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This opinion will be unpublished and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
A18-0276

In re the Marriage of:

Nicholas James Davis, petitioner,
Appellant,

vs.

Theresa Anne Davis,
Respondent.

Filed December 31, 2018
Affirmed in part, reversed in part, and remanded
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-FA-15-700

Kathryn A. Graves, Jaime Driggs , Henson & Efron, P.A., Minneapo lis, Minnesota (for
appellant)

Kristafer E. Skjervold, Skjervold Law Office, Shorewood, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Smith, Tr acy M., Judge; and
Stauber, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Following a trial, appellant-hus band Nicholas James Davis was ordered to pay
respondent-wife Theresa Anne Dav is permanent spousal maintenanc e and wife was
ordered to pay husband child support. Husband was also ordered to pay wife’s attorney
fees. Husband appeals, challengi ng the spousal-maintenance awar d and the award of
attorney fees. Regarding attorney fees, we conclude that the district court did not abuse its
discretion in awarding wife need-based fees. Regarding spousal maintenance, we conclude
that the district court did not clearly err in the factual find ings challenged by husband but
did make a legal error in calculating the amount of spousal mai ntenance by considering
wife’s child-support obligation as an expense in determining her need. We therefore affirm
in part, reverse in part, and remand.
FACTS
Husband and wife married in 2004 and had four children, three of whom are minors.
Husband is a licensed master electrician who owns his own resid ential electric business,
Affordable Electric. Affordable Electric employs two other full -time electricians and two
staff members who work in the office. Wife worked different job s during the marriage,
including as a waitress, as a diet ary aide, and as a baker for a department store where she
worked from 2009 to 2014.
In 2014, wife became addicted t o prescription pain killers and , later, heroin.
According to husband, by the fall of 2014, she was unable to ma intain employment or
provide care for the children. On Christmas Day in 2014, wife came home incoherent and

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husband called the police. Wife was hospitalized, and a civil commitment proceeding was
initiated. Wife was civilly comm itted for chemical dependency, but the commitment was
stayed provided she remained in chemical-dependency treatment. W i f e b e g a n a t a
treatment center but left, without staff consent. On January 26 , 2015, the stay of
commitment was vacated, but wife d id not comply with the commit ment order or tell
husband her whereabouts.
In early February 2015, wife c ame to the parties’ home unannounced and took one
of their vehicles without husband’s knowledge. Soon thereafter, she was involved in a car
accident, in which she suffered injuries and which totaled the car.
That same month, husband started a dissolution proceeding agai nst wife but could
not locate her to serve her. Wife learned husband was trying to locate her and, in March,
signed an admission of service. Through court-related processes , the parties reached a
number of agreements, including t hat wife would have supervised parenting time; these
agreements were recorded in early June. Shortly thereafter, wif e had one supervised
parenting visit—her first contact with the children since the previous Christmas.
On June 22, wife was found in a car, overdosed on a number of drugs. Wife was
diagnosed with a major neurocognitive disorder as a result of the overdose, and the disorder
caused short-term memory loss. Wife was again civilly committed , and she was sent to a
state treatment facility to addre ss her chemical-dependency and mental-health issues.
During her time at that facility, she had several supervised visits with the children.
In December, wife was released fro m the state facility to a res idential treatment
facility. Within a day or two of arriving at the residential treatment facility, wife again left,

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against staff advice, and went missing for four months. She did not see the children during
this time period.
Wife again sought treatment in June 2016, entering an outpatien t program. In
August and September, wife par ticipated in settlement conferenc es regarding the
dissolution. The parties agreed on husband’s sole legal and phy sical custody of the
children, a division of property, and temporary support for wife.
Wife completed her outpatient program in October. She also too k other steps to
maintain her sobriety afterwards. At trial, she expressed her i nterest in obtaining a part-
time job.
A trial was held on March 22, 2017, on the issues not settled by the parties. Pursuant
to the judgment and decree filed on July 10, 2017, the district court ordered wife to pay
husband child support of $1,271 per month. It ordered husband t o pay wife permanent
spousal maintenance of $3,500 per month and to pay wife’s attor ney fees of $4,019.
Husband moved for amended findings, which the district court denied.
Husband appeals, challenging the spousal-maintenance and attorney-fees awards.
D E C I S I O N
I. Spousal Maintenance

An appellate court reviews a district court’s original award o f maintenance for an
abuse of the district court’s broad discretion. Curtis v. Curtis, 887 N.W.2d 249, 252 (Minn.
2016). A district court abuses its discretion 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. 199 7). A party challenging the district court’s findings of

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fact must show that they are “clearly erroneous.” Vangsness v. Vangsness , 607 N.W.2d
468, 474 (Minn. App. 2000). Findings are clearly erroneous if t he appellate court is “left
with the definite and firm conviction that a mistake has been m ade.” Id. at 472 (quotation
omitted). “[T]he appellate court vi ews the record in the light most favorable to the trial
court’s findings” when determining whether a clear error was made. Id.
A district court may award spousal maintenance if it finds tha t the spouse seeking
maintenance “lacks sufficient property, including marital prope rty apportioned to the
spouse, to provide for reasonable needs of the spouse,” Minn. S tat. § 518.522, subd. 1(a)
(2018), or “is unable to provi de adequate self-support . . . th rough appropriate
employment,” id., subd. 1(b); see also Lyon v. Lyon , 439 N.W.2d 18, 22 (Minn. 1989)
(stating that a maintenance award depends on a showing of need) . If the court decides
maintenance is appropriate, it then determines the amount and d uration of maintenance
after considering all relevant factors, including the financial resources of the party seeking
maintenance and that party’s abi lity to meet needs independentl y, and the ability of the
other spouse to pay maintenance while meeting needs. Minn. Stat . § 518.522, subd. 2
(2018). The district court thus considers the spendable income of the parties, see Sefkow v.
Sefkow, 427 N.W.2d 203, 216 (Minn. 1988), and the parties’ reasonable expenses, see
Kampf v. Kampf, 732 N.W.2d 630, 634 (Minn. App. 2007) (considering whether monthly
savings were a reasonable expense). Determining the amount and duration of maintenance
“is, in essence, a balancing of the recipient’s need against th e obligor’s ability to pay.”
Prahl v. Prahl, 627 N.W.2d 698, 702 (Minn. App. 2001).

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A. The district court’s factual findings are not clearly erroneous.
Husband does not dispute that spousal maintenance is appropria te; he challenges
only the amount and duration. We first address husband’s challenges to the district court’s
factual findings. He argues that the district court clearly erred in its findings regarding his
income, his monthly expenses, a nd wife’s income and that those errors had the effect of
overstating his ability to pay, and wife’s need for, spousal maintenance.
1. Husband’s self-employment income

Husband argues that the distric t court erred in calculating hi s income by not
appropriately considering his historical earnings. The district court found that husband’s
annual self-employment gross income was $198,364 ($16,530 per m onth). That finding
was based on husband’s income tax returns for years 2011 throug h 2015, which showed
the following amounts:
Year Self-Employm ent Gross Income
2011 $123,767
2012 $111,143
2013 $28,348
2014 $178,146
2015 $218,582

The district court did not take into account husband’s 2013 inc ome because it found the
figure to be an outlier and not reflective of his overall incom e over five years. The court
also found that husban d’s income had been steadily increasing. Finally, it found that the
last two years most accurately reflected husband’s current inco me. The district court thus
averaged the incomes from those years ($178,146 and $218,582) to $198,364.

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Husband argues that the district court’s finding was clearly e rroneous. He argues
that the district court cherry-picked years and that, instead, all five years’ incomes should
be averaged, which would result in a gross income of $131,997.
The only legal authority that husband cites in support of his argument is Veit v. Veit,
413 N.W.2d 601 (Minn. App. 1987). In Veit, this court held that the district court had
properly included “a financially disastrous year” for the obligor’s business in averaging his
income. Id. at 606. As this court explained in Veit, average income over a long period of
time can “take[] into account fluctuations and more accurately measure[] income.” Id.
However, husband cites no authority requiring that a determina tion of income
always be based on a long-term average. In Sefkow v. Sefkow , t h i s c o u r t h e l d t h a t t h e
calculation of average income did not constitute a determination of current income because
the income was increasing substantially each year. 372 N.W.2d 37, 48 (Minn. App. 1985),
remanded on other grounds, 374 N.W.2d 733 (Minn. 1985). When, as in Sefkow, there is
a consistent trend of increasing income or decreasing income over the years, a district court
does not abuse its discretion by not using an average income based on all of the years.
In this case, the district cour t found that, after removing the outlier of $28,348 from
the analysis, husband’s annual self-employment income had been “steadily increasing.”
The court’s finding is a reasonable reading of the data provide d by husband. Husband’s
2013 income is 82% less than the average of his income in the other four years. And, if the
2013 income is not taken into account, husband’s income dropped 10% from 2011 to 2012
and then increased in subsequent years by 37% and 18%. That is a 15% annual increase on

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average. On this record, the district court did not clearly err in finding that husband’s annual
self-employment income was $198,364.
2. Husband’s mon thly expenses

Husband argues that the district court erred in not including health-insurance
premiums in his reasonable monthly expenses. The district court found that husband’s
monthly expe nses were $9,095. Husband initially included in his budget premium
payments totaling $1,161.85 per month ($376.09 for himself and $785.76 for the minor
children), as shown in an Octob er 2016 billing statement from h is private insurer. The
district court, however, found th at husband’s corporation, not husband personally, was
paying the premiums for him and his children, and removed the payments from his monthly
expenses.
The district court relied on thr ee pieces of evidence. First, the October 2016 billing
statement identified Affordable E lectric as the group under whi ch husband, with
dependents, was holding his priv ate-insurance policy. Second, an explanation of benefits
from his insurer, dated March 9, 2017, listed Affordable Electr ic as husband’s “group.”
Third, and most importantly, husband did not claim any self-employment health-insurance
deductions on his tax returns for years 2011 through 2015.
Husband points to two pieces of countervailing evidence. The f irst is his trial
testimony that he was not obtaining insurance through his busin ess in 2014 and 2015
because he and his family were on public health insurance. That testimony tends to explain
why the tax returns did not show any self-employment health ins urance deductions.
However, that testimony does not establish whether, since 2016, husband has paid private-

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insurance premiums personally, as he alleges. The second is his paystubs. He first offered
the paystubs on his motion for am ended findings. The paystubs s howed that Affordable
Electric deducted premium payments for the group private-insurance plan from husband’s
salary. The district court, howev er, declined to take this evid ence into account because it
w a s n o t p a r t o f t h e t r i a l r e c o r d. The district court’s decision w a s c o r r e c t . “ W h e n
considering a motion for amended findings, a district court mus t apply the evidence as
submitted during the trial of the case and may neither go outsi de the record, nor consider
new evidence.” Zander v. Zander , 720 N.W.2d 360, 364 (Minn. App. 2006) (quotation
omitted), review denied (Minn. Nov. 14, 2006).
During the trial, husband failed to provide evidence that he p ersonally paid the
insurance premiums. Therefore, there is no clear error in the d istrict court’s finding that
Husband’s monthly expenses were $9,095.
3. Wife’s annual employment income

Husband challenges the district court’s finding of wife’s inco me. The district court
found that wife would be able to work 15 to 20 hours a week, ea rning $10 per hour. It
therefore found wife’s annual emp loyment income to be $9,096 ($ 758 per month).
Husband argues that the finding of $758 gross per month was a c lear error because it was
not based on evidence in the record.
Husband does not argue that there is no evidence supporting th e district court’s
finding. He concedes that the district court relied on some evi dence in the record: wife’s
past employment with Target and her subsequent brain injuries. From 2009 to 2014, wife
worked as a baker for Target earning $13 per hour. In 2014, wif e became addicted to

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controlled substances and subsequently sustained brain injuries that were found, through a
neuropsychological evaluation, to prevent her from maintaining significant employment.
Based on these pieces of evidence, the district court rejected husband’s argument that wife
would be able to work 20 hours a week earning $13 per hour. The court specifically found
that wife would no longer be able to earn $13 per hour because she is no longer able to
work in a relatively skilled position such as baker.
Given that the prevailing minimum wage was $9.50 in Minnesota, the district court
estimated wife’s hourly rate to be $10. Husband challenges this estimation, arguing that
the court had no basis to pinpoint the $10 figure. Husband’s argument is correct in that the
court, based on the same evidence, could have picked $11 or $12 instead. But the fact that
“the record might support findings other than those made by the trial court does not show
that the court’s findings are defective.” Vangsness, 607 N.W.2d at 474. In order to
successfully challenge a district court’s findings of fact, “the party challenging the findings
must show that despite viewing that evidence in the light most favorable to the trial court’s
findings . . . , the record still requires the definite and fir m conviction that a mistake was
made.” Id. The record did not require the district court to conclude that wife would be able
to work for $11 or $12 per hour.
Therefore, there was no clear error in the district court’s fi nding that wife’s annual
employment income would be $9,096.

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B. The district court erred in determining wife’s need.

Husband also argues that the district court made an error of l aw by considering
wife’s child-support obligation in determining the amount of wi fe’s need for spousal
maintenance.
The district court factored in the spousal-maintenance award o f $3,500 to its income
and expense findings and netted the tax consequences to see if the balance was struck. The
results were as follows:
Variable Amount
Husband’s annual net income $109,954 ($9,163 per month)
Husband’s monthly expenses $9,095
Wife’s annual net income $45,443 ($3,787 per month) 1
Wife’s monthly expenses $2,468

As shown in the table, spousal maintenance of $3,500 would result in wife having a surplus
of $1,319 every month. The distr ict court justified the surplus by taking into account the
child-support obligation of $1,271 that it imposed on wife. Hus band argues that child-
support payments should not be considered part of wife’s budget in calculating the amount
of spousal maintenance.
Spousal maintenance is “an awa rd made in a dissolution . . . proceeding of payments
from the future income or earnings of one spouse for the suppor t and maintenance of the
other.” Minn. Stat. § 518.003, subd. 3 a (2018) (emphasis added). A d istrict court may

1 Wife’s annual net income reflects the subtraction of $3,916 for FICA tax, calculated based
on gross income of $51,186. Wife’s FICA tax must be recalculated on remand because, as
husband argues, FICA tax is imposed only on “wages” received by an individual “with
respect to employment.” 26 U.S.C. § 3101(a), (b) (2012 & Supp. III 2015).

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award spousal maintenance if it finds that the party seeking ma intenance lacks sufficient
property to provide for the “reasonable needs of the spouse” or sufficient income to provide
“adequate self-support.” Minn. Stat. § 518.552, subd. 1(a)-(b) (emphasis added). The
statutory spousal-maintenance pr ovisions thus require considera tion of the needs of the
spouse, not the needs of the ch ildren. Children’s needs are ins tead accounted for in the
child-support calculation.2 See Minn. Stat. §§ 518A.26-.79 (2018).
Husband cites two unpublished opinions of this court, in which we reversed a
district court for considering children’s expenses in determini ng a spouse’s needs. In
Pnewski v. Pnewski , the district court included the children’s “haircuts, school lunches,
daycare, activities and equipmen t, and cell-phone expenses” in the husband’s monthly
expenses when it calculated the amount of his spousal-maintenance award. No. A17-1521,
2018 WL 2470362, at *5 (Minn. App . June 4, 2018). We held that the district court had
improperly applied the spousal-maintenance statute because the “statute only refers to the
needs of the spouse, not the needs of the children.” Id. (citing Minn. Stat. §§ 518.003, subd.
3a, .552, subd. 1(a)). The case was remanded for recalculation of spousal maintenance. Id.
Similarly, in Hermer v. Cisek, the child’s private-school tuition was included in the
wife’s monthly expenses when the court calculated the amount of her spousal-maintenance
award. No. A16-0482, 2017 WL 958473, at *1 (Minn. App. Mar. 13, 2017). Hermer is

2 The spousal-maintenance statute indicates that some child-supp ort payments can be
considered in determining the financial needs of the party seeking maintenance. Minn. Stat.
§ 518.552, subd. 2(a) (2018) prov ides: “[T]he financial resourc es of the party seeking
maintenance . . . includ[e] the extent to which a provision for support of a child living with
the party includes a sum for that party as custodian.” This cir cumstance, however, is not
present here.

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even more akin to the instant ca se because, there, the wife’s m onthly expenses were
increased, accounting fo r the share of the child’s tuition that the husband had agreed to
pay. Id. at *2. Essentially, the husband was required to pay his share of the child’s tuition
as part of the spousal-maintenance obligation. He challenged this arrangement on appeal,
arguing that “using permanent spousal maintenance as the vehicl e for enforcement of his
obligation to pay half of Child’s private-education expenses [w a]s improper.” Id. W e
remanded the case for recalculation for the same reasons explained in Pnewski. Id.
Although unpublished opinions of t his court are not precedenti al, Minn. Stat.
§ 480A.08, subd. 3(c) (2018), we find Pnewski and Hermer persuasive. The only difference
in this case is that a child-support obligation, as opposed to a specific child-rearing expense,
was included in wife’s monthly expenses. But that difference does not provide a reason to
distinguish this case from Pnewski or Hermer.
Husband also asserts that the district court should have deter mined spousal
maintenance before calculating child support. In determining ba sic child support, the
district court must determine each parent’s gross income. Minn. Stat. § 518A.34(b)(1). As
part of this determination, spous al maintenance is added to the maintenance recipient’s
income, Minn. Stat. § 518A.29(a), and subtracted from the maint enance payor’s income,
Minn. Stat. § 518A.29(g). Once the parents’ incomes are determined, the district court then
computes and determines appropriate child support. Minn. Stat. §§ 518A.34-.36.
Husband argues that, by “confla ting the concepts of spousal maintenance and child
support,” the district court inappropriately shifted the burden from wife to husband to
address the emancipation of the parties’ children. He asserts t hat, normally, the child-

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support obligor would be incentivized to bring a motion to redu ce support to reflect the
emancipation of each child, but h ere, because wife’s maintenance award funds her child-
support obligation, she will not be as incentivized to reduce her support obligation. Instead,
husband will have to bring motion s to reduce wife’s child suppo rt upon emancipation of
the children in order to reduce his spousal-maintenance obligat ion. We agree that the
district court’s order prejudici ally results in this burden shi fting. It is noteworthy that, in
Hermer, we also found the husband’s burden-of-making-a-motion argumen t persuasive.
2017 WL 958473, at *2. He argued that the district court’s deci sion was “unfair to him
because he w[ould] have to move the district court for modifica tion of maintenance to
eliminate the private-education expense from respondent’s maintenance award after Child
graduates high school,” while “[a] child support obligation, by contrast, expires by
operation of law.” Id.
Because the district court erred in taking into account wife’s child-support
obligation in calculating the amount of spousal maintenance to award her, it abused its
discretion on this issue.
C. The district court did not err regarding wife’s alleged “des tructive
behavior.”

Husband also argues that the dis trict court erroneously failed to “factor in the
damage . . . Wife’s destructive behavior [had] caused to the ma rital estate and Husband’s
financial resources as required by Minn. Stat. § 518.552, subd. 2(h).” The “destructive
behavior” referred to here is the fact that, in 2014, wife with drew funds totaling $52,000
from the parties’ joint bank account and the Affordable Electric account to purchase drugs.

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However, the district court did consider that fact. The court s pecifically found that the
reduction in value of the marital assets caused by wife was unfortunate but irrelevant to the
outcome. That was because husband had “substantial yearly incom e from which he can
afford to pay [wife] a modest amount of maintenance.” In other words, the loss of assets
did not substantially diminish husband’s income-producing capacity. The district court did
not abuse its discretion on this issue.
D. The district court did not err in making maintenance permanent.
Husband also argues that the district court erred in making sp ousal maintenance
permanent. Under Minn. Stat. § 518.552, subd. 3 (2018), “[w]her e 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.” In this c ase, the district court found
that “there is uncertainty as to whether [wife] will eventually become self-supporting, as
she suffers from substantial memory loss stemming from her traumatic brain injuries which
has impaired her ability to work and earn an income to be fully self-supporting.” The court
elaborated:
[Wife] provided substantial credible evidence that she suffers
from serious memory loss that has impaired her ability to work
and earn a fully self-supporting income. [Wife] was found by
the Social Security Administr ation to qualify for Social
Security Disability Income benefits, which are awarded where
the recipient’s disabilities are severe and the recipient is
prevented from doing work over a substantial period.

Husband does not dispute any of these facts. There was more than “some uncertainty” that
a permanent award would be necessa ry in this case. Minn. Stat. § 518.552, subd. 3. The
district court did not err.

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E. Conclusion regarding spousal maintenance
In sum, the spousal-maintenance award must be recalculated in accordance with this
opinion. Because the new maintenan ce award may significantly im pact the parties’
financial positions, the district court should also decide whether the award of child support
should be adjusted.
II. Attorney Fees
“The standard of review for an appellate court examining [a ne ed-based] award of
attorney fees is whether the district court abused its discretion.” Gully v. Gully, 599 N.W.2d
814, 825 (Minn. 1999). In a proc eeding under the marriage-disso lution and the child-
support statutes,
the court shall award attorney fees, costs, and disbursements in
an amount necessary to enable a party to carry on or contest the
proceeding, provided 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 (2018).
Husband takes issue with the district court’s findings of fact regarding wife’s and
his respective abilities to pay. Ag ain, in order to successfull y challenge a district court’s
findings of fact, the party challenging the findings must show that they are “clearly
erroneous.” Vangsness, 607 N.W.2d at 474.

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First, husband argues that it wa s clearly erroneous to find that wife lacked the means
to pay her attorney fees because the district court was unsure of how much was remaining
from wife’s earlier settlement a ward of $32,000. Wife testified she had $5,000 left, but
there was some inconsistency between wife’s trial testimony and her earlier deposition
testimony. Acknowledging this inconsistency in the evidence, the district court nonetheless
found that wife had insufficient liquid assets to pay her attor ney fees. The district court
must have found that wife had used most of her settlement funds, although she might have
had more than $5,000 remaining. We see no clear error in the di strict court’s finding. See
Straus v. Straus, 94 N.W.2d 679, 680 (Minn. 1959) (“Conflicts in the evidence . . . are to
be resolved by the [district] court.”).
Second, husband argues that the district court clearly erred i n ascertaining his liquid
assets and monthly income. The district court found that various assets of husband’s could
be used to pay wife’s attorney fees. Husband disagrees on the grounds that the assets either
belong to his corporation, are h is share of the property divisi on, or are reserved for other
uses. However, even assuming that those assets are off limits, we do not conclude that the
district court clearly erred in f inding him able to pay wife’s attorney fees. As the district
court specifically noted, husband “was employed by his corporation at the time of the trial,
making $198,360 per year conserva tively.” Husband’s substantial monthly income was
sufficient to justify the district court’s finding of his ability to pay.
Our reasoning is further bolstered by the fact that wife “was unemployed and[,]
based on the record, it [was] unlikely she [would] be able to w ork any more than a part-
time retail position.” The distri ct court’s determinations rega rding wife’s need and

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husband’s ability to pay were reasonable in light of the record, although the court did not
describe in detail how husband could comfortably pay the $4,019 fee. See Ludwigson v.
Ludwigson, 642 N.W.2d 441, 448-49 (Minn. App. 2002) (“[A] court does not always need
to make separate findings to award attorney fees based on need.”). The award of attorney
fees is affirmed.
Affirmed in part, reversed in part, and remanded.