Marriage of McClelland v. McClelland

WAHL, Justice

(dissenting in part, concurring in part).

I respectfully dissent from that portion of the majority opinion which reverses the trial court’s award of permanent maintenance. For reasons I have set out at length in Abuzzahab v. Abuzzahab, 359 N.W.2d 12, filed today, it is clear that the legislature responded to our decision in Otis v. Otis, 299 N.W.2d 114 (Minn.1980), by its 1982 amendments to Minn.Stat. § 518.552, and repudiated Otis to the extent that it emphasized rehabilitative maintenance to the exclusion of permanent maintenance:

Subd. 2. The maintenance order shall be * * * either temporary or permanent, as the court deems just, * * * after considering all relevant factors including:
* ⅝ * * * *
(b) * * * [Tjhe probability, given the spouse’s age and skills, of completing education or training and becoming fully self-supporting;
* ⅝ ⅝ * * sfc
(d) The duration of the marriage, and, in the case of a homemaker, the length of absence from employment and the extent to which any education, skills, pr experience have become outmoded and earning capacity has become permanently diminished.

Minn.Stat. § 518.552, subd. 2 (1982) (clarifying amendments underlined).

In light of the unmistakable legislative intent spelled out- in these amendments, and under the facts of this case and of Abuzzahab, the trial court was not compelled, as a matter of law, as the majority holds in effect it was, to award no permanent maintenance. The facts of the two cases are remarkably similar. Among other similarities, there are 20-year marriages during which the skills of the wives became *12outmoded and their earning capacity permanently diminished as they devoted themselves to full-time homemaking and child-rearing; four' children, with the custody of at least two minor children with the mother; and husbands who are professionals with annual incomes of over $200,000. In both cases, the amount of maintenance would be subject to reduction when the women return to the work force full time. The trial court has continuing jurisdiction in such matters. To suggest that the trial court consider “retaining continuing jurisdiction,” as the majority opinion does after reversing that court’s grant of permanent maintenance, does nothing more than shift the burden of getting an attorney and going back into court onto the woman who may by that time be making $18,000-$20,-000 a year, or less. There are limits, of course. In Broms v. Broms, 353 N.W.2d 135 (Minn.1984), we held that an award of temporary maintenance for a period longer than 5 years was an abuse of discretion where the party awarded maintenance was a 32-year-old college graduate in general good health who needed 2 years of graduate study to pursue a career in her chosen field and where nothing in the conditions and circumstances of the party’s children made it appropriate to delay completion of her education and entry into the work force. That is not this case, nor is it the Abuzzahab case. Under the McClelland facts, and under the Abuzzahab facts, the award of permanent maintenance was not an abuse of the broad discretion of the trial court. I would affirm.