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This opinion will be unpublished and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
A18-0694

In re the Marriage of:

Lakmini Yamuna Herath, petitioner,
Respondent,

vs.

Susantha Herath,
Appellant.

Filed June 3, 2019
Affirmed
Smith, Tracy M., Judge

Stearns County District Court
File No. 73-FA-15-7094

Farhan Hassan, Courtney E. Latcham, Clausen & Hassan, LLC, St. Paul, Minnesota (for
respondent)

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

Considered and decided by Smith, Tracy M., Presiding Judge; Ha lbrooks, Judge;
and Larkin, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
After more than 20 years of ma rriage and following lengthy diss olution
proceedings, the marriage of appellant Susantha Herath (husband) and respondent Lakmini

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Herath (wife) was dissolved. I n its judgment and decree, as mod ified by several post-
dissolution orders, the district court found husband to have dissipated certain marital assets
and accounted for the dissipation in its marital-property distribution, imposed a property-
equalizer payment on husband and set a schedule for that paymen t, ordered husband to
acquire life insurance for the benefit of wife, and ordered hus band to pay wife permanent
spousal maintenance. Husband challenges these obligations on various grounds. In a cross-
appeal, wife challenges the district court’s refusal to award her attorney fees. We affirm.
FACTS
Husband and wife were married in 1993. In early 2015, wife peti tioned to dissolve
the marriage. Following disputes over discovery, wife moved to compel responses.
Consecutive rounds of supplementation and claims of deficiency followed; wife’s demands
also expanded somewhat to encompass documents supporting husban d’s deposition
testimony.
The district court’s initial scheduling order called for the co mpletion of discovery
by January 1, 2016, with a trial date in June 2016. That schedu le was not followed. In
February 2016, wife moved the c ourt to join husband’s brother, to compel husband “to
completely answer” wife’s interrogatories and requests for prod uction, and for conduct-
and need-based attorney fees. Further discovery motion practice continued into March.
In a May 2016 order, the district court denied wife’s motions f or joinder and for
conduct-based attorney fees but granted her motions to compel discovery on 16 specific
matters and for need-based attorn ey fees. It also denied husban d’s request for conduct-
based attorney fees.

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A two-day trial took place in February 2017. In June 2017, the district court issued
its findings of fact, conclusions of law, order for judgment, a nd judgment and decree. It
found that husband had gross monthly income of $15,995 and reas onable monthly living
expenses of $5,875 and that wife had a stipulated-to gross mont hly income of $2,063 and
reasonable monthly expenses of $3,925. The court awarded wife $ 1,862 per month in
permanent spousal maintenance.
The district court also found that husband had dissipated nearly $400,000 in marital
assets by transferring cash to h is one of his brothers and two other people. This sum
represented transfers over the course of 15 years. The district court found that the transfers
were “in contemplation of divorce.” The district court’s findin gs supporting this
determination included that husband had admitted to thinking about divorcing wife as early
as 2001 or 2002, that husband’s e xplanations for the transfers were unpersuasive or
contradicted his other testimony, and that wife neither knew of nor consented to the
transfers.
The district court also made findings regarding the parties’ marital interests in three
pieces of real estate. The real properties were: 2716 Edward—th e home that the parties
lived in until the dissolution wa s final and that was deeded to husband’s brother; 1605
25th—a property deeded to husband and his brother; and 114 Camelot—a property jointly
owned by husband and three other members of his family, in whic h he had a one-third
interest. The court found that the parties did not have a marital interest in 2716 Edward but
did have a marital interest in one-half of 1605 25th and in one -third of 114 Camelot. It

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awarded these marital interests to husband, subject to a marita l lien securing a property
equalizer to wife.
The district court reserved mak ing findings on several issues b ecause it could not
determine, on the evidence submitted, what the value of certain property was as of
December 31, 2016, the valuation date. Specifically, it reserved the division of debts, the
amount and terms of a property-equalizer payment, and the terms of marital liens. It also
reserved the issue of any award to wife of need- or conduct-based attorney fees. The court
instructed the parties to submit additional information so that it could determine these
reserved matters.
Based on the additional information, the district court supplem ented its June order
in October 2017. The district court ordered a property-equalize r payment to wife, to be
paid in quarterly installments. The court limited wife’s marital lien on husband’s property
interests to the amount owing on the property equalizer until it was paid off. It also required
husband to secure the property equalizer and his maintenance ob ligation with a life-
insurance policy of $500,000, to be reduced to $250,000 when the equalizer was paid off.
The district court declined to award need-based attorney fees to wife because it found that
wife would receive sufficient a ssets in the property equalizer t o p a y h e r f e e s . A n d i t
declined to award wife conduct-ba sed attorney fees because it f ound that husband’s
conduct had not unreasonably contributed to the length or expense of the proceeding.
Both parties moved for amendment of the district court’s findin gs of fact,
conclusions of law, and order. Husband also submitted an amended motion for amendment,
accompanied by an affidavit stating that he could not afford the life insurance. The district

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court declined to consider husband’s amended motion because it was untimely. The district
court granted in part and denied in part the parties’ motions.
In its order, the district cour t amended the property distribut ion, instructing that
husband’s retirement account be d ivided equally between the par ties. It also adjusted the
dissipated assets downward to fix a double-counting error—speci fically, a sum that was
paid to husband’s brother had be en treated as evidence that cer tain property was in fact
marital property, but that sum had also been counted as dissipa ted. The district court
reduced the dissipated assets by that sum. Based on these adjus tments to the property
distribution, the district court amended the property-equalizer amount and payment plan,
ordering husband to pay a total equalizer of $234,100 by making an initial payment of
$34,900, followed by quarterly installments of $12,500 until the full balance was paid. The
district court also amended certain findings of fact to reflect these changes and to clarify
its order. Finally, the district court reduced the life-insurance requirement to $250,000 until
the property-equalizer obligation was satisfied and $50,000 the reafter. The amended life-
insurance requirement did not mention husband’s maintenance obligation.
Husband appealed, arguing that the district court clearly erred in finding that his
transfers of cash constituted dissipation of marital assets and abused its discretion in setting
the property-distribution plan, requiring life-insurance covera ge, and awarding spousal
maintenance. Wife cross-appealed, arguing that the district cou rt abused its discretion by
awarding her neither need- nor conduct-based attorney fees.

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D E C I S I O N
I. The district court did not c learly err in finding dissipation of marital assets.
Parties to a dissolution owe each other “a fiduciary duty . . . for any profit or loss
derived by the party, without the consent of the other, from a transaction or from any use
by the party of the marital assets.” Minn. Stat. § 518.58, subd. 1a (2018). The district court
may attribute dissipated assets to the party who “transferred, encumbered, concealed, or
disposed of” them. Id.
Under Minnesota statute, dissipa tion occurs when “a party to a marriage, without
consent of the other party, has in contemplation of commencing, or during the pendency
of, the current dissolution, separation, or annulment proceeding, transferred, encumbered,
concealed, or disposed of marital assets except in the usual co urse of business or for the
necessities of life.” Id.; see, e.g. , Baker v. Baker , 753 N.W.2d 644, 653 (Minn. 2008)
(quoting the statute when describing the test for dissipation); Risk ex rel. Miller v. Stark ,
787 N.W.2d 690, 698 (Minn. App. 2010) (same), review denied (Minn. Nov. 16, 2010).
The parties agree that the statute establishes a four-element t est for determining whether
dissipation has occurred: (1) a transfer or disposition of marital assets; (2) without the other
party’s consent; (3) “in contem plation of commencing . . . the current dissolution . . .
proceeding; and (4) the transfer or disposition was not “in the usual course of business or
for the necessities of life.”
Whether a party has dissipated ma rital assets is a question of fact. See Minn. Stat.
§ 518.58, subd. 1a (“If the court finds . . .” (emphasis added)). Appellate courts review a
district court’s factual findings for clear error, viewing the evidence in the light most

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favorable to the district court’ s findings and reversing only i f the record “requires the
definite and firm conviction that a mistake was made.” Vangsness v. Vangsness , 607
N.W.2d 468, 474 (Minn. App. 2000).
Husband does not dispute the district court’s finding that he transferred or disposed
of marital assets or the finding that he did not have wife’s consent. Rather, husband argues
that the district court clearly erred by finding that the trans fers were in contemplation of
commencing dissolution proceedings and by finding that the transfers were not in the usual
course of business.
A. Contemplation of commenc ing dissolution proceedings
Husband relies on two facts to argue that the district court cl early erred in finding
that he made the transfers in contemplation of dissolution. These facts are, first, that wife,
and not he, commenced the dissolution proceeding and, second, that the transfers began 15
years before the dissolution proceeding. Husband argues that it is unreasonable to conclude
that he was engaged in a 15-year scheme aimed at reducing the p roperty available for
division, while simultaneously acquiring income and property th at would be subject to
division in the event of a dissolution, all while waiting for his wife to commence dissolution
proceedings against him. The only published caselaw husband cites for this proposition is
Bollenbach v. Bollenbach , 175 N.W.2d 148, 155 (Minn. 1970), which he quotes for its
statement that the purpose of the dissipation statute is to prevent parties from “subvert[ing]
the orderly processes of the c ourts by concealing, dissipating, or misusing assets . . . in

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anticipation of [dissolution] so as to reduce the property avai lable for division.” 1 B u t
neither of the facts he cites rules out the possibility that he was acting in contemplation of
commencing dissolution proceedings.
First, this court has recognized that a party who does not init iate a dissolution may
nonetheless dissipate assets before the dissolution proceeding begins. Risk, 787 N.W.2d at
694, 698 (declining to disturb t he district court’s implicit fi nding that the non-initiating
party to a dissolution proceeding had dissipated assets in contemplation of commencing a
dissolution proceeding before the initiation of the dissolution ). Second, Bollenbach does
not support husband’s argument. Husband argues that because it would be irrational to
describe the totality of his conduct since 2001 or 2002 as a plan to cheat wife in dissolution,
nothing that he did during that period can be properly understood as done in contemplation
of commencing dissolution proceedings. Bollenbach s a y s t h a t t h e p u r p o s e o f t h e
dissipation statute is to prevent parties from hiding assets to avoid division—it does not
require the singleness of purpose that husband argues is absent here. 175 N.W.2d at 155.
Nor does any case interpreting th e present statute suggest that singleness of purpose is
required. Given husband’s admitted contemplation of dissolution, his inability to produce
any documentary evidence of his purported debt to third parties , and the
unpersuasiveness—as found by the d istrict court—of his testimony about the transfers, it

1 Bollenbach concerns dissipation under the common law; it predates enactme nt of the
dissipation statute. Compare 1991 Minn. Laws ch. 266, § 5, at 1197 (adding dissipation to
statutory law in 1991) with Bollenbach, 175 N.W.2d at 155 (decided in 1970). The extent
to which Bollenbach illuminates the meaning of the statute is thus questionable, but, in any
event, as we discuss below, Bollenbach does not support husband’s position.

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was not clearly erroneous for the district court to find that h usband dissipated assets in
order to conceal those assets if his wife chose to commence dissolution proceedings against
him. Thus, husband has not shown that the district court clearl y erred in finding that
husband made the transfers in contemplation of commencing dissolution proceedings.
B. Usual course of business
Husband also argues that the dis trict court’s finding that the transfers were not in
the usual course of business is clearly erroneous because it is inconsistent with two other
findings of the court—specifically, that husband and his brothers “shared and intermingled
funds and investments in real estate” and that they “transferre d funds and ownership of
assets between them as necessary to suit each other’s interests and purposes, to include this
dissolution proceeding.” Husband argues that, because the district court found that he and
his brothers routinely shifted the ownership of intermingled assets among themselves, any
transfers were in the ordinary c ourse of business and were not “solely for the purpose of
dissipating marital assets in c ontemplation of divorce.” But th is argument misstates the
district court’s findings in two ways.
First, the district court did not hold that the transfers were “solely” intended to
dissipate marital assets, nor was it required to—dissipation ca n have a purpose other than
dissipation itself. In Carrick v. Carrick, 560 N.W.2d 407, 409, 413 (Minn. App. 1997), a
wife admitted that she cashed ce rtain certificates of deposit, withdrew money from
accounts, and took two trips to Las Vegas for gambling purposes . Gambling and losing
marital assets was held to con stitute dissipation, even though gambling is not an activity
that one undertakes solely to lose money. Similarly, in Baker, payment of legal fees with

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marital funds was deemed to be dissipation, even though it was not done “solely” to
dissipate the assets but, presumably, to pay off the fees. 753 N.W.2d at 653-54. Even if
husband is correct that his payments to his brother were not solely intended to make marital
funds unavailable to wife, that fact is not fatal to the finding of dissipation.
Second, the district court did not find that the brothers’ transfers among themselves
were “in the usual course of bus iness”; it simply found that th e brothers made transfers
with some degree of regularity. Under the common law, expenditu res were in the usual
course of business if they did not “conceal, squander or misuse marital assets.” Volesky v.
Volesky, 412 N.W.2d 750, 753 (Minn. A pp. 1987). In one recent case, a dissenting judge
of this court, discussing an issue not reached by the majority, indicated that expenditures
are in the usual course of business within the meaning of the s tatute if they are made for
“legitimate” reasons. Kremer v. Kremer, 889 N.W.2d 41, 61 (Minn. App. 2017) (Hooten,
J., dissenting). It is self-evident that transfers intended to conceal the true ownership of
assets are not made for “legitimate” reasons. Such transfers do not become “the usual
course of business” merely because they are done consistently o r over a long period of
time, or because not all of the transfers were intended to conc eal marital assets. Husband
has not shown that the district court clearly erred in holding that husband’s transfers were
not in the usual course of business.
Because neither of the district court’s findings on the challen ged aspects of
dissipation is clearly erroneous, the district court did not clearly err in finding that husband
had dissipated marital assets.

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II. The district court’s property division was not an abuse of discretion.
District courts have broad discre tion over the division of mari tal property in a
dissolution “and will be reversed only for a clear abuse of dis cretion.” Reynolds v.
Reynolds, 498 N.W.2d 266, 270 (Minn. App. 1993). Husband argues that the district court
abused its discretion in distributing the parties’ marital property because the plan created a
large equalizer payment that he lacks the liquidity to pay and the district court did not
account for the costs of liquidating the property he was awarded.2
A district court must consider the tax consequences of a proper ty-distribution plan
if “the sale of real estate ‘is required or is likely to occur within a short time after the
dissolution.’” Reynolds v. Reynolds , 498 N.W.2d 266, 271 (Minn. App. 1993) (quoting
Aaron v. Aaron , 281 N.W.2d 150, 153-54 (Minn. 1979)). Similarly, if a distric t court’s
order in effect requires a party to reallocate assets in a way that incurs taxes, the effects of
those taxes must be accounted for. See Curtis v. Curtis, 887 N.W.2d 249, 250, 257 (Minn.
2016) (remanding where the district court refused to award spou sal maintenance because
the property division, if converted into income-producing property, would meet the needs
of the party seeking maintenance but did not calculate the tax costs of such a conversion).

2 Husband also argues that the dis trict court’s property distrib ution was an abuse of
discretion because the court orde red him to pay a property equa lizer of $234,100. If the
terms of the court’s order are added up, he is required to pay $234,900. But the apparent
typographical error in the first installment—it was likely intended to be $34,100 instead of
$34,900—does not necessarily result in husband paying more than he owes. The order
requires payment “until the full balance has been paid.” The extra $800 paid up-front may
be able to be subtracted from the final equalizer payment. Even if the error actually requires
husband to pay $800 more than he s hould, that error is de minim is and not a basis for
remand. See Risk, 787 N.W.2d at 693-94 & n.1 (refusing to remand for correction of a $400
error with respect to a property valued at $99,000).

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Husband argues that the property division effectively required him to liquidate the
real estate he was awarded and that the district court’s failure to consider whether he could
afford the payments it ordered without liquidating real estate was an abuse of discretion.
Husband identifies the financial obligations that he claims lim it his ability to pay the
equalizer: $1,862 per month in mai ntenance, $5,775 for his own living expenses, $4,167
per month for the equalizer payment, and “expensive life insurance coverage.” But husband
does not identify his claimed net income. And husband does not appear to have ever laid
out before the district court the relationship between his income and the costs imposed on
him by the district court’s plan . He argued to the district cou rt that his gross income was
reduced by his obligation to pay taxes, maintenance, and marita l debt, but he did not
actually calculate his income and expenses. There is therefore no factual basis on which to
conclude that husband can or ca nnot afford the equalizer paymen t without selling real
estate. See Hafner v. Hafner , 406 N.W.2d 590, 592-93 (Minn. App. 1987) (declining to
reverse based on asserted costs of sale where one party was awa rded real estate and the
other was awarded a property equalizer, because no evidence was presented to the district
court whether the property equalizer was affordable).
Husband has not shown that the district court abused its discre tion in refusing to
amend the property-distribution equalizer payment plan.
III. The district court did not abuse its discretion by requiri ng life insurance as
security.

Husband argues that the district court abused its discretion in t w o wa ys whe n i t
required him to secure the property equalizer with life insuran ce: first, by not limiting the

13
required amount of insurance to the outstanding amount of the e qualizer and, second, by
not evaluating the cost of the insurance.
A. Required amount of insurance
The district court’s judgment requires that husband maintain a life-insurance policy
with a face value of at least $250,000, with wife as the sole irrevocable beneficiary “for as
long as he owes an obligation to pay the property equalizer pay ment.” Once the equalizer
is paid in full, husband is required to maintain life insurance of $50,000 for wife; this
smaller policy is not explicitly tied to any of husband’s other obligations. Husband argues
that the district court abused its discretion by not limiting t he insurance obligation to the
amount of the property equalizer that remains owing as the equalizer is paid down.
A requirement that a party provide security against nonpayment of the property
settlement is “an inherent part of the property division.” Landwehr v. Landwehr , 380
N.W.2d 136, 140 (Minn. App. 1985). District courts have broad d iscretion over marital
property divisions; we will not reverse the district court’s di vision of marital property
absent an abuse of that discretion. Chamberlain v. Chamberlain , 615 N.W.2d 405, 412
(Minn. App. 2000). So long as the district court’s division of marital property has “an
acceptable basis in fact and principle,” we will affirm that division. Walswick-Boutwell v.
Boutwell, 663 N.W.2d 20, 22 (Minn. App. 2003) (quotation omitted).
We conclude that the life-insurance obligation is justified by two separate rationales.
The first is that $200,000 of the life-insurance policy is inte nded to secure husband’s
obligation to pay wife a property equalizer. This purpose is ap parent for two related
reasons. First, once the property equalizer is fully paid, the life-insurance obligation is

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reduced by $200,000. Second, the district court’s payment plan for the property equalizer
begins with husband paying wife $ 34,900—such a payment will bring the amount owing
to almost exactly $200,000, aligning the starting value of the life insurance with the amount
husband owes. We do not see an abuse of discretion in requiring husband to maintain
$200,000 of life insurance until the equalizer is fully satisfied. Although the district court’s
order does have the potential for creating a windfall for wife (if husband dies after having
paid some, but not all, of the equalizer), it is not unreasonab le for the district court to
incentivize husband’s prompt payment of his obligation by imposing this burden.
The second rationale for the life-insurance obligation is that the remaining $50,000
after the equalizer is paid is to secure husband’s spousal-main tenance obligation. The
district court has authority to order security for maintenance payments. Minn. Stat.
§ 518A.71 (2018). While the use of life insurance to provide such security was once limited
to exceptional cases, that test has been eliminated. Kampf v. Kampf, 732 N.W.2d 630, 635
(Minn. App. 2007), review denied (Minn. Aug. 21, 2007). Courts now look to the effect of
a loss of maintenance on a maintenance obligee’s ability to self-support when determining
whether to require life insurance as security. See id. at 635-36 (holding that the district
court abused its discretion by not requiring life insurance to secure maintenance for a 52-
year old obligee with a high-school degree, limited work experience, and expected income
of $14,872 per year).
Husband disputes that the $50,0 00 insurance requirement is inte nded to secure
spousal maintenance, arguing that , because the district court d eleted a reference to his
maintenance obligation when ame nding its order, the $50,000 mus t not be tied to

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maintenance and must simply be i ntended as a windfall for wife. But the only reasonable
interpretation of the order is that the remaining $50,000 of hu sband’s life-insurance
obligation is tied to his mainten ance obligation, because that is the financial obligation
remaining after the equalizer is paid. On this particular recor d, we conclude that the
deletion of the reference to spous al maintenance from the previ ous order does not
undermine this conclusion. The dis trict court redlined its post -trial order, identifying the
changes it was making to its previous order—deletions were struck through, additions were
underlined. But the language con necting the life-insurance obli gation to husband’s
maintenance obligation simply disappeared, suggesting that its deletion may have been
unintentional. Moreover, neither party was objecting to the fac t that the order required
husband to secure his maintenance obligation with life insurance, so the district court had
no apparent reason to reconsider that aspect of its order. Thus , d e s p i t e t h e a b s e n c e o f
language explicitly connecting th e remaining $50,000 insurance obligation to husband’s
maintenance obligation, we conclude that the additional $50,000 life-insurance obligation
continues to be tied to husband’s obligation to provide maintenance to wife.
B. Cost of insurance
Husband also argues that the district court abused its discretion by failing to account
for the cost of supplying life in surance. When a district court i m p o s e s a l i f e - i n s u r a n c e
obligation, the supreme court has suggested that a district cou rt should make factual
findings as to the obligor’s insurability and the cost of insurance. Lee v. Lee, 775 N.W.2d
631, 642-43 (Minn. 2009) (stating, in dicta, that “[i]nsurability and cost of insurance seem
to us to be significant facts in determining . . . the propriety of an insurance requirement”).

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But husband did not argue to the district court that the cost o f life insurance was
prohibitive except in his amended motion for amended findings o f fact, which was
untimely and thus not considered by the district court. And husband presented no evidence
of the cost of life insurance except in an affidavit accompanyi ng that untimely amended
motion. We are limited to considering “only those issues that t he record shows were
presented [to] and considered by the trial court in deciding the matter before it.” Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988 ) (quotation omitted). Thus, t he question of the
cost of the insurance is not properly before this court, and we decline to address it. Further,
in his timely original motion for amended findings, husband himself argued that $250,000
was an appropriate level at which to set his life-insurance obligation. If we were to address
the cost of the insurance we would, on this record, conclude th at the district court did not
abuse its discretion.
IV. The district court did not abuse its discretion in determin ing the amount and
terms of maintenance.

Husband’s final argument on appeal is that the district court abused its discretion in
awarding spousal maintenance, f irst, because it is too much for husband to afford and,
second, because the award does not automatically terminate upon wife’s remarriage.
On appeal from an award of spousal maintenance, this court revi ews whether the
district court’s maintenance awa rd was an abuse of its “wide di scretion.” Chamberlain,
615 N.W.2d at 409. A district co urt abuses its discretion if it draws “a clearly erroneous
conclusion that is against logic and the facts on record.” Id. (quotation omitted).

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A. Husband’s ability to pay
Husband argues that the district court abused its discretion by awarding maintenance
based on husband’s gross income, rather than calculating his net income.
When deciding whether to award spousal maintenance, the distric t court must
consider “all relevant factors including: . . . the ability of the spouse from whom
maintenance is sought to meet needs while meeting those of the spouse seeking
maintenance.” Minn. Stat. § 518.552, subd. 2 (2018). “In order to determine ability to pay,
the court must make a determination of the payor spouse’s net or take-home pay.” Kostelnik
v. Kostelnik , 367 N.W.2d 665, 670 (Minn. App. 1985), review denied (Minn. July 26,
1985). However, “the district court is not required to make spe cific findings on every
statutory factor if the findings that were made reflect that th e district court adequately
considered the relevant statutory factors.” Peterka v. Peterka, 675 N.W.2d 353, 360 (Minn.
App. 2004).
Here, the district court found that husband had the ability to pay maintenance but
did not specifically calculate hus band’s net pay. The district court’s findings and the
evidence in the record nonethele ss reveal that the district cou rt did adequately consider
husband’s ability to pay. When finding that husband had the ability to pay, the district court
referred back to its findings of fact regarding spousal mainten ance. In those findings, the
district court specifically calcu lated that husband had gross m onthly income of $15,995.
While this is not the same as net income, husband neither introduced nor provided to wife
any evidence of his net income, but only provided 11 months of paystubs. Significantly, in
the same set of findings from which it concluded that husband w as able to support wife,

18
the district court noted that husband had claimed monthly expenses totaling $13,938. While
the district court adjusted husband’s claimed monthly expenses downward, it would not be
unreasonable for the court to have concluded that the amount that husband claimed as his
monthly expenses was lower than his actual net income.
Before this court, husband now argues that he has insufficient income to meet his
obligations under the district court’s order. Husband identifie s individual sums that he
argues make it impossible for him to comply: $5,775 per month in living expenses, $1,862
per month in spousal maintenance , $4,167 per month to make the quarterly equalizer
payments, and $3,654 per month in life-insurance premiums. Summ ing these obligations,
husband’s claimed monthly costs add up to $15,468. But the evid ence of the cost of
insurance is not of record. The district court’s order cannot be “contrary to evidence in the
record” without record evidence of how much the insurance costs . Chamberlain, 615
N.W.2d at 409. The remaining, documented costs total only $11,804 per month, more than
$2,000 less than what husband asserted were his reasonable expe nses to maintain the
marital standard of living. We c annot say that the district cou rt abused its discretion in
finding that husband could afford to provide spousal maintenance to wife.3
B. Remarriage
Husband argues that the district court abused its discretion by altering the normal
presumption that maintenance end s on the recipient’s remarriage . “Unless . . . expressly

3 Husband also challenges the district court’s elimination of $1,000 per month of charitable
giving from his reasonable monthly expenses, but, given that he has $2,000 to spare even
before reaching his own claimed monthly expenses, we see no nee d to address this
argument.

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provided in the decree, the obligation to pay future maintenance is terminated upon . . . the
remarriage of the party receiving maintenance.” Minn. Stat. § 5 18A.39, subd. 3 (2018).
The district court’s order provides: “Any cohabitation or remarriage by [wife] may form a
basis for a motion to modify spousal support under Minn. Stat. § 518.552, subd. 6.”
Husband argues that this order e xpressly provides that future m aintenance shall not be
terminated by wife’s remarriage, but that is not actually clear. The district court’s order is
descriptive, saying that remarriage “may” be a reason for a mot ion to modify—the order
does not appear to “expressly provide” for non-termination if wife remarries.
At this time, we cannot address whether and on what conditions husband’s
obligation to provide maintenance automatically terminates. “Appellate courts decide only
actual controversies and avoid advisory opinions.” Pechovnik v. Pechovnik, 765 N.W.2d
94, 97 (Minn. App. 2009) (quota tion omitted). To establish that t h e r e i s a n a c t u a l ,
justiciable controversy, husband “must show a direct and imminent injury.” Leiendecker v.
Asian Women United of Minn. , 731 N.W.2d 836, 841 (Minn. App. 2007) (quotation
omitted), review denied (Minn. Aug. 7, 2007). Husband’s only objection to this part of the
order is that he will “bear the burden of bringing a motion in district court” to terminate
maintenance if wife remarries. But there are many possible outcomes where he would not
need to do so: wife may never remarry, or may not remarry durin g husband’s lifetime, or
may not remarry before husband brings a motion to modify maintenance for other reasons.
Or other life circumstances may intervene. Simply put, any opinion on the meaning of this
clause is not ripe for adjudication because husband can point to no imminent injury.

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V. The district court did not abuse its discretion in declining to award wife
attorney fees.

A. Conduct-based fees
Wife argues that the district court should have ordered husband to pay her attorney
fees because his conduct “unreasona bly contribute[d] to the len gth or expense of the
proceeding.” Minn. Stat. § 518.14, subd. 1 (2018).4
“A refusal to award attorney fees will not be reversed absent a c l e a r a b u s e o f
discretion.” Kitchar v. Kitchar , 553 N.W.2d 97, 104 (Minn. App. 1996), review denied
(Minn. Oct. 29, 1996). In Kitchar, we affirmed a refusal to award conduct-based attorney
fees because both parties’ conduc t contributed to the length an d expense of a proceeding
and because the party requesting fees failed to identify which costs were traceable to the
other party’s purported bad conduct. Id. Generally, a party’s conduct outside the dissolution
process is not a basis for an award of conduct-based attorney fees. Geske v. Marcolina, 624
N.W.2d 813, 819 (Minn. App. 2001).
Wife’s theory is that, by repeatedly supplying inadequate disco very responses,
husband forced wife to spend more time and money on the proceeding than she otherwise
would have needed to. Wife describes the purportedly offending conduct in great detail,
but she cites no caselaw identif ying how egregious conduct must be to make a district
court’s refusal to award conduct-based attorney fees an abuse of discretion.

4 The parties here do not dispute that section 518.14, subd. 1, provides a substantive basis
for an award of conduct-based f ees, so we do not address that q uestion. Cf. Anderson v.
Anderson, No. A16-2006, order at 3 (Minn. Aug. 6, 2018) (questioning whether that section
is a basis for conduct-based fees); id. a t D1 ( Gi l de a , C. J . , di s se nt i ng) ( a r g ui n g t ha t t he
section does not provide such a basis).

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Nevertheless, we observe that most of the additional complexity of this case was
due to husband’s pre-dissolution dissipation of assets and the generally unclear nature of
his financial relationships with his brothers, and none of that conduct occurred during the
dissolution. See id. While husband did fail to respon d thoroughly to wife’s discove ry
requests, many of those requests appear to have pushed the boun ds of reasonableness—
wife sought information stretching back to the beginning of the marriage, or even before,
and sought information through husband from non-parties. Thus, even if husband’s conduct
did extend the length of the proceedings, his conduct during the dissolution is not the sole
reason for its length. See Kitchar, 553 N.W.2d at 104. Finally, many of wife’s examples of
husband’s purported bad conduct increased neither the complexit y nor the length of the
proceeding. She describes instanc es when, on cross-examination, husband contradicted
himself or made unsupported claims. These portions of the trans cript may show that
husband was an unreliable witness, but it is not clear how prov ing himself unreliable at
trial increased the length or complexity of the proceeding in a way that cost wife more in
legal fees. See id.
In sum, the district court did not abuse its discretion in refu sing to award conduct-
based attorney fees to wife.
B. Need-based fees
A district court “shall award atto rney fees, costs, and disburs ements in an amount
necessary to enable a party to carry on or contest the proceedi ng” if it finds that (1) they
are necessary for a party to assert its rights in good faith; (2) the party from whom they are
sought can afford to pay them; an d (3) the party seeking them c annot afford to pay them.

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Minn. Stat. § 518.14, subd. 1. Despite the mandatory language of the statute, caselaw has
not uniformly held that the existence of all three findings requires an award of need-based
fees. See Geske, 624 N.W.2d at 816 n.1 (noting the lack of uniformity). Becaus e neither
party here argues that an award of need-based fees is not discr etionary with the district
court, we will review the district court’s refusal to award wife need-based attorney fees for
an abuse of discretion. “An award of attorney fees rests almost entirely within the discretion
of the trial court and will not b e disturbed absent a clear abu se of discretion.” Crosby v.
Crosby, 587 N.W.2d 292, 298 (Minn. A pp. 1998) (quotation omitted), review denied
(Minn. Feb. 18, 1999). While it is true that husband’s pre-obli gation income is much
greater than wife’s, once his obligations to her are considered, the parties will have roughly
equal resources available to them over the course of the next four years. Wife’s argument—
that she cannot afford to pay $65,000 in attorney fees—is also belied by the fact that she is
receiving a property equalizer of $234,100, an amount that will clearly cover her attorney
fees. Thus, the third statutory requirement is not met, and the district court did not clearly
abuse its discretion in refusing to award need-based attorney fees.
Affirmed.