In re the Marriage of:

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0150

In re the Marriage of:

Laura Diane Hermer, petitioner,
Respondent,

vs.

Lawrence James Cisek, Jr.,
Appellant.

Filed December 17, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-FA-14-1364

Kay Nord Hunt, Lommen Abdo, P.A., Minneapolis, Minnesota (for respondent)

James J. Vedder, Brittney M. Miller, Moss & Barnett, Minneapoli s, Minnesota (for
appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Ro denberg, Judge;
and Reilly, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant-husband challenges the district court’s order denyin g his motion to
terminate spousal maintenance and granting respondent-wife’s motion to increase spousal

2
maintenance. Because appellant fa ils to demonstrate that the di strict court abused its
discretion in determining the need for and amount of spousal maintenance, we affirm.
FACTS
Although this case involves only one party’s appeal from the di strict court’s order
deciding the parties’ respective motions to modify spousal main tenance, the case has a
somewhat complicated history, consideration of which is necessary to the analysis.
Appellant Lawrence Cisek (husband ) and respondent Laura Hermer (wife) were
married in 1999, separated in 2014, and divorced in 2015. Their dissolution case was tried
over four days across several months in early 2015.
Husband is a physician, and wife is a law professor. Until movi ng to Minnesota in
2012, the parties lived in Texas. At trial, the parties agreed that husband’s salary at the time
was $420,000 per year but disputed what husband’s salary would be for the remainder of
2015 and into the future. On the final day of trial, husband in troduced evidence that his
salary would decrease to $300,000 per year, effective July 1, 2015. The district court found
that husband’s salary would, in fact, decrease to $300,000. The parties did not dispute that
wife’s then-current salary was $96,898 per year.
Both parties introduced budgets at trial in an effort to prove the marital standard of
living. Wife claimed $9,342 in m onthly living expenses, of whic h $1,691 was for the
parties’ minor child. Husband claimed $19,496 in monthly living expenses, of which
$2,251—an amount that included the cost of the child’s private-school tuition—was for the
minor child.

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In its order for judgment and decree (the initial order), the d istrict court adjusted
both parties’ budgets in order to determine what their reasonable monthly living expenses
were. Significantly, the district court explained most of its a djustments to wife’s budget,
and some of its adjustments to husband’s budget, by referencing “the parties’ financial
circumstances.” The district court found wife’s reasonable mont hly living expenses to be
$7,950, to which the court added the cost of the child’s private-school education, for a total
of $10,050 per month. It found that husband had reasonable mont hly living expenses of
$12,356. After awarding wife ch ild-support of $1,077 per month, the district court found
that wife had a net monthly income of $7,262 and that husband had a net monthly income
of $13,101. The district court awarded wife permanent spousal maintenance of $3,375, an
amount that was premised on the inclusion of the child’s educational costs in wife’s budget.
Following the initial order, the parties filed cross-motions fo r amended findings.
The district court granted in part and denied in part those mot ions, in an amended order.
The amended order did not change the award of either child supp ort or spousal
maintenance. Husband appealed. In March 2017, this court revers ed the district court’s
award of spousal maintenance, hol ding that ordering maintenance to pay for the child’s
educational expenses was improper.
On August 1, 2017, following remand, the district court filed t wo separate orders:
one concerning the parties’ postremand motions that were not re lated to the appeal, and a
second amended order for judgment and decree (the second amende d order) dealing with
spousal maintenance and child support in accordance with this court’s opinion. The district
court did not, at that time, accept new evidence relating to th e parties’ financial

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circumstances, so the second ame nded order was based on the evi dence that had been
presented at trial. The district court awarded wife $1,000 per month in maintenance and
$1,210 per month in child support and separately ordered the pa rties to divide the cost of
the child’s private-school tuition between them.
In the meantime, husband had move d back to Texas, where his inc ome had
immediately increased to $620,000 per year. Wife’s salary had a lso increased, although
less dramatically; as of July 2017 she was paid $110,243 per year. In August and September
2017, immediately after issuance of the district court’s second amended order, the parties
moved for modification of the award of spousal maintenance base d on changed
circumstances, with husband requesting that maintenance be term i n a t e d a n d w i f e
requesting that it be increased to $2,979 per month.
In December 2017, the district court filed its order on both mo tions (the
modification order). The district court found that husband’s gr oss monthly salary was
$51,667 and that wife’s gross m onthly salary was $9,187, exclud ing child support. The
court did not make any findings as to the parties’ net salaries after taxes or other unbudgeted
expenses. The court found that its prior reduction of wife’s bu dget had been based on
husband’s decreased salary in 2015, that the reduction had brought wife below the marital
standard of living, and that wife’s unadjusted budget from the trial reflected the marital
standard of living. It also found that wife’s increased salary was “anticipated or necessary”
and so did not justify a reduction in maintenance. Finally, the court found that the parties
had experienced a substantial ch ange in circumstances and that wife should no longer be
required to live below the marital standard of living. The district court increased the award

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of maintenance to $2,000 per mont h. The district court also inc reased husband’s child-
support obligation to $1,359 per month, which husband does not challenge.
Husband appeals the modification order, challenging both the district court’s refusal
to terminate his maintenance obl igation and its decision to inc rease the amount of that
maintenance.
D E C I S I O N
An appellate court reviews a district court’s decision regardin g whether to modify
an existing maintenance award for an abuse of discretion. Hecker v. Hecker, 568 N.W.2d
705, 709-10 (Minn. 1997). A district court abuses its discretio n regarding maintenance if
its findings of fact are unsupported by the record or if it improperly applies the law. Dobrin
v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn. 1997) (citing Sefkow v. Sefkow, 427 N.W.2d
203, 210 (Minn. 1988)). “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). Legal questions are reviewed de novo. Kampf v. Kampf , 732 N.W.2d 630, 633
(Minn. App. 2007), review denied (Minn. Aug. 21, 2007).
Modification of spousal maintenance is governed by Minn. Stat. § 518A.39 (2018).
A party seeking to modify spousal maintenance bears “a dual burden.” Hecker, 568 N.W.2d
at 709 (discussing Minn. Stat. § 518.64 (1996), since renumbered to Minn. Stat. § 518A.39
and amended in ways that are not relevant here). The party must show, first, “a substantial
change in one or more of the circumstances identified in the statute” and, second, that the
change makes the initial award “unreasonable and unfair.” Id. Only one statutorily
identified circumstance is present in this case: “substantially increased . . . gross income of

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an obligor or obligee.” Minn. Sta t. § 518A.39, subd. 2(a)(1). E ach party argues that the
income of the other has substantially increased.
When considering whether to modify, the district court is instr ucted to “apply, in
addition to all other relevant factors, the factors for an award of maintenance under section
518.552 that exist at the time of the motion.” Minn. Stat. § 51 8A.39, subd. 2(e). Though
the statute itself is not clear on this point, caselaw suggests that these factors are relevant
to the determination of whether an award is unreasonable or unfair. See Peterka v. Peterka,
675 N.W.2d 353, 359 (Minn. App. 2004) (recognizing that an initial award may be unfair
if the obligee cannot meet the mar ital standard of living—one f actor in Minn. Stat.
§ 518.552); Cisek v. Cisek, 409 N.W.2d 233, 236 (Minn. App. 1987) (instructing that, when
considering whether to modify maintenance, the court must consi der the factors for an
award of maintenance), review denied (Minn. Sept. 18, 1987). Two of the factors from
section 518.552 are critical for the purposes of this appeal: first, “the financial resources of
the party seeking maintenance . . . and the party’s ability to meet needs independently,”
and, second, “the standard of living established during the mar riage.” Minn. Stat.
§ 518.552, subd. 2(a), (c) (2018 ). We therefore consider whethe r, in light of the marital
standard of living, wife’s financial resources, and her ability to meet her needs, the district
court abused its discretion in d etermining that the existing aw ard was rendered
unreasonable and unfair by husband’s increased income.

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I. The district court did not ab use its discretion by granting wife’s motion for
increased spousal maintenance.

Husband raises three arguments in contending that the district court abused its
discretion by granting wife’s motion for increased spousal main tenance. We do not
presume that the district court has erred; the party asserting error has the burden of showing
it. Horodenski v. Lyndale Green Townhome Ass’n , 804 N.W.2d 366, 372 (Minn. App.
2011) (citing Midway Ctr. Assocs. v. Midway Ctr. Inc., 237 N.W.2d 76, 78 (1975)). Thus,
we will not reverse unless husband can affirmatively establish the asserted errors. See
Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65 (1944).
A. Husband has not shown that the district court failed to cons ider wife’s
receipt of child-support payments when calculating her need.

First, husband argues that it was error for the district court, in determining how
much wife needed to maintain the marital standard of living, to rely on a budget that
included expenses related to their minor child without accounting for the fact that wife was
receiving child support. Husband argues that the district court should have either:
(a) “determined what amount of sp ousal maintenance Wife would n eed to meet only her
expenses,” or (b) “determined what amount of spousal maintenance and child support Wife
would need to meet her expenses and the minor child’s expenses.” (Emphasis added.)
However, husband has failed to demonstrate that the district court did not do exactly
what he says it should have done in (b). The district court fou nd that, between the second
amended order and the modification order, wife’s gross monthly income had increased by
14%. Although the district court did not state whether it was taking into account her receipt

8
of child support or not, two factors indicate that child suppor t was likely accounted for in
determining wife’s need.
First, the court described the increase as being to wife’s inco me, not wife’s salary.
In the second amended order, the court was careful with its language: it used “salary” when
it meant salary, and it used “income” to refer to salary plus other forms of income, such as
child support. Husband does not provide argument as to why it s hould be different in the
modification order. And, while it is true that wife’s gross salary increased by 14% between
the second amended order and the modification order, her gross salary plus child support
also increased by 14%. Thus, the court’s mention of the 14% increase does not necessarily
mean that it was referring to salary when it said income.
Second, the parties’ submissions to the district court supporti ng their respective
motions to increase and to terminate spousal maintenance always included both child-
support payments as income and child-related expenses as budget items. It seems unlikely
that the district court would, on its own, exclude from its cal culations something that had
consistently been included by both parties and not say that it had done so. Further, husband
provides no argument as to why it would have.
Because husband has not shown tha t the district court actually failed to include
child-support payments as income to wife when calculating what she needed to meet her
and the child’s expenses, husband has failed to meet his burden under Horodenski, 804
N.W.2d at 372. We therefore reject husband’s argument.

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B. Husband has not shown that the district court erred in inter preting its
own findings regarding the marital standard of living.

Husband’s next argument is that the district court clearly erred by finding that wife’s
unadjusted budget—rather than the adjusted budget—represents th e parties’ marital
standard of living. See Minn. Stat. § 518.552, subd. 2(c). He contends that the real r eason
for the district court’s downward adjustments of wife’s trial budget was that her trial budget
overstated the marital standard of living. He argues that, by r elying on the unadjusted
budget in ruling on the motions to modify, the district court improperly improved upon the
marital standard of living.
A district court’s order is ambiguous if reasonable minds can d iffer about what it
means. Suleski v. Rupe , 855, N.W.2d 330, 339 (Minn. App. 2014). The meaning of an
ambiguous provision in an order is a fact question, so a district court’s interpretation of an
ambiguous provision is reviewed for clear error. Id. A district court’s construction of its
own decree receives “great weight” on appeal. Johnson v. Johnson, 627 N.W.2d 359, 363
(Minn. App. 2001), review denied (Minn. Aug. 15, 2001). This is true even if the judge
who is interpreting the order is not the same judge who wrote the order. Id.
Husband points to several passage s in the second amended order as proof that the
dissolution court’s adjustments to wife’s budget were made to bring it closer to the marital
standard of living. The district court explained most of its adjustments to wife’s budget by
referring to “the parties’ current financial circumstances.” It found that, following those
adjustments, the budget reflected “petitioner’s reasonable monthly living expenses.” When
adjusting husband’s budget, the court said that one of his expe nses “appears to be

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overstated,” a comment that was not made about any of wife’s bu dget items. The district
court did not state whether wife ’s adjusted or unadjusted budge t actually reflected the
marital standard of living. Thus , reasonable minds could differ about whether the phrase
“reasonable monthly living expenses,” in context, meant that wi fe’s adjusted budget
reflected the marital standard of living or rather some sustain able level below the marital
standard of living. Either interpretation is plausible, and the second amended order’s
finding as to the marital standard of living is therefore ambiguous.
Because the second amended order’s finding as to the marital st andard of living is
ambiguous, its meaning is a ques tion of fact, and the district court’s factual finding as to
its meaning is given great weight. See Johnson, 627 N.W.2d at 363. Husband raises two
arguments for why we should hold that the district court erred in its interpretation of the
second amended order. First, he contends that other language in the second amended order
proves that the parties’ marital standard of living was best reflected by the adjusted budget,
and, second, he argues that a combined income of $400,000 per y ear best reflects the
parties’ marital standard of living.
Husband’s first argument relies on a single sentence from the s econd amended
order. He contends that, because t he district court found that “[t]he parties’ combined
claimed living expenses far exceed even their combined net mont hly incomes,” wife’s
budget must have overstated the marital standard of living. This argument ignores the fact
that the second amended order reduced wife’s budget by roughly $1,400 per month while
reducing husband’s budget by ov er $7,000 per month. Simply put, most of the excess
claimed expenses were in husband’s budget, and the sentence he points to does not clarify

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whether the overstated expenses were husband’s, or wife’s, or b oth. Further, the sentence
in question does not identify whet her the expenses were “overst ated” because they
exaggerated the marital standard of living or because they exce eded the parties’ reduced
ability to pay the expenses, or b oth. The sentence thus provid es little support for his
argument that wife’s trial budget overstated the marital standard of living.
Husband’s second argument is also unpersuasive. He contends tha t, if the district
court based the parties’ marital standard of living on his havi ng income in excess of
$330,000 per year, that finding was error. He argues that, as a matter of law, the marital
standard of living must be based only on the parties’ income at the moment of divorce or
on the average income over the w hole of their marriage. Since h usband’s income at the
time of the divorce was $300,000 per year, and his average inco me over the whole of the
marriage was $330,000 per year, he contends that basing the marital standard of living on
anything more than $330,000 in income for him would be error. This argument appears to
challenge findings in the second amended order, from which the time for appeal has passed.
However, we will interpret husband’s argument as contending that it was clear error for the
district court to interpret its second amended order as making a finding that was contrary
to law.
The law does not support husband’s argument that the marital st andard of living
must be based on some particular time period during the marriage. This court has affirmed
district courts’ determinations both that a recent financial re versal lowered the parties’
standard of living, and that a recent increase in the standard of living would be disregarded
when the rest of the marriage was characterized by a “modest” standard of living. Compare

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Robert v. Zygmunt , 652 N.W.2d 537, 545 (Minn. App. 2002), review denied ( M i n n .
Dec. 30. 2002), with Katter v. Katter, 457 N.W.2d 750, 754 (Minn. App. 1990). In another
case, this court approved of a district court’s findings when they focused on the three years
prior to separation. See Melius v. Melius , 765 N.W.2d 411, 417 (Minn. App. 2009).
Importantly here, we have held that “a sub-marital-standard-of- living maintenance award
may be initially equitable” and that a subsequent modification of maintenance bringing the
obligee spouse up to the marital standard of living may also be appropriate if later changes
in circumstances support such a modification. See Peterka, 675 N.W.2d at 359. Together,
these cases indicate that there is no hard-and-fast timeframe for calculation of the marital
standard of living—rather, determ ination of the relevant timefr ame is left to the district
court’s discretion. Cf. In re Custody of M.J.H. , 913 N.W.2d 437, 443 (Minn. 2018)
(rejecting a bright-line rule for determining whether a request to change parenting time was
actually a motion to modify custody in part because it conflict e d “ w i t h t h e g o v e r n i n g
principle that a district court has broad discretion in determi ning custody and parenting
time matters”); Curtis v. Curtis, 887 N.W.2d 249, 254 (Minn. 2016) (declining to adopt a
bright-line rule for how to calculate potential investment inco me from distributed marital
property when evaluating a spouse’s ability to provide adequate self-support because such
a rule would be “inconsistent with a district court’s broad discretion”).
Here, the district court heard testimony from the parties as to their expenses and
standard of living. Wife’s testimony was that her trial budget reflected the marital standard
of living. This evidence is suffi cient to support the district court’s finding, particularly in
light of the district court’s opportunity to evaluate the credibility of the parties. See LaPoint

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v. Family Orthodontics, P.A., 892 N.W.2d 506, 515 (Minn. 2017). We cannot say that the
district court abused its discretion in determining, in its second amended order, that wife’s
unadjusted budget reflects the marital standard of living. Beca use the district court’s
interpretation of the second amended order does not make that o rder contrary to law, we
reject husband’s second argument.
C. Husband has not shown that the increased spousal maintenance exceeds
wife’s need.

Husband’s third argument is that, even if wife’s unadjusted bud get is deemed to
properly reflect her reasonable expenses at the marital standar d of living, the modified
amount exceeds her need. To reiterate, husband’s burden as the appellant is to show this
court, based on the record, where the district court’s error li es. See Horodenski , 804
N.W.2d at 372. Husband’s brief presents several calculations in support of his argument;
all purport to show that wife can meet her needs with either no spousal maintenance or
with the maintenance awarded in the second amended order.
In one version of these calculations, husband points to three facts. First, between the
trial and the modification at issue here, wife’s salary increas ed from $96,898 per year to
$110,243 per year. This works out to an increase of $1,112 per month. Including the change
to child support in the modification order, wife’s gross monthly income increased by about
$1,261 per month. Second, the difference between wife’s budget in the second amended
order, $7,950 per month, and her budget in the modification ord er, $9,262 per month, is
$1,312. Third, the second amende d order states that wife could meet her budget with her
salary, $1,000 per month in maintenance, and $1,210 in child support. Husband argues that,

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because the increases in wife’s income cover all but $50 of the increase between her
reasonable expenses in the sec ond amended order and the reasona ble expenses in the
modification order, it was error for the district court to incr ease the maintenance payment
by $1,000. The problem with this calculation, however, is that it does not account for any
tax on the increase to wife’s income and instead assumes that t he entire increase in gross
income becomes take-home pay.1
In another calculation, husband points to wife’s cash-flow calc ulations, submitted
in support of her motion for modification of the spousal mainte nance awarded in second
amended order. Wife’s calculati o n s u s e t h e p a r t i e s ’ i n c o m e s a s of 2017, use their
unadjusted trial budgets, include $1,000 in maintenance and $1, 210 in child support, and
also include a substantially inc reased retirement contribution for both parties. Husband
disputes some of these assumptions and creates his own calculat ion. He adjusts wife’s
income by adding the retirement contribution and subtracting her child support award, then
he adjusts her budget by removing nonincurred expenses and child-related expenses while
adding a smaller retirement contribution. Based on this calcula tion, he concludes that
wife’s income exceeds her reasonable expenses at the marital st andard of living by $376
per month.

1 At oral argument, counsel for h usband contended that the effect of taxes on this income
would be low, because wife’s “blended” tax rate—that is, the av erage tax on each dollar
she earns, accounting for credits, deductions, and progressive taxation—was relatively low.
This ignores the fact that increased income does not change the value of those credits and
deductions, and that each dollar in increased income is taxed at the last-dollar rate, not the
blended rate. Wife’s blended ta x rate would need to be recalcul ated including the new
income, and re-applied to every o ther dollar, in order for it t o accurately reflect the tax
effects of wife’s increased income.

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This calculation, too, is flawe d. Husband removes all child-rel ated expenses from
wife’s budget and all child-support payments from wife’s income. Husband had previously
argued that it was equally accep table to include both child-rel ated expenses and child-
support payments. But wife’s chi ld-related expenses exceed her child-support income by
$400. Thus, by preferring one equally-acceptable-to-husband met hod of calculation over
the other, husband’s calculation appears to reduce wife’s need by $400. Relatedly, husband
subtracts from wife’s unadjusted budget both the full amount of the minor child’s expenses
and $80 that are no longer incurred. But $60 of that $80 amount was for childcare, so that
amount is double-counted. Husband reduces wife’s retirement con tribution from $1,500
per month to $202. Two-hundred-two dollars was equal to 2.5% of her salary at the time
of trial, but not 2.5% of her salary at the time of the modific ation hearing, resulting in a
difference of $37. Husband’s calculation also does not account for the tax effects of
reducing the retirement contribution—while the $1,500 per month were deducted tax-free
in wife’s budget, husband’s calculation assumes that all $1,500 will be spendable by wife
and simply subtracts $202 after taxes to show the effect of wife’s retirement contribution.
Wife points out many of these problems but does not present a complete cash-flow
or tax calculation based on what she claims are the correct ass umptions. She admits that
the district court denied her request for $1,500 per month in r etirement contributions, but
she does not identify any record evidence of how removal of tha t contribution affects her
taxes. The closest that she comes is a paragraph laying out her argument for how the court’s
ordered maintenance and child s upport give her either $289 in e xcess of her budget or a
$200 shortfall, depending on how certain costs are counted. Bey ond the fact that it

16
expresses some expenses as annua l figures and others as monthly figures, the most
significant problem with the analysis is that it does not clearly explain how its tax costs are
calculated. Instead of showing the math on how to arrive at what she argues is the correct
amount, wife simply argues that this court can take judicial no tice of the tax tables and
determine her spendable income as a matter of law. Even if this court were to take judicial
notice of the tax tables, actually calculating wife’s tax oblig ation requires assumptions
about inclusions and deductions, not all of which have been fou nd by the trial court or
agreed upon by the parties. Bec ause making such assumptions wou ld amount to fact-
finding, we decline to do so. See Nelson v. Schlener, 859 N.W.2d 288, 294 (Minn. 2015)
(“[T]he court of appeals is not a trier of fact.”).
Wife, however, need not convince this court that the district c ourt correctly
calculated her need; husband must persuade us that it erred. See Horodenski, 804 N.W.2d
at 372. Husband’s arguments fail to account for several factors when calculating wife’s
need, particularly the effect of taxes on income that husband attributes to wife. As a result,
we are unpersuaded that the district court erred in determining that wife needed $2,000 per
month in maintenance in order to meet the marital standard of living.
II. The district court did not a buse its discretion in denying husband’s motion to
terminate spousal maintenance to wife.

Husband contends that the district court abused its discretion in denying his motion
to terminate spousal maintenance. Since it was not error for th e district court to conclude
that wife was entitled to an incr ease in maintenance of $1,000 per month, it is readily
apparent that the district court did not err in refusing to terminate maintenance. Husband’s

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contention that wife no longer has a need for spousal maintenan ce turns on his assertion
that the district court’s order modifying maintenance did not r estore wife’s budget to the
marital standard of living but instead erroneously improved upo n the marital standard of
living. Because we hold that the district court did not err in determining that wife’s
unadjusted budget reflected the marital standard of living, we affirm the district court’s
ruling that husband’s maintenance obligation should not be terminated.
Affirmed.