In re the Marriage of: Mary Elizabeth Moline, petitioner, Respondent,

This opinion will be unpublished and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
A18-1357

In re the Marriage of:
Mary Elizabeth Moline, petitioner,
Respondent,

vs.

Daniel Robert Moline,
Appellant.

Filed October 28, 2019
Affirmed
Cleary, Chief Judge

Dakota County District Court
File No. 19WS-FA-16-1304

Christopher M. Banas, Banas Family Law, P.A., Lilydale, Minnesota (for respondent)

David C. Gapen, Jade K. Johnson, Gapen, Larson & Johnson, LLC, Minneapolis,
Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Cleary, Chi ef Judge; and
Worke, Judge.
U N P U B L I S H E D O P I N I O N
CLEARY, Chief Judge
In this appeal from the district court’s denial of husband’s mo tion to terminate
spousal maintenance, husband ar gues that the district court (1) erred by ruling on his

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motion without an evidentiary hearing; (2) abused its discretio n by denying his motion;
and (3) abused its discretion by awarding attorney fees to wife. We affirm.
FACTS
Appellant Daniel Robert Moline (husband) and respondent Mary Elizabeth Moline
(wife) dissolved their 28-year marriage in July 2017. The parties stipulated to the terms of
the dissolution judgment and decree, under which husband agreed to pay $6,750 per month
in spousal maintenance to wife. At the time of the divorce, wi fe had a gross income of
approximately $21,000 per year a nd monthly expenses of $7,000. Husband had a gross
income of approximately $189,000 per year working as an attorney for Travelers Indemnity
Company.
In December 2017, husband moved to Sweden and married a new spo u s e . H e
voluntarily terminated his employment with Travelers because the company did not permit
him to work remotely. He had been searching for employment in Sweden without success
for over a year prior to his move. Because he was unemployed, husband moved to
terminate his spousal-maintenance obligation.
The parties’ stipulation provided that the district court would hold an evidentiary
hearing on any modification motion. The district court scheduled an evidentiary hearing,
at which husband did not appear. The attorneys agreed to waive the evidentiary hearing.
The district court denied husband’s motion after finding that h is voluntary termination of
employment did not constitute a good-faith effort to comply with his spousal-maintenance

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obligation, and ordered husband to pay $5,000 in need-based att orney fees. Husband
appeals.
D E C I S I O N
I. The district court did not err as a matter of law by declini ng to conduct an
evidentiary hearing on husband’s motion.

A waiver of an evidentiary hearing should be made clear from the record. Thompson
v. Thompson, 55 N.W.2d 329, 333 (Minn. 1952). While a district court is n ot required to
conduct an evidentiary hearing on a motion to modify or termina te spousal maintenance,
Sieber v. Sieber, 258 N.W.2d 754, 756 (Minn. 1977), husband and wife stipulated that the
district court would conduct an evidentiary hearing upon a motion to modify or terminate
spousal maintenance.
Husband contends that he did not voluntarily waive his right to an evidentiary
hearing. Husband did not argue t o the district court that he d id not waive his right to an
evidentiary hearing or that his attorney was not authorized to waive the hearing on his
behalf. This court generally does not consider issues not rais ed to or considered by the
district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).
The record indicates that husband waived the hearing. The district court scheduled
an evidentiary hearing after husband filed his motion. Counsel for husband appeared, but
husband did not. Wife’s attorney informed the district court t hat “[i]n lieu of continuing
this matter out for an evidentiary hearing . . . counsel is going to submit proposed [f]indings
to [the district court].” The district court then clarified wi th husband’s attorney that this

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was an accurate recitation of the parties’ agreement, and husba nd’s attorney replied,
“[c]orrect.” Both parties later submitted their respective proposed findings of fact.
Husband argues that his mere participation in the deficient procedure does not imply
waiver of his right to an evidentiary hearing under Adam v. Adam, 358 N.W.2d 487, 489
(Minn. App. 1984). But this court in Adam acknowledged that an express agreement to
submit the issue to the district court without a hearing would constitute a waiver of the
right to an evidentiary hearing. 358 N.W.2d at 489. Here, counsel for each party expressly
agreed to submit the issue to the district court without an evidentiary hearing.
Husband does not specifically argue that he did not authorize his attorney to waive
the hearing on his behalf. Instead, his argument is primarily that he did not make an
express, voluntary waiver of his right to the hearing. His onl y argument that his attorney
did not have his authorization to waive the hearing is that the record does not contain “any
indication that [husband’s] attorney was authorized to waive [h usband’s] right to an
evidentiary hearing on [husband’s] behalf.” An assignment of e rror in a brief based on
“mere assertion” and not supported by argument or authority is not properly before this
court. Schoepke v. Alexander Sm ith & Sons Carpet Co. , 187 N.W.2d 133, 135 (Minn.
1971). The district court did not err in ruling on husband’s motion without an evidentiary
hearing.
II. The district court did not abuse its discretion when it den ied husband’s motion
to terminate spousal maintenance.

We review a district court’s de cision to modify spousal mainten ance for an abuse
of discretion. Madden v. Madden, 923 N.W.2d 688, 696 (Minn. App. 2019). A district

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court abuses its discretion if its factual findings are unsuppo rted by the record or if it
misapplies the law. Id. This court must uphold a district court’s findings of fact regarding
spousal maintenance unless they are clearly erroneous. Hemmingsen v. Hemmingsen, 767
N.W.2d 711, 716 (Minn. App. 2009), review granted (Minn. Sept. 29, 2009) and appeal
dismissed (Minn. Feb. 1, 2010). A finding of fact is clearly erroneous if it is not reasonably
supported by the evidence as a whole. Id.
Husband argues that he made a showing of a substantial change i n circumstances
that made the current maintenance award unreasonable and unfair under Minn. Stat.
§ 518A.39, subd. 2(a)(1) (2018). The party moving to modify spousal maintenance has the
burden not only of showing a substantial change in circumstances but also that the change
makes the maintenance award unreasonable and unfair. Hecker v. Hecker , 568 N.W.2d
705, 709 (Minn. 1997). A change of circumstances includes a su bstantial increase or
decrease in a party’s earnings. O’Donnell v. O’Donnell, 678 N.W.2d 471, 475 (Minn. App.
2004). Because husband is unemployed, it is undisputed that his income has substantially
decreased. The issue remaining is whether husband’s decrease in income has rendered the
existing award unreasonable and unfair.
If an obligor voluntarily creates a change in circumstances, th e district court can
consider the obligor’s motives a nd can deny modification if the change was created to
obtain a modification. Hemmingsen, 767 N.W.2d at 717. If a career change resulting in
decreased earnings was made in go od faith so that the obligor c ould continue to meet his
maintenance obligations, the district court may modify maintenance. Giesner v. Giesner,

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319 N.W.2d 718, 720 (Minn. 1982); see also Richards v. Richards, 472 N.W.2d 162, 165
(Minn. App. 1991) (stating that, if obligor’s voluntary early retirement results in reduction
in income, and obligee claims bad faith, district court should evaluate obligor’s intent to
determine whether early retiremen t was made in good faith). We d e f e r t o t h e d i s t r i c t
court’s credibility determinations. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).
This rule applies when evidence is presented through affidavits. Hestekin v. Hestekin, 587
N.W.2d 308, 310 (Minn. App. 1998).
The district court found that hus band’s voluntary termination o f his employment
“[did] not constitute a reasonable effort to comply with his obligations under the stipulated
divorce decree” and that “[his] reduction in income [was] solely the fault of his own.” It
further stated that it “concluded that [husband] did not make a good-faith effort to comply
with the terms of the stipulated divorce decree.”
Husband argues that the district court clearly erred in finding that he did not act in
good faith because the parties were aware of his planned move. He contends that the terms
of the current award are unreasonable and unfair because he is incapable of earning income
in Sweden equal to that which he earned in the United States, and he has pursued numerous
job opportunities without success.
Husband moved to Sweden and voluntarily terminated his employment knowing of
his maintenance obligations and of wife’s expenses. Husband’s affidavit, on which he
based his motion, states that he had been searching for employm ent in Sweden since
November 2016. He was aware of the difficulties in finding emp loyment in Sweden but

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he nevertheless moved there in 2017, knowing that he would likely experience a reduction
in income. Husband contends tha t the district court is require d to evaluate his subjective
intent. But the district court did evaluate his intent and fou nd that he terminated his
employment solely to be with his current spouse, not with the i ntent of continuing his
maintenance obligations. The record supports the district cour t’s finding that husband’s
reduction in income was not made in good faith. Husband also a sserts that the current
maintenance award is unreasonable and unfair because he is unab le to afford it with his
current income. But this court has upheld a maintenance obliga tion that exceeded an
obligor’s income. Ganyo v. Engen, 446 N.W.2d 683, 687 (Minn. App. 1989).
Husband further argues that th e district court erred by failing to make specific
findings under Minn. Stat. § 518.552 (2018), and that as a result this court should remand
for the district court’s consideration of the statutory factors . But if the party moving for
modification fails to show that the substantial change in circumstances renders the current
maintenance award unreasonable and unfair, the district court need not consider the section
518.552 factors. See Tuthill v. Tuthill, 399 N.W.2d 230, 232 (Minn. App. 1987) (applying
predecessor to Minn. Stat. § 518A.39). We affirm the district court’s denial of husband’s
motion to terminate spousal maintenance.
III. The district court did not a buse its discretion by awarding attorney fees to wife.

Attorney fees in dissolution proceedings are generally governed by Minn. Stat.
§ 518.14, subd. 1 (2018), which allows for need-based fee award s. Geske v. Marcolina ,
624 N.W.2d 813, 816 (Minn. App. 2001). A district court “shall ” award attorney fees

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where it finds that (1) the fees a re necessary to a party’s goo d-faith claim and will not
contribute unnecessarily to the length and expense of the proce eding; (2) the party from
whom fees are sought has the means to pay; and (3) the party who seeks the fees does not
have the means to pay them. Minn. Stat. § 518.14, subd. 1. An award of attorney fees
under section 518.14, subdivision 1 “rests almost entirely with in the discretion of the
[district] court and will not be disturbed absent a clear abuse of discretion.” Schallinger v.
Schallinger, 699 N.W.2d 15, 24 (Minn. App. 2005) (quotation omitted), review denied
(Minn. Sept. 28, 2005); but see Holmberg v. Holmberg, 588 N.W.2d 720, 727 (Minn. 1999)
(stating that section 5 18.14, subdivision 1, requires t h e c o u r t t o a w a r d a t t o r n e y f e e s i f
statutory requirements are met).
The district court awarded need -based attorney fees to wife. I t found that wife’s
motion in opposition to husband’s motion to modify maintenance was a good faith
assertion of her rights. The district court also found that husband has the means to pay the
award, and wife does not have the means to pay her attorney fees.
Husband argues that the district court failed to make findings on the statutory factors
and that this court must remand for specific findings on the in come and expenses of the
parties. But this court has upheld a district court’s attorney -fee award without specific
findings when it discussed the pa rties’ finances fully in prior orders. Dobrin v. Dobrin ,
555 N.W.2d 921 (Minn. App. 1996), rev’d on other grounds , 569 N.W.2d 199 (Minn.
1997). Here, the original stipulated divorce decree contains t horough findings regarding
the parties’ income and expenses.

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Further, while the district court did not make specific findings on husband’s income
after he terminated his employment, it made findings regarding the parties’ income during
the marriage. And a district court may impute income to an obl igor when it finds the
obligor has acted in bad faith in limiting his income. Melius v. Melius, 765 N.W.2d 411,
416-17 (Minn. App. 2009). Because the district court found tha t husband did not act in
good faith, it did not err in finding that husband had the mean s to pay the award based on
his income during the marriage. The district court did not abuse its discretion.
Affirmed.