In re the Marriage of: Elizabeth Ann Fritz, petitioner, Respondent, vs. Steven Larry Fritz, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-03-12

 

In re the Marriage of:

 

Elizabeth Ann Fritz, petitioner,

Respondent,

 

vs.

 

Steven Larry Fritz,

Appellant.

 

Filed November 25, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Scott County District Court

File No. F0014781

 

 

Jonathan J. Fogel, M. Sue Wilson Law Offices, P.A., Two Carlson Parkway, Suite 150, Minneapolis, MN 55447 (for respondent)

 

Steven L. Fritz, 385 Kincora Court, San Jose, CA 95136 (appellant pro se)

 

Considered and decided by Willis, Presiding Judge; Toussaint, Chief Judge; and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

 

After the parties' marriage dissolution in July 2001, the district court twice suspended appellant-husband's spousal-maintenance obligation because of appellant's unemployment.  In November 2002, the district court denied appellant's motion for another suspension of his maintenance obligation after determining that appellant's continued unemployment was voluntary and in bad faith and that appellant was in constructive civil contempt for failure to pay his spousal-maintenance obligation.  In a pro se appeal, appellant challenges the district court's November 2002 order.

FACTS

            Appellant Steven Fritz and respondent Elizabeth Fritz were divorced in July 2001, after almost 26 years of marriage.  Throughout the marriage, respondent earned minimal income.  In the judgment dissolving the marriage, the district court ordered appellant to pay spousal maintenance of $2,500, based on his employment history and regular monthly net income of $3,377 plus his commissions and bonuses.  At that time, appellant was employed in the computer industry in San Jose, California.  In August 2001, appellant was terminated from his employment and has remained unemployed.  As a result of his unemployment, appellant has not satisfied his spousal-maintenance obligation.

            In January 2002, the district court suspended appellant's maintenance obligation until May 2002 because of appellant's lack of employment and his inability to pay.  In a June 2002 order, the district court continued the suspension of appellant's maintenance obligation through August 2002.  In the June 2002 order, the district court required appellant to be prepared to show compelling reasons for his unemployment if he chose to bring any motions in the future to continue to suspend his maintenance obligation.  Appellant again brought such a motion in September 2002. 

On September 25, 2002, the district court heard appellant's motion to continue the suspension of his spousal-maintenance obligation.  Appellant currently lives in California, and he appeared pro se via telephone.  Respondent was present and represented by counsel.  The district court scheduled the motion for one hour.

At the hearing, the court expressed concern that appellant's job-search process of "sitting in front of a computer and sending e-mails and resumes is not going to get [appellant] a job," and the court was "not convinced that [appellant was] making a sincere effort to obtain employment."  The district court further said that, based on appellant's prior behavior and the fact that he has made no attempt to pay any court-ordered maintenance, the court was "beginning to believe that [appellant was] just choosing not to be employed."

            The district court determined that appellant's continued unemployment was in bad faith and denied the motion to continue suspension of his spousal-maintenance obligation.  Appellant challenges the district court's November 2002 order, claiming that the district court abused its discretion when it denied a continuation of the suspension of maintenance, denied him the opportunity to submit evidence, and did not allow him sufficient time to present his case.

D E C I S I O N I

            Modification of spousal maintenance is within a district court's broad discretion, and this court will not reverse the district court's determination absent an abuse of that discretion.   Stich v. Stich, 435 N.W.2d 52, 53 (Minn. 1989).  The district court abuses its discretion if the court resolves a matter in a manner that is "against logic and the facts on record."  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984). 

When a party moves to modify a spousal-maintenance obligation, the district court must first determine whether a change in circumstances warrants modification of the existing obligation.  Minn. Stat. § 518.64, subd. 2 (2002).  The district court may modify a maintenance obligation if there has been a substantial increase or decrease in the earnings of a party.  Minn. Stat. § 518.64, subd. 2(a)(1).  The moving party bears the burden of demonstrating that a substantial change in circumstances under the statute has occurred and that the change in circumstances has rendered the original maintenance or support award unreasonable and unfair.  Hecker v. Hecker, 568 N.W.2d 705, 709 (Minn. 1997).

In this case, appellant's loss of employment was a substantial change in circumstances and the district court twice suspended his maintenance obligation.  However, in June 2002, the district court also required appellant to seek employment in good faith and informed him that if he moved again to continue the suspension of maintenance, he would have to provide compelling reasons for his continued unemployment.  Based on the record and the parties' arguments at the September 2002 hearing, the district court determined that appellant continued to be unemployed in bad faith and ordered appellant's monthly maintenance obligation to remain at $2,500.

"To conclude that an unemployed obligor has acted in bad faith, the district court must find that the obligor has unjustifiably self-limited personal income."  Schneider v. Schneider, 473 N.W.2d 329, 332 (Minn. App. 1991).  The district court may consider an obligor's past earning history and earning capacity in estimating the obligor's future income and ability to pay spousal maintenance.  LeRoy v. LeRoy, 600 N.W.2d 729, 733 (Minn. App. 1999), review denied (Minn. Dec. 14, 1999).  And this court defers to the district court's credibility and factual determinations regarding whether a party's employment decision was made in bad faith.  Devault v. Waller, 494 N.W.2d 92, 94 (Minn. App. 1992).

At the September 2002 hearing, appellant provided the district court with over 2,000 pages (3 boxes) of Internet printouts.  The e-mails included correspondence with various "head-hunters" regarding job openings that fit his qualifications.  The e-mails also indicated that appellant had submitted his résumé electronically to various companies.  During the hearing, appellant stated that he did not just sit in front of the computer to pursue his job search and attempted to explain the content of the e-mails and his job-search process.  He also stated that he was living on "borrowed money."

Respondent argued that appellant has not provided evidence of his expenses, debts, or inability to meet his expenses; his 2001 tax returns; any borrowed money, such as notes or bank loans; or any information that his unemployment compensation benefits that he has received or whether the benefits have been exhausted.  Respondent also argued that appellant's history of not paying or even attempting to pay his spousal-maintenance obligation indicates bad faith.

During the hearing, the district court stated that the court simply did not believe that appellant was not somehow employed or could not find some employment based on appellant's employment history and that he has somehow managed to survive in the San Jose, California area since being terminated from his job in August 2001.  The district court acknowledged that some of appellant's e-mails indicated that appellant was submitting his résumé to various companies.  Nonetheless, the district court found these documents to be useless in evaluating whether appellant had made a good-faith job search and that, in light of appellant's employment history, he was currently unemployed in bad faith. 

Because we defer to the district court's credibility determination regarding appellant's unemployment situation and because we find no abuse of discretion based on the record before us, we affirm the district court's decision.

II

 

            Appellant also appears to raise two procedural issues relating to the manner in which the district court held the hearing.  Appellant argues that the district court abused its discretion because it denied him the right to provide evidence in support of his motion and that he did not have sufficient time to argue his case.

a.         Evidentiary hearing

Appellant's first contention is that the district court refused to schedule an evidentiary hearing.  In general, Minnesota law does not require the district court to hold an evidentiary hearing on a motion to modify spousal maintenance.  Minn. Stat. § 518.64, subd. 2(f). 

A motion to modify spousal maintenance must be supported by affidavits and other relevant documents, but a party may also move that the court allow oral testimony on the motion.  Minn. R. Gen. Pract. 303.03(d).  Amotion to modify a spousal-maintenance obligation is generally determined on affidavits and no need for cross-examination exists.  Mathias v. Mathias, 365 N.W.2d 293, 296-97 (Minn. App. 1985).  This is because a maintenance modification generally only requires one party to show a change in need or ability to pay.  Id. at 297.  A court need not conduct an evidentiary hearing when considering modification of a spousal-maintenance obligation if the facts are not complicated and the evidence can be fairly and efficiently presented by affidavits and documentary evidence.  Id.  However, if the "facts are complicated or the affidavits so conflicting as to render cross-examination essential, then the desirability of expeditious procedure must give way to a more formal hearing."  Id. (quoting Saturnini v. Saturnini, 260 Minn. 494, 489, 110 N.W.2d 480, 483 (1961)).  The district court has the discretion to determine whether an evidentiary hearing is required.  Christenson v. Christenson, 490 N.W.2d 447, 451 (Minn. App. 1992), review denied (Minn. Jan. 15, 1993). 

Here, because appellant appeared pro se, the district court allowed him to explain the documents that he submitted in support of his motion.  The court also allowed appellant to explain the manner in which he claimed he proceeded in his job-search efforts.  The district court explicitly stated on the record that the court was not taking testimony from appellant during the hearing, but that, nonetheless, the court allowed him more leeway because he was pro se.  In light of the discretion afforded the district court in determining whether to allow an evidentiary hearing, and because the facts of this case are not so complicated or conflicting, we find no abuse of discretion and therefore affirm the district court on this issue.

            b.         Time for motion hearing

            Appellant also argues that he was not given enough time to argue because the district court limited him to ten minutes.  Even when oral testimony is requested for a motion hearing, the court generally schedules a hearing time of 30 minutes.  Minn. R. Gen. Pract. 303.03(d).

            Based on the transcript, the district court provided appellant a fair amount of time to present his argument.  When the district court told appellant that he had ten minutes remaining, appellant had already been presenting argument to the court for 20 out of the first 31 pages of the transcript.  The transcript shows that appellant spent that time attempting to explain his job-search process and the meaning of the thousands of pages of e-mails that he provided to the district court in support of his motion.  When the district court informed appellant that he would have ten minutes to present the remainder of his argument, the court told him that the hearing was scheduled for one hour and that the court had another matter on the calendar immediately following this motion hearing.  The district court also informed appellant that the court was not taking testimony from appellant because the motion hearing was not an evidentiary hearing and appellant was supposed to present his argument to the court based on the exhibits attached to appellant's affidavit.  The district court then explained to appellant the manner in which a motion hearing operates, and that he had provided appellant additional flexibility because he appeared pro se.  On the record before us, we find no abuse of discretion.

III

Finally, appellant brought a motion to strike that portion of respondent's brief that references e-mails and court orders that were entered subsequent to the order being appealed.  Because we have not relied on those portions of respondent's brief and appendix that appellant is requesting we strike, we decline to address his motion to strike.  See Berge v. Comm'r of Pub. Safety, 588 N.W.2d 177, 179-80 (Minn. App. 1999) (finding it unnecessary to address the merits of a motion to strike when the appellate court did not rely on the objected-to portions).

Affirmed.