This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A15-1596
In re the Marriage of:
Roger Alan Roy, petitioner,
Respondent,
vs.
Bonnie LaMay Roy,
Appellant.
Filed August 8, 2016
Affirmed
Smith, John, Judge *
Carver County District Court
File No. 10-FA-08-511
Denis E. Grande, DeWitt Mackall Crounse & Moore S.C., Minneapolis, Minnesota (for
respondent)
Bonnie L. Roy, Waconia, Minnesota (pro se appellant)
Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and Smith,
John, Judge.
*
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
SMITH, JOHN, Judge
We affirm the district court’s order denying appellant’s motion to increase her
spousal maintenance award. The district court did not abuse its discretion by concluding
that appellant failed to establish a substantial change of circumstances warranting an
increase in maintenance.
FACTS
The district court dissolved the 15-year marriage of appellant Bonnie LaMay Roy
and respondent Roger Alan Roy by judgment in 2009. Roger is self-employed as the sole
proprietor of Roy Custom Homes, LLC and was then working only as a subcontractor to
another company. Bonnie, who has a past history of employment as a beautician, is not
employed. She has a disability following breast cancer, with medical conditions of chronic
fibrosis, abdominal wall pain, and a restricted range of motion.
In the judgment, the district court found that Roger had a $42,567 yearly gross
income, that neither party was able to meet monthly expenses, and that Bonnie was unable
to provide adequate self-support without some maintenance from Roger and some
appropriate employment for herself. The district court therefore ordered permanent
spousal maintenance of $650 per month. The district court found, however, that, despite
her disability, Bonnie had the ability to work part time, earning at least $500 per month,
and that after attending a pain clinic, she could work “close to full time.” The district court
therefore found that she “must take some steps herself to provide for her own support,”
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including finding some employment within the range of her capabilities or attempting to
obtain Social Security disability.
In December 2012, the district court denied Bonnie’s motion to increase
maintenance, finding that she had established a need for increased maintenance, but that
Roger had no ability to pay additional maintenance. Bonnie, acting pro se, renewed her
motion in June 2015. After a hearing, the district court denied the motion. The district
court found that Bonnie’s only monthly income was maintenance of $710, with reasonable
monthly expenses of $1,970. The district court found that Roger’s average adjusted gross
monthly income over the last five years was $4,680; that he had recently had knee
replacement surgery, and it was unclear to what extent he would be able to resume his
carpentry work; and that he had reasonable monthly expenses of $5,772, an increase since
the judgment because he had borrowed against a home equity line of credit to fund
expenses, including his maintenance obligation. The district court found that Roger had a
shortfall of approximately $1,092 per month, Bonnie had a shortfall of approximately
$1,260 per month, and “the parties continue to be relatively equally burdened by their
negative cash flows.” The district court therefore concluded that Bonnie had failed to
establish a substantial change in circumstances to justify a change in maintenance under
Minn. Stat. § 518A.39, subd. 2 (Supp. 2015).
DECISION
This court reviews the district court’s decision on spousal-maintenance
modification for an abuse of discretion. Hecker v. Hecker, 568 N.W.2d 705, 709-10 (Minn.
1997). The district court abuses its discretion if it makes findings unsupported by the
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evidence or errs in applying the law. Dobrin v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn.
1997). A reviewing court will uphold a district court’s findings of fact unless they are
clearly erroneous. Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002). “Findings of fact
are clearly erroneous where an appellate court is left with the definite and firm conviction
that a mistake has been made.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn.
2008) (quotation omitted).
At the outset, we note that in this appeal, Bonnie also challenges portions of the
2009 judgment and the 2012 order denying her previous motion to increase maintenance.
But the times for appeal of the judgment and the earlier order have expired. See Minn.
Stat. § 518.145, subd. 1 (2014) (stating that a marriage dissolution is final when judgment
is entered); see also Minn. R. Civ. App. P. 104.01, subds. 1, 2 (specifying 60-day appeal
period from judgments and appealable orders). Therefore, those matters are not properly
before this court, and we will rule only on issues relating to the order currently on appeal.
Before the district court may modify a spousal-maintenance award, the moving
party must provide clear proof that, since the spousal-maintenance obligation was
established or last modified, a substantial change of circumstances has occurred that
renders the award unreasonable and unfair. Minn. Stat. § 518A.39, subd. 2; Beck v. Kaplan,
566 N.W.2d 723, 726 (Minn. 1997). Factors supporting maintenance modification include
“substantially increased or decreased gross income of an obligor or obligee” and
“substantially increased or decreased need of an obligor or obligee.” Minn. Stat.
§ 518A.39, subd. 2.
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Bonnie maintains that the district court ignored evidence of her continuing medical
condition and her increased financial need. She points out that although she has medically
qualified for Social Security disability benefits, she does not meet other requirements for
that program. But the district court noted its earlier finding that she should be able to
obtain some form of employment despite her disability, and it further found that she had
not yet secured employment outside the home. This finding is not clearly erroneous. And
although Bonnie has submitted evidence of increased financial hardship, that factor is only
one of several to be considered in addressing whether to increase a maintenance award.
See id. (stating factors to be examined in considering maintenance modification).
Bonnie argues that her children, although over 18, have lived with her while
attending college, and that she is no longer receiving child support. But expenses for
emancipated children are not properly considered to be expenses of a maintenance
recipient. Musielewicz v. Musielewicz, 400 N.W.2d 100, 103 (Minn. App. 1987), review
denied (Minn. Mar. 25, 1987). And termination of child support does not constitute a
substantial change of circumstances justifying a maintenance increase because a party’s
gross income does not include child-support payments received by a party. Minn. Stat.
§ 518A.29(e) (2014); see Lee v. Lee, 775 N.W.2d 631, 635 n.5 (Minn. 2009) (holding that
the provisions of section 518A.29 defining gross income apply to spousal maintenance).
Bonnie maintains that the district court improperly refused to consider her additional
documentation of financial hardship and disability, which she attempted to submit at the
district-court hearing but were rejected as untimely. See Minn. R. Gen. Pract. 303(a)(1)
(providing that “[n]o motion shall be heard unless the moving party” serves and files
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“[r]elevant signed, sworn and notarized affidavits and exhibits” “at least 14 days prior to
the hearing”). She alleges that the district court was biased against her because Roger
submitted documents a short time before the hearing. But Roger’s documents were timely
submitted five days before the hearing because they were responding to Bonnie’s motion.
See Minn. R. Gen. Pract. 303(a)(3) (stating that responsive documents must be served five
days before the hearing). Any failure to admit additional documentation into evidence did
not prejudice Bonnie because the district court allowed her to fully explain her allegations
of changed circumstances at the hearing. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d
542, 546 (1949) (stating that “error without prejudice is not ground for reversal”).
Bonnie challenges the district court’s findings with respect to Roger’s income and
debt. She argues that Roger’s federal tax returns submitted to the district court did not
accurately represent his gross income because he claimed excess tax deductions, artificially
reducing his income for maintenance purposes. We apply a clear-error standard of review
to the district court’s findings of a party’s income. Ludwigson v. Ludwigson, 642 N.W.2d
441, 446 (Minn. App. 2002).
“[I]ncome from self-employment or operation of a business” for maintenance and
support purposes is defined as “gross receipts minus costs of goods sold minus ordinary
and necessary expenses required for self-employment or business operation.” Minn. Stat.
§ 518A.30 (2014). The district court examined Roger’s federal tax returns from 2010-
2014, including the Schedule-C portion of the returns, which contains the information
required for determining income from self-employment. The district court then averaged
five years of Roger’s adjusted gross income from the returns and found his gross yearly
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income to be $56,161. Calculating average income over a time period may be appropriate
when the nature of employment causes income to fluctuate. Veit v. Veit, 413 N.W.2d 601,
606 (Minn. App. 1987). The district court did not err in its application of Minn. Stat.
§ 518A.30 to determine Roger’s income from self-employment.
Bonnie argues that it was improper for Roger to deduct attorney fees as a business
expense because they were not ordinary and necessary expenses. Although Roger’s tax
returns show that he did deduct attorney fees as a business expense in 2010, he did not do
so from 2011-2014. Here, Bonnie has failed to show that, even if the district court
improperly allowed a 2010 deduction for attorney fees, its determination of Roger’s
average income over a five-year period was clearly erroneous. See Vangsness v.
Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (stating that a party challenging a
district court’s factual finding on appeal has the burden to show that the finding is clearly
erroneous).
Bonnie maintains that the record contains no documentation of Roger’s business
and personal debt or the sale of a mini-storage business, which had previously produced
income to him. Although the record does not contain the Schedule A portions of Roger’s
tax returns, the district court’s attribution of debt to him is consistent with its finding that
he had increased mortgage debt due to borrowing against a home equity line of credit to
fund increased expenses, including his maintenance obligation. Further, we cannot
conclude that the district court abused its broad discretion by failing to require additional
evidence of Roger’s debt and proof of a business sale. See Kroning v. State Farm Auto.
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Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (stating that the district court has “broad
discretion” over evidentiary matters) (quotation omitted)).
Bonnie appears to argue that the district court was biased because it did not
sufficiently consider the evidence that she submitted and instead credited Roger’s evidence
on his income and expenses. But the district court implicitly found Roger’s income and
expenses to be credible, and we defer to the district court’s credibility determinations.
Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). An unfavorable ruling by itself
does not support a claim of judicial bias. Olson v. Olson, 392 N.W.2d 338, 341 (Minn.
App. 1986).
Bonnie finally appears to challenge the district court’s determination that both
parties share the burden of their inability to meet current expenses. But under current law,
“a spousal support award is based on the notion that the marital relationship involves an
economic partnership in which the spouses equally share the burdens and responsibilities
of both marriage and dissolution.” Erlandson v. Erlandson, 318 N.W.2d 36, 39 (Minn.
1982). On this record, the district court did not abuse its discretion by concluding that
Bonnie failed to show a substantial change in circumstances and by denying the motion to
modify maintenance.
Affirmed.
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