Hecker v. Hecker, CX-95-1841

• Decision Date: 11 September 1997
• Docket Number: No. CX-95-1841,CX-95-1841
• Citation: 568 N.W.2d 705
• Parties: In re the Marriage of Dennis Earl HECKER, petitioner, Appellant, v. Sandra K. HECKER, Respondent.
• Court: Minnesota Supreme Court

Page 705

568 N.W.2d 705

In re the Marriage of Dennis Earl HECKER, petitioner, Appellant, v. Sandra K. HECKER, Respondent.

No. CX-95-1841.

Supreme Court of Minnesota.

Sept. 11, 1997.

Rehearing Denied Oct. 31, 1997.

Syllabus by the Court

Where a spousal maintenance recipient has failed to attain a level of self-sufficiency presumably contemplated by the parties' stipulation for temporary spousal maintenance, it is not an abuse of the trial court's discretion to find that there has been a substantial change in circumstances warranting modification of the maintenance award. Minn.Stat. § 518.64, subd. 2 (1996). However, where the record demonstrates that the maintenance recipient did not make reasonable efforts to rehabilitate, it is within the trial court's discretion to attribute to that individual an income that reasonable efforts would have produced.

Edward Winer and Susan C. Rhode, Moss & Barnett, P.A., Minneapolis, James H. Gilbert, Meshbesher & Spence, Ltd., Minnetonka, for Appellant.

Michael Ormond, Ormond Law Offices, Minneapolis, for Respondent.

Heard, considered, and decided by the court en banc.

OPINION

KEITH, Chief Justice.

This spousal maintenance modification proceeding focuses on the attempts of a temporary maintenance recipient to obtain a permanent award. When, after a series of proceedings in the district court and the court of appeals, Sandra K. Hecker was awarded permanent spousal maintenance in the monthly amount of $1,375, we granted the petition of Dennis E. Hecker for further review to address the exercise of the trial court's discretion in recasting Dennis Hecker's temporary spousal maintenance obligation as permanent and increasing it. We affirm.

Dennis and Sandra Hecker were married on February 23, 1973. Throughout the marriage, Dennis enjoyed considerable success in the auto sales business while Sandra engaged in traditional homemaking responsibilities, including caring for the parties' two children and volunteering at church and at the children's school. In August 1982, Dennis petitioned the district court to dissolve the marriage. Both parties retained counsel and negotiated a marital termination agreement which was executed in April 1983. Among its terms were the award to Sandra of the sole physical custody of the parties' 5- and 8-year-old daughters, child support in the amount of $800 per month per child, certain real and personal property, and temporary spousal maintenance of $800 per month for 121 months until June 1, 1993. The judgment and decree entered on May 13, 1983 incorporated the terms of this agreement.

Sandra's first motion to modify the judgment and decree to increase child support and maintenance was filed in September 1985. The parties stipulated to an increase in child support to $900 per month per child, and an increase in spousal maintenance to $1,000 per month for a five-year period, thereafter to return to the original $800 per month for the duration of the temporary period until June 1, 1993. The trial court incorporated that stipulation when it entered an amended judgment and decree on January 24, 1986. Less than a month later, Sandra sought to have the provisions of the judgment and decree relating to the property division vacated, claiming that Dennis had fraudulently concealed assets at the time of the original proceeding. Again, the parties settled the dispute, stipulating that, in exchange for Sandra's waiver of any claims for fraudulent concealment, she would receive $155,000. The judgment and decree was amended to reflect this agreement and entered on June 26, 1987.

On February 2, 1993, four months before her temporary spousal maintenance award was to expire, Sandra again moved the district court to modify the judgment and decree by increasing her monthly maintenance to $2,000 and designating it as a permanent award. In support of her claim that changed circumstances rendered the original award unreasonable or unfair, Sandra stated that she was then 45 years old and, because of her responsibilities with regard to the children, she never completed vocational training as she had intended at the time of the marriage dissolution entered ten years earlier. She claimed that her monthly income from child support and maintenance was $3,196.92 and that her monthly expenses for herself and the youngest child were $3,107, but because the oldest child was to graduate from high school in June 1993, the loss of support for that child and that the expiration of the temporary maintenance period would leave her without sufficient means to provide for her own support. While Dennis acknowledged that he had sufficient income to support a modification, he opposed it based upon the parties' earlier agreements.

Sandra, who was 35 years old at the time of the marriage dissolution, apparently initially appreciated that, because of her stipulation for durational, not permanent maintenance, it was necessary for her to retrain or otherwise enter the labor market. Within a year of that dissolution, in 1984, she obtained a part-time position at the YMCA, performing various tasks during her eight-year employment. She earned approximately $6 per hour during that employment period. She left the YMCA in October 1992 and, from December 1992 to February 1993, was employed as an interviewer for a temporary job service earning $7 to $7.50 per hour. During this time, she applied for several full-time positions, stating that she had initially preferred part-time employment so that she could retain flexibility and meet her children's needs. ¹

The referee granted Sandra's motion for an increased and permanent award in its entirety, finding that she had failed to rehabilitate and that this failure constituted the requisite substantial change in circumstances that rendered the original award unreasonable and unfair. The referee's award of $2,000 per month as permanent spousal maintenance was affirmed by the district court.

On Dennis' appeal, a divided panel of the court of appeals reversed in an unpublished opinion. Hecker v. Hecker, 1994 WL 200604 (C8-93-2305 Minn.App.1994). The court was troubled by the inadequacy of the record as it related first, to Sandra's financial circumstances, particularly with regard to any investment income attributable to the $155,000 additional property division awarded in 1987, and then, to the reasons for her failure to rehabilitate. The appellate court remanded to the district court for further proceedings to address those inadequacies and to determine whether Sandra's claimed changed circumstances satisfied the statutory basis for modification. Minn.Stat. § 518.64, subd. 2 (1992). Relying upon its earlier decision in Sand v. Sand, 379 N.W.2d 119 (Minn.App.1985), the appellate court appears to have suggested to the trial court that the reasons for Sandra's failure to rehabilitate must be ascertained because, at the time of the dissolution, the parties contemplated that she would be the primary custodian of the children and, as far as the record was developed, there existed no changed circumstances--that is, the fact that Sandra would devote considerable time to the care of the children was expected when the parties agreed to her sole physical custody.

On remand, the referee expanded her inquiry to consider not only those issues specified by the court of appeals, but also Sandra's renewed request for permanent maintenance, on this occasion in the amount of $3,000 per month. Dennis offered the report of a vocational expert who opined that Sandra could expect entry-level earnings of $16,000 per year in retail management and, with three years' experience, could increase those earnings to $25,000 per year. The expert commented that during the time since the marriage was dissolved, Sandra was "minimally involved" in preparing for or pursuing a career and that she could have improved her earning capacity had she made a greater effort. The report was not rebutted.

The referee found that, in reliance upon Dennis' financial prosperity, Sandra "chose not to make any serious effort at obtaining vocational training or work experience, but rather decided to rely upon the possibility that she would continue to receive spousal maintenance, despite the terms of the decree." The referee found that there was no evidence to support Sandra's claim that her health problems, the health or needs of the children, the stress of divorce or the need to appear in court for periodic litigation restricted her achievement of better employment with greater income. Based upon Sandra's failure to make any reasonable effort toward rehabilitation, the referee concluded that it was necessary...