subdivision. 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 held that a change in the circumstances of one party can be sufficient to justify a modification.

The court rejected the husband’s argument that the modification was beyond the parties’ marital standard of living. The husband had earned over $300,000 annually before the separation, but his income had declined to $140,000 when he started a new job in October 2011. However, by August 2012, he had started new employment paying $228,000 annually with a signing bonus and other potential bonuses. The court held that the district court did not abuse its discretion in finding that the earlier award of maintenance did not reflects the parties’ marital standard of living. However, the court found that the trial court erred in considering evidence from mediation regarding the parties’ marital standard of living without consideration of the mediation evidence although it could reopen the record for additional evidence.

The court held that the district acted within its discretion by awarding spousal maintenance of $6,500 base amount plus 25% of gross income, including cash bonuses earned over $228,000, up to a maximum of $20,000. The court noted that the bonuses had not been included in the base maintenance, and the ex-wife’s reasonable needs included parenting the parties ‘child with Down Syndrome, and the parties’ marital standard of living, as well as the cap on the amount and the fact it was contingent on the funds being paid.

The court did find that the district court erred in ‘calculating the father’s ability to pay the excluding the $668.97 monthly payment that the father paid for TEFRA, a form of medical assistance for children with disabilities. The court that this expense was so substantial that it could not be excluded.

Imputing income to an ex-spouse: The court upheld the trial court’s determination that, in calculating spousal maintenance and child support, $6,000 annual income would be imputed to the ex-wife. Although a vocational expert had found that she could earn $22,000, the court found that her responsibilities for caring for her eleven year old child with Down Syndrome precluded such full-time employment. However, the court rejected the ex-wife’s argument that no income should be imputed, noting that she could work at least four hours a day, given the child was in school for seven hours a day and also received personal care services.

Attorneys fees: The court also upheld the district court’s denial of need-based attorney fees, provided in Minnesota Statute Section 518.14, subdivision 1 (2013). The wife had $300,000 in her bank account and was expecting to receive $200,000 from the sale of the house. The court did uphold some conduct-based attorneys’ fees.

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

Myhre v. Myhre

Myhre v. Myhre

In Myhre v. Myhre, A12-2276 (Minn. Ct. App. Nov. 12, 2013), the Minnesota Court of Appeals made clear that district courts may reject parties’ stipulated facts but only if the parties are given an opportunity to litigate those facts and that district courts have discretion to choose which expert to accept in valuing businesses.

Rejecting Stipulated Facts without Giving Parties an Opportunity to Litigate those Facts Is an Abuse of Discretion

To reduce the issues to be tried before the court, the parties may enter into stipulations regarding facts. Once the facts are stipulated, the parties cannot withdraw the stipulation without consent from the other party or a judicial finding of good cause for withdrawing the stipulation. However, the parties’ stipulations are not binding on the court; the court may reject the stipulated facts altogether or just in part. If the court rejects the stipulation, the parties are entitled to litigate their claims. Thus, the Minnesota Court of Appeals held that the trial court abused its discretion in rejecting the parties’ stipulation that the mother’s income was $50,000 annually and calculating spousal maintenance and child support, finding that the mother’s income was lower than the stipulated income.

The court held that, before reaching a finding that the stipulation as to the mother’s income was not fair and reasonable, the court needed to provide both parties with notice, either before or during the trial, that it was considering evidence outside the stipulation regarding the mother’s income and give them the opportunity to litigate the issue by presenting evidence and arguing the issue.

The court also hold that the district court did not make sufficient findings of fact to show it had properly considered the statutory criteria in setting the amount of spousal maintenance. Minn. Stat. 518.552 (2013). Thus, the court must consider the party’s actual or reasonably anticipated income as well as the party’s reasonable expenses. In this case, the court had rejected the parties’ stipulation as to the mother’s income without making a finding as to her actual or reasonably anticipated income. Further, the absence of such a finding leaves the parties without a baseline to use in the future if either party seeks to modify the maintenance award.

Strangely enough, although the district court had rejected the parties’ stipulation as to the mother’s income for the purpose of calculating spousal maintenance, it relied on the stipulation in calculating child support. The Minnesota Court of Appeals held that such use of the stipulation was an abuse of discretion; the district court can accept the stipulation in whole or in part, but it cannot reject the same stipulated fact for one purpose and use it for another. Further, the court also held that, in calculating parental income for the purpose of child support, the district court is required to include spousal maintenance as income for the spouse receiving maintenance.

 

The District Court Acted within Its Discretion in Accepting an Expert’s Valuation of a Business

The Minnesota Court of Appeals affirmed the district court’s findings in valuing the father’s business, holding that the findings of fact regarding valuing an asset will only be set aside if clearly erroneous. The district court had accepted the valuation prepared by a neutral expert, who had been retained by both parties. The father had subsequently retained a second neutral expert, who valued the business at a lower amount.   The first expert had included income from 2010, which was significantly higher than other years and included a growth rate for the business. The court held that the district court acted within its discretion in accepting the first expert’s valuation, as both experts had given reasoned explanations for the valuation.

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.