Abuzzahab v. Abuzzahab

KELLEY, Justice.

Respondent in this marital dissolution proceeding Faruk Said Abuzzahab appeals from the order of the district court denying his motion for a new trial, claiming that the court failed to properly consider a liability in reaching a distribution of marital property and that it abused its discretion in awarding permanent spousal maintenance in the amount of $4,000 per month to the petitioner Beverly Abuzzahab. We affirm the property distribution and reverse and remand the question of spousal maintenance.

The parties were married on June 29, 1962 in Washington D.C. and shortly thereafter moved to Minnesota to enable the respondent to obtain a post-graduate degree in pharmacology. Respondent is a board-certified psychiatrist who is presently engaged in the full-time practice of psychiatry and pharmacology. Four children were born during the marriage, three of whom remain unemaneipated. In addition, the parties adopted the child of the respondent’s deceased sister; that daughter is no longer a minor.

A stipulation executed by the parties provided for joint legal custody of the minor children, the physical custody of each of the minor children, liberal visitation rights and a valuation of several of the major marital assets. That stipulation was approved by the court and the substantial marital estate was essentially equally divided. The court awarded Beverly $4,000 per month as permanent spousal maintenance and $400 per month per child as child support for the two children in her physical custody.

1. The respondent first contends that the trial court abused its discretion in failing to recognize and credit to him as against the marital estate, a liability of $80,600, a prepayment for services to be performed by Psychopharmacology Fund, a research concern owned and operated by him. In our view, the fact that payment has been received but the work not yet performed does not require that the valuation of services be included as a liability against the marital estate. As a result, the property distribution, as challenged, shall stand.

2. The primary issue on appeal is whether the trial court abused its discretion in awarding $4,000 per month as permanent spousal maintenance to Beverly.

Minn.Stat. § 518.552, subd. 1 (1982) authorizes a trial court to award spousal maintenance if it finds that two criteria are satisfied, i.e., that the spouse:

(a) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, especially during a period of training or education, and
(b) Is unable to adequately support himself after considering all relevant circumstances through appropriate employment or is the custodian of a child whose condition or circumstances make it appro*14priate that the custodian not be required to seek employment outside the home.

Minn.Stat. § 518.552, subd. 1 (1982). Subdivision 2 of that section sets forth the factors to be considered by the trial court in determining the amount and duration of an award. Minn.Stat. § 518.552, subd. 2 (1982).

The record demonstrates that Beverly is a registered nurse, although she has not been so employed since the parties’ marriage. At the time of trial, she was enrolled in a course in real estate sales, intending to obtain her real estate license. She presently is employed by Merrill Lynch Realty as a sales person. Although she suffers from chondromalacia, an inflammation beneath the kneecap, her treating physician did not suggest that the condition would affect her employment. The trial court found that she has a maximum earning capacity of $18,000 to $22,000 per year. As a result, she is capable of attaining a degree of self-sufficiency through employment. Minn.Stat. § 518.552, subd. 1(b) (1982).

Moreover, under the distribution of marital property, the petitioner has sufficient property to provide for her reasonable needs, including the cash proceeds representing her share of the homestead equity and the cash payments due her as a result of the property settlement. Minn.Stat. § 518.552, subd. 1(a) (1982).

Under those circumstances, we conclude that a permanent award is not justified under either statutory or precedential authority and remand the matter to the trial court for further proceedings to establish the durational limitation of the award. See Otis v. Otis, 299 N.W.2d 114 (Minn. 1980). In so doing, we affirm the amount of the award, but direct the trial court to reexamine the criteria contained in section 518.552, subd. 2 (1982) for the purpose of its determination of the appropriate period for an award of temporary maintenance.

As we point out in McClelland v. McClelland, 359 N.W.2d 7 (Minn., filed November 30, 1984), filed herewith, the older dependent spouse who has a “traditional marriage” presents a special situation. The dissent in this case likewise stresses that the 1982 amendments to Minn.Stat. § 518.552 reflect this concern. If on remand the trial court determines from the record that it cannot clearly predict the success of the rehabilitation plan, it can, as suggested in McClelland, retain continuing jurisdiction to revise, if necessary, the amount and duration of the maintenance.

Affirmed in part; reversed in part and remanded for further proceedings consistent with this decision.