In re the Marriage of: Mark Wendell Hagen, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0151

In re the Marriage of: Mark Wendell Hagen, petitioner,
Appellant,

vs.

Carol Marie Hagen,
Respondent.

Filed February 5, 2018
Affirmed; motion granted
Hooten, Judge

Carver County District Court
File No. 10-FA-15-236

Mark Wendell Hagen, Chaska, Minnesota (pro se appellant)

Carol Marie Hagen, Chanhassen, Minnesota (pro se respondent)

Considered and decided by Hooten, Presiding Judge; Reyes, Judge; and Smith, T.,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant argues that the district court erred by basing a spousal maintenance award
on his earning capacity rather than his actual income , awarding permanent rather than
temporary maintenance to respondent, improperly trying to equalize the parties’ incomes,
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and awarding attorney fees to respondent. Respondent also moves for additional attorney
fees arising out of this appeal. We affirm and grant additional attorney fees.
FACTS
Appellant Mark Hagen and respondent Carol Hagen were married in 1998 and have
three children together. In May 2015 , appellant petitioned for a dissolution of their
marriage. The Carver County district c ourt conducted a dissolution trial in March 2016.
The parties resolved the issues of child custody, parenting time, and property division, but
tried the issues of child support, spousal maintenance, and the refinancing of the homestead
before the district court.
The following facts were either stipulated to by the parties prior to trial or were
submitted as evidence during the trial. Respondent has a high school diploma . In 1989,
she started a small in-home business and since that time has earned an income from the
business as the sole owner and employee. During the four tax years prior to the trial, the
district court found that respondent earned an average gross annual income of about $5,000
from the business. Since 1995 , she has not worked outside of her own business, and
throughout her marriage to appellant , she has been primarily responsible for raising their
three children and maintaining their home. A vocational evaluator testified at trial that
respondent, with her level of education and work experience , would be able to maintai n
full-time employment making a gross annual income of $27,685 per year. The district
court imputed to respondent the $27,685 annual income, or about $2,307 per month.
Appellant obtained a degree in Marketing and International Business from the
University of Colorado at Boulder in 1993. Over the following 15 years , he worked in
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several entry-level positions, never earning more than $37,000 per year. In 2008, appellant
started his own company, of which he has been the sole owner and through which he was
self-employed, working in the medical field as a n independent contractor for a variety of
different medical companies. The district court found that appellant’s average gross
income from the 2012 through 2015 tax years was $78,401 for short-term contract work
with different companies. However, in the year prior to the trial , appellant was unable to
obtain work as an independent contractor and he began seeking out employment as a
salaried employee of a medical compa ny. He claimed that because he was unable to find
employment as a salaried employee, he was only able to earn $9 per hour working 12 hours
per week at a liquor store in the months preceding trial. At trial, a vocational evaluator,
hired by appellant, testified that if appellant completed a 14 -week course, he could either
continue working in the medical field as a quality engineer with an average starting gross
annual salary of $54,198 or use his degree to work as a business analyst with an average
starting gross annual salary of $58,571. The district court imputed to appellant the $58,571
salary, or about $4,881.00 per month.
Appellant provided the district court with a budget that listed his monthly expenses
at $5,420.68. Respondent’s budget showed her monthly expenses at $3,530 per month.
The district court awarded respondent a permanent spousal maintenance award of $1,287
per month, bringing appellant’s imputed gross monthly income down to $3,594 and
respondent’s imputed gross monthly income up to $3, 594. The district court decided not
to award any child support because the parties shared equal custody and parenting time of
their children and each party’s gross monthly income w as the same after factoring in
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spousal maintenance. The district court also awarded respondent $ 3,500 in need-based
attorney fees. This appeal follows.
D E C I S I O N
I.
Appellant first argues that the district court abused its discretion in awarding
respondent a spousal maintenance award based on his earning capacity rathe r than his
income at the time of trial. A district court has broad discretion when making decisions
regarding spousal maintenance, and we review those decisions for an abuse of that
discretion. Melius v. Melius , 765 N.W.2d 411, 414 (Minn. App. 2009). Be cause a
determination of income is a finding of fact in the context of maintenance, we review those
determinations for clear error. Id. We review questions of law related to spousal
maintenance de novo. Id.
Appellant’s central argument is that the dis trict court erred by using his earning
capacity rather than his actual income in its calculation of spousal maintenance even though
there was no finding that his limited employment was in bad faith. However, this court
explained that a district court is r equired to “find bad faith or unjustifiable self -limitation
of income” in order to base an award of spousal maintenance upon the obligor’s earning
capacity. Id. at 415. While the district court never found that appellant acted in bad faith,
it explicitly found that appellant’s income was unjustifiably self-limited. The district court
explained that “ [w]hile [appellant] has not intentionally passed up employment
opportunities, his lackadaisical job search prevented [him] from finding possible
employment opportunities with an income commensurate to historical earnings.” Because
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the district court found th at appellant had unjustifiably self-limited his income, we hold
that the district court applied the correct legal standard.
Appellant does not explicitly challenge any of the factual findings on the issue of
imputed income. But he does argue that the district court did not consider his mental health
condition. We construe this to mean that appellant is challenging the district court’s finding
that he was “lackadaisical” in his job search because it did not consider that he suffered
from anxiety.
At trial, appellant testified that his anxiety had an impact on his ability to find a job,
and that he had struggled and had not “done as focused a job search as [he] otherwise would
have or as organized a job search.” The vocational evaluator testified that a person should
spend at least 20 hours per week seeking employment in order to be considered diligent in
their job search efforts. Appellant provided 13 emails that he sent to potential employers—
which he said was just a sampling of the emails he had sent out—but t he vocational
evaluator testified that sending out only 13 emails in an eight to nine-month span does not
constitute a diligent effort. While it is not clear from the record just how much time he
spent searching for a job or how many emails he sent out to potential employers, the district
court was in the best position to assess appellant’s credibility at trial. See Sefkow v. Sefkow,
427 N.W.2d 203, 210 (Minn. 1998) (stating that appellate courts defer to district courts on
credibility determinations). And the finding that appellant was lackadaisical is supported
by the result of his job search —at the time of trial appellant had failed to obtain new
contracts in the medical field, had not found permanent employment, and was working 12
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hours per week at a liquor store making $9 per hour. We hold that there was no clear error
in finding that appellant was lackadaisical in his job search.
Because the district court applied the correct legal standard in using his earning
capacity to calculate mainte nance and because the district court ’s finding that appellant
was lackadaisical in his job search was not clearly erroneous, we hold that the district court
did not abuse its discretion in awarding maintenance.
Appellant next argues that the spousal maintenance award should have been
temporary, not permanent, and that the district court did not give due regard to the statutory
factors for spousal maintenance. The spousal maintenance statute makes clear that the
district court can award “either temporary or permanent [maintenance], as the court deems
just . . . after considering all relevant factors.” Minn. Stat. § 518.552, subd. 2 (2016). The
statute also explains that:
Nothing in this section shall be construed to favor a temporary
award of mainte nance over a permanent award, where the
factors under subdivision 2 justify a permanent award.

Where there is some uncertainty as to the necessity of a
permanent award, the court shall order a permanent award
leaving its order open for later modification.
Id., subd. 3 (2016).
Appellant specifically argues that the district court erred by not properly considering
each of the eight factors listed in the maintenance statute. But, in our review of the district
court’s order, we conclude that there is no merit to this claim. The first factor deals with
the financial resources of the party seeking maintenance. Id., subd. 2(a). The district court
found that respondent’s budget of $3,530 per month was reasonable and noted that the
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vocational evaluator had put respondent’s gross monthly earning capacity at $2,307 per
month. The district court also noted that respondent was not able to enjoy the $300,000
homestead which appellant received when the parties divided their assets and had to seek
alternative housing. The second factor deals with the time necessary for the party seeking
maintenance to find appropriate employment. Id., subd. 2(b). The district court discussed
the results of respondent’s vocational evaluation and noted that the vocatio nal evaluator
believed that respondent could find full-time employment, given her current skills, within
six months. The standard of living established during the marriage is the third factor to be
considered by the district court. Id., subd. 2(c). The district court discussed both
appellant’s and respondent’s income during the marriage. The length of the marriage and
the length of a homemaker’s absence from employment is the fourth factor. Id., subd. 2(d).
The district court noted that the parties were married in 1998 . Other than her own small
business, respondent has not worked for any employer since 1995. The fifth factor
evaluates the employment opportunities forgone by the spouse seeking maintenance. Id.,
subd. 2(e). The district court explained that respondent had been out of the workplace since
1995 and has been primarily responsible for the care of the parties’ three children and
maintaining the home. The sixth factor examines the age, physical condition, and
emotional condition of the spouse seeking maintenance. Id., subd. 2(f). The district court
found that respondent was 52 years old at the time of trial and there is no indication in the
record or the district court’s findings that she had any physical or emotional conditions that
would impede her ability to work full time. The seventh factor looks at the ability of the
paying spouse to meet his or her own needs while meeting those of the spouse seeking
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maintenance. Id., subd. 2(g). The district court considered th is factor by discussing
appellant’s earning potential and the modifications that he would have to make to his
budget in light of his earning capacity in order to be able to meet his needs while making
appropriate maintenance payments. The eighth factor looks to each spouse’s contributions
to the value of the martial property , as well as a spouse’s contribution as a homemaker .
Id., subd. 2(h). The district court discussed respondent’s role in taking care of the parties’
children and home throughout the 18-year marriage.
Appellant also argues that the district court erred by trying to equalize the parties’
incomes. He cites to Snyder v. Snyder, 298 Minn. 43, 53, 212 N.W.2d 869, 875 (1973) for
this proposition. In Snyder, the obligee asked the district court to increase the maintenance
award in light of the obligor’s increased income, but the supreme court explained that
maintenance exists to help provide for the other party’s needs, not to act as a “lifetime
profit-sharing plan.” Id. (quotation omitted). In the case before us, the district court was
attempting to create a maintenance award that provides for respondent’s need s while
allowing appellant to have sufficient funds to meet his own needs. The district court
acknowledged, however, that the two parties did not have enough combined income for
both to be able to meet their current monthly budgets, and that an even split was the closest
that the district court could come to making sure that both parties had enough income to
meet their monthly needs . Because this was not an example of a “lifetime profit -sharing
plan” where the obligee would be receiving more than she needs according to the
maintenance statute, we hold that the district court did not abuse its discretion in
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formulating a maintenance a ward that results in both parties having the same monthly
income.
Appellant’s final argument is that the district court erred in ordering him to pay
respondent’s attorney fees. We review a district court’s award of attorney fees for an abuse
of discretion. County of Dakota v. Cameron , 839 N.W.2d 700, 711 (Minn. 2013). A
district court shall award attorney fees when it finds:
(1) that the fees are necessary for the good faith assertion of the
party’s rights in the proceeding and will not contribute
unnecessarily to the length and expense of the proceeding;
(2) that the party from whom fees, costs, and disbursements are
sought has the means to pay them; and
(3) that the party to whom fees, costs, and disbursements are
awarded does not have the means to pay them.
Minn. Stat. § 518.14, subd. 1 (2016). The district court found: that respondent “should not
have to deplete her property settlement in ord er to defend these proceedings,” that
respondent needed the award of attorney fees, and that appellant had the ability to pay the
award. The district court based its determination in part on the fact that appellant had
“maintained sole control over all marital resources since September 2015” and had “paid
some of his own fees from marital resources while [r]espondent has not.” We hold that the
district court did not abuse its discretion in awarding respondent need-based attorney fees.
II.
Respondent has also requested that we award her $15,000 in either need-based or
conduct-based attorney fees incurred during this appeal. We apply the same three factors
from Minnesota Statutes section 518.14 for a need-based award that we applied above: (1)
that the fees are necessary for the assertion of respondent’s rights, (2) that appellant can
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pay the fees, a nd (3) that respondent does not have the means to pay her own fees . We
agree that respondent, who does not have a full-time job and earns only a minimal income
from her business, should not have to deplete her assets in order to defend herself in these
proceedings. Appellant, on the other hand, has the ability to pay these attorney fees once
he sells the marital homestead as he has been ordered to do by the district court.
Respondent’s need for attorney fees is also demonstrated by the fact that after th e appeal
was filed, her attorney withdrew and respondent had to continue with the appeal pro se.
We will award attorney fees based on the work that respondent’s attorney completed
relevant to the appeal prior to her withdrawal. To determine the amount that should be
awarded, we are limited by the documents that we received from respondent. The only
relevant documents in the record were an itemized list of charges from respondent’s
attorney and an August 2016 affidavit found in the record —from a previou s request for
attorney fees only a few months prior to the appeal —stating that the attorney’s rate is
reasonable. The itemized list of charges included charges for work done on this appeal as
well as other matters involving respondent. In reviewing the itemized list and counting
only the charges related to this appeal, we determined that respondent was charged $4,455
by her attorney for work done on this appeal. The itemized list has the attorney’s rate listed
at $300 per hour and a paralegal rate of $150 per hour. These rates correspond to the rates
listed as reasonable rates in the affidavit found in the record . Accordingly, we award
respondent $4,455 in attorney fees for this appeal.
Affirmed; motion granted.