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Shubert v. Shubert

August 19, 2003

IN RE THE MARRIAGE OF:
CONSTANCE JEAN SHUBERT, PETITIONER, RESPONDENT,
v.
JAMES JOSEPH SHUBERT, APPELLANT.



Hubbard County District Court File No. F495340

Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

The opinion of the court was delivered by: Halbrooks, Judge

Affirmed in part, reversed in part, and remanded

UNPUBLISHED OPINION

In this family law matter, appellant challenges the district court's (1) denial of his motion to modify the maintenance award, (2) award of attorney fees to respondent, and (3) grant of a cost-of-living adjustment. Because we conclude that the record is insufficient to determine if modification is appropriate, we remand that issue to the district court. Because the district court abused its discretion in awarding attorney fees without a determination as to the basis for the award and supporting findings, we reverse the award of fees. We affirm the district court's grant of a cost-of-living adjustment to respondent.

FACTS

Appellant James Joseph Shubert and respondent Constance Jean Shubert divorced after 40 years of marriage. During the parties' marriage, appellant completed dental school and maintained a dental practice. Respondent, while primarily a homemaker, did occasional work as a bookkeeper in appellant's dental office and as a church organist. The parties have three children, who are now adults.

In 1996, the parties agreed on a stipulation that provided the basis for the dissolution decree. Pursuant to the decree, various property was distributed between the parties and appellant was ordered to pay respondent $1,950 per month, "[a]s permanent maintenance[.]"

On March 21, 2001, respondent's father died. His will bequeathed $150,000 to respondent in addition to real estate and personal property with an estimated value of $291,006.41 (a total inheritance of $441,006.41). Respondent was appointed as personal representative of her father's estate. In May 2001, respondent turned 65 and began receiving monthly social security benefits in the amount of $603.

Based on respondent's inheritance, appellant moved to modify the permanent maintenance award, arguing that respondent has a substantially decreased need for maintenance and that the change renders the existing maintenance award unreasonable and unfair under Minn. Stat. §á518.64, subd. 2(a)(2), (4) (2002). Respondent moved for a cost-of-living adjustment (COLA) and for attorney fees.

Following a hearing, the district court found that, because respondent has not yet received her inheritance, there has not been a substantial change in the resources or needs of either party that would justify a modification. In addition, the district court noted that appellant was cognizant of respondent's potential inheritance at the time of the stipulation and dissolution when he agreed to pay permanent maintenance to respondent. Based on these findings, the district court concluded that appellant had not satisfied the requirements necessary for a modification of maintenance under Minn. Stat. §á518.64, subd. 2(a)(2), (4). As a result, the court denied appellant's motion to modify maintenance and granted respondent's motions for a COLA and attorney fees. This appeal follows.

DECISION

I.

The party moving to modify a maintenance award bears the burden of showing a substantial change of circumstances since the time of dissolution. Gorz v. Gorz, 552 N.W.2d 566, 569 (Minn. App. 1996); accord Minn. Stat. ยงรก518.64, subd. 2 (2002). The moving party must then demonstrate that these changed circumstances render the original award unreasonable and unfair. Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997). A finding that one of the conditions for modification has ...


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