Gessner v. Gessner
| Decision Date | 18 August 1992 |
| Docket Number | No. C1-92-708,C1-92-708 |
| Citation | 487 N.W.2d 921 |
| Parties | In re the Marriage of Deborah A. GESSNER, Petitioner, Respondent, v. John M. GESSNER, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Under Minn.Stat. Sec. 518.64 (Supp.1991), the parties have a right to seek modification of maintenance. The parties may waive this right, but such a waiver will not be inferred where the stipulation or decree does not clearly indicate the parties' intention to supplant the statutory scheme.
Richard D. Goff, Sonja Trom Eayrs, St. Paul, for respondent.
Louis M. Reidenberg, Jeffrey R. Arrigoni, Reidenberg & Arrigoni, Minneapolis, for appellant.
Considered and decided by HUSPENI, P.J., and CRIPPEN and NORTON, JJ.
The trial court modified a prior judgment to give permanent maintenance to respondent Deborah Gessner. Appellant John Gessner challenges the award, claiming that the parties waived any right to seek permanent maintenance and that in any case the circumstances do not warrant a permanent award. Respondent challenges the amount of the award.
The parties were married for approximately 18 years before their marital relationship was dissolved in 1984. Appellant was the primary wage earner and respondent was principally a homemaker, although respondent was employed outside of the home during the latter part of the marriage and earned nearly $23,000 in 1983. Accordingly, the judgment provided for decreasing temporary monthly spousal maintenance payments of $1400 for two years, $1200 for the next two years, $600 for the next year, and $250 for the two years through August 1991.
After the dissolution, respondent desired a career change and sought to finish her educational training. However, due to various factors, she was unable to complete her coursework. During this period she also worked at a number of jobs and eventually was hired for her present position as a vocational counselor. Respondent still seeks to obtain advanced education even though she believes it will not significantly improve her earning potential. During the same period, appellant also failed to achieve substantial earned income. However, appellant received over $50,000 annually on a nonmarital asset.
Currently, respondent earns approximately $21,000 per year from her job and receives over $8000 per year from a family trust. Appellant receives nearly $60,000 per year from his nonmarital assets, but claims that he will have no job income for at least two years until he can become established in his new vocation as a psychologist.
In July 1991, respondent moved for an extension and increase of spousal maintenance or an award of permanent spousal maintenance. The trial court ordered the imposition of permanent spousal maintenance in the amount of $250, the amount last prescribed by the temporary spousal maintenance schedule contained in the judgment. The trial court found that respondent currently has reasonable monthly expenses of approximately $2100 and appellant has reasonable monthly expenses of approximately $3100-3200.
1. Did the trial court err as a matter of law in determining that the parties had not agreed to a waiver of respondent's right to seek permanent spousal maintenance in the future?
2. Did the trial court abuse its discretion in awarding permanent spousal maintenance of $250 per month?
A trial court may be divested of jurisdiction to modify spousal maintenance awards if the parties agree to such an express and immediate waiver. Borgeson v. Borgeson, 461 N.W.2d 402, 403 (Minn.App.1990); see also Karon v. Karon, 435 N.W.2d 501, 503 (Minn.1989); Keating v. Keating, 444 N.W.2d 605, 607-08 (Minn.App.1989), pet. for rev. denied (Minn. Oct. 25, 1989); Berens v. Berens, 443 N.W.2d 558, 563-64 (Minn.App.1989), pet. for rev. denied (Minn. Sept. 27, 1989). However, a review of these cases emphasizes the fact that in every case there has been an express waiver of rights otherwise provided under the modification provisions of Minn.Stat. Sec. 518.64 (Supp.1991). See Borgeson, 461 N.W.2d at 403 (); see also Telma v. Telma, 474 N.W.2d 322, 323 (Minn.1991) (). None of the cases permit inference of a waiver from language merely setting temporary maintenance and denying permanent maintenance.
In the instant case, there has been no express divestiture of jurisdiction for the trial court to hear a modification motion. Moreover, the statement in the 1984 judgment that "neither Party is awarded permanent spousal maintenances, past, present or future," is a simple declaration that the decree only sets out a temporary maintenance schedule and nothing in the document should be construed as a statement of permanent maintenance benefits.
Absent the clear divestiture of jurisdiction, such as in Karon or Berens, we are not at liberty to assume that parties have specifically bargained to supplant the statutory modification procedures. In the circumstances here, because the language in the 1984 judgment did not waive respondent's right to seek modification, the trial court correctly concluded that respondent could presently petition for modification relief.
A court must find that there has been a significant change in the parties' circumstances and that the change renders the original decree unreasonable and unfair before the court can extend a temporary maintenance award or award permanent maintenance. Minn.Stat. Sec. 518.64, subd. 2. However, the trial court has broad discretion in determining the level and duration of spousal maintenance. Taylor v. Taylor, 329 N.W.2d 795, 797 (Minn.1983). Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous. Kottke v. Kottke, 353 N.W.2d 633, 635 (Minn.App.1984), pet. for rev. denied (Minn. Dec. 20, 1984).
The trial court found that: (1) it would be unjust to discontinue maintenance, (2) respondent had maximized her income, (3) respondent's cost of living had substantially increased, (4) appellant's gross income had increased, and (5) respondent needed between $300-400 in additional income and appellant was able to provide between $100-300 of additional maintenance. Accordingly, the trial court amended the original judgment to provide that appellant shall pay respondent permanent spousal maintenance of $250 per month.
Appellant alleges that the trial court erred in awarding permanent maintenance because neither party's...
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