In re Phyllis H. Johnson, petitioner, Respondent, vs. Marc Bailey Johnson, 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This opinion will be unpublished and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

A03-422

 

In re

Phyllis H. Johnson, petitioner,

Respondent,

 

vs.

 

Marc Bailey Johnson,

Appellant.

 

Filed ­­­November 25, 2003

Affirmed

Harten, Judge

 

Mower County District Court

File No. F0-01-1660

 

Craig M. Byram, Hoversten, Johnson, Beckman & Hovey, LLP, 807 Oakland Avenue West, Austin, MN 55912 (for appellant)

 

Bryan J. Baudler, Baudler, Baudler, Maus & Blahnik, LLP, 108 North Main Street, Austin, MN 55912 (for respondent)

 

            Considered and decided by Harten, Presiding Judge, Hudson, Judge, and Crippen, Judge.*

 

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant Marc Johnson argues that respondent Phyllis Johnson's maintenance award is excessive.   Because the district court did not abuse its discretion in setting maintenance, we affirm.

FACTS

The parties were married for 32 years.  Appellant, a corporate sales manager for Hormel Foods, had a gross annual income of $178,645 in 2002.  Respondent has not been employed for seven years.  Prior to that, she worked at a variety of full-time and part-time jobs.  She has no formal education or training beyond two years of college.

The district court found that respondent's reasonable monthly living expenses, including taxes, were approximately $5,500 to $6,000; that she could work part-time and earn a gross monthly income of $1,000, and that she was entitled to monthly spousal maintenance of $4,000.

In his motion for amended findings of fact and conclusions of law, appellant asked that spousal maintenance be set at about $1,000, arguing that respondent is able to work full-time, could earn $1,907 per month, and has total monthly expenses of $4,811 to $5,311.

            The district court again found that respondent can only work part-time and the court retained the maintenance award of $4,000.  But some findings were amended; the district court found that respondent could earn between $500 and $1,300 gross income per month, and needs approximately $5,311 plus an amount to cover her FICA contributions.  Appellant challenges the maintenance award.

D E C I S I O N

A district court may award maintenance if it finds that a spouse is unable to provide adequate self-support through appropriate employment in view of the standard of living during the marriage.  Minn. Stat. § 518.552, subd. 1(b) (2002).  In determining the amount of maintenance, the court must consider the factors set forth in Minn. Stat. § 518.552, subd. 2 (2002). 

This court reviews a district court's maintenance award under an abuse of discretion standard.  Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 1997).  The district court has broad discretion in determining the amount of maintenance.  Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).  For this court to conclude that the district court abused its broad discretion with respect to an award of spousal maintenance, the district court's findings of fact must be "against logic and the facts on [the] record."  Id.  "Findings of fact concerning spousal maintenance must be upheld unless they are clearly erroneous."  Gessner v. Gessner, 487 N.W.2d 921, 923 (Minn. App. 1992).

Appellant challenges three of the district court's findings.  First, appellant argues that the record does not support the finding that respondent's general physical condition and age limit her to part-time employment.  The record shows that, at the time of the dissolution, respondent was 52 years old and that her medical problems included scoliosis, osteoporosis, deteriorating bones in her knees and back, and lingering problems from three major car accidents.  She testified that one of her knees "is put together with pins," that she was having surgery on one knee after the dissolution trial and planned surgery on the other knee in the future, that at times she could not walk, that her upper and lower back hurt if she sits for extended periods of time, and that she visits a chiropractor once or twice a week.  She also testified that she would be physically uncomfortable if she had to work at a "desk job."  This evidence supports the finding that respondent's age and physical condition limit her to part-time employment.  Thus, the finding is not clearly erroneous.

Second, appellant challenges the finding that respondent could only earn $550 per month. But appellant misstates the court's actual finding.[1]  The court specifically found that respondent should be able to earn between $500 to $1,300 per month by multiplying 20 hours a week by $6, the minimum wage, and by $15.30, the highest wage appellant's employment expert suggested respondent could earn.  The finding is not clearly erroneous.

Third, appellant challenges a finding based in part on the status of the economy because nothing in the record pertains to the status of the economy and a court cannot take judicial notice of the status of the economy.[2]  While the record does not support the reference to local and national economies, the finding that respondent is capable only of part-time work and of earning a gross monthly income of $500 to $1,300 is not clearly erroneous.  That finding is also based on respondent's "long absence from the job market, age and physical problems."  The parties do not dispute that respondent had not worked for seven years prior to the dissolution, that she only worked part-time for three years prior to that, that she is 52, and that she has multiple medical problems.  This evidence is sufficient to support the district court's findings regarding her ability to work part-time and her expected income irrespective of any stray references to local or national economies. 

            Finally, appellant asserts that the district court abused its discretion by amending findings "sua sponte," arguing the court had the authority to amend only the findings that he challenged in his motion.  But a party moving for amended findings may not limit the district court's review of the record; because findings of fact are frequently interrelated and a number of findings may be based on a single item of evidence or the testimony of a single witness, the judge must be free to review all the evidence and all its findings in response to a motion to amend.   McCauley v. Michael,256 N.W.2d 491, 499-500 (Minn. 1977).  "The judge may find that in some cases new findings in favor of the moving party are appropriate, while in others revision unfavorable to the movant is appropriate."  Id. at 500.  The district court did not abuse its discretion by amending findings that appellant did not challenge.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Appellant arrives at this figure by deducting respondent's monthly maintenance award of $4,000 and her monthly investment income of $775 from her monthly expenses of "$5,311."  But the district court actually found respondent's monthly expenses are "$5,311 + FICA," and that her tax liabilities and FICA contributions will fluctuate.    It is inaccurate, therefore, to conclude that the court found respondent only needs to earn "$550" per month to meet her monthly expenses.  In addition, the district court acknowledged that $550 is a conservative estimate of respondent's potential monthly earnings. 

[2] The district court rejected the view of appellant's employment expert that respondent could promptly reenter the workforce and earn $12 per hour or more by saying it was "overly optimistic" due in part to "local and national economies."