In re the Marriage of: Jane Swenson Amdal, 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This opinion will be unpublished and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
A19-1687

In re the Marriage of: Jane Swenson Amdal, petitioner,
Respondent,

vs.

Keith Solomon Moheban,
Appellant.

Filed August 31, 2020
Affirmed in part, reversed in part, and remanded; motion denied.
Reyes, Judge

Hennepin County District Court
File No. 27-FA-15-2713

Jana Aune Deach, Moss & Barnett, Minneapolis, Minnesota (for respondent)

Joani C. Moberg, Susan A. Daudelin, Henschel Moberg, PA, Minneapolis, Minnesota (for
appellant)

Considered and decided by Slieter, Presiding Judge; Ross, Judge; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
On appeal from the district court’s denial of his motion to modify his spousal-
maintenance obligation, appellant-husband argues that (1) the appropriate standard of
review for the district court’s interpretation of a prior district court’s dissolution judgment
and decree is de novo; (2) the district court misinterpreted the dissolution judgment and
decree; (3) the district court erred by applying res judicata to preclude its consideration of

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his arguments; (4) the district court abused its discretion by reducing his spousal -
maintenance obligation by $14,400 when respondent-wife’s budget decreased by $23,556;
and (5) the district court abused its discretion by awarding wife conduct-based attorney
fees. We affirm in part, reverse in part, and remand, and we deny as moot wife’s motion
to strike portions of appellant’s brief.
FACTS
In March 2017, the district co urt (dissolution court) entered a final dissolution
judgment and decree (2017 judgment), dissolving the marriage between appellant Keith
Solomon Moheban (husband) and respondent Jane Swenson Amdal (wife). Husband is a
partner at a law firm in Minneapolis and receives income in the form of an annual salary,
quarterly distributions to make tax payments , and year -end distributions. Husband’s
historical income for 2011 through 2015 r anged from $297,800 to $464,827 . The
dissolution court found that wife had a reasonable budget of $9,617 per month and that she
could make an average of $10,000 per year, given her medical limitations. In light of the
variability of husband’s income, the dissolution court awarded wife spousal maintenance
in two tiers: tier -I spousal maintenance as a fixed monthly amount of $4,135 and tier -II
spousal maintenance as 50% of husband’s year-end distributions, “subject to a cap when
Wife’s established reasonable needs are met.”
The dissolution court described tier-II maintenance as support in “any additional
amount necessary to meet Wife’s needs,” subject to the cap. The dissolution court noted,
as a conclusion of law, that “[f]or 2017 and 2018, tier two spousal maintenance shall be up
to and shall not exceed [a cap of] $55,784.” The dissolution court also noted, as a finding

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of fact, that the parties would be able to request an administrative review to modify the
tier-II spousal-maintenance cap per Minn. Stat. § 518A.39, subd. 2 (2018), no earlier than
November 2018, after the anticipated termination of wife’s mortgage-payment obligation.
In April 2017, husband and wife both filed motions for amended findings per Minn.
R. Civ. P. 52.02, seeking to change the amount of the tie r-II maintenance cap. Later in
April 2017, a new judge replaced the original judge who oversaw the 2017 judgment.
Following this replacement, i n August 2017, the district court amended portions of the
2017 judgment but did not alter the spousal-maintenance award.
In October 2018, husband filed a motion to modify and reduce his spousal-
maintenance obligation to wife per Minn. Stat. § 518A.39, subd. 2, based on wife no longer
having mortgage payments. In February 2019, the district court denied husband’s motion,
determining that, even though wife’s monthly expenses decreased because she no longer
had mortgage payments, husband had not demonstrated the unreasonableness or unfairness
of the outstanding spousal-maintenance award. Later in February 2019, husband requested
to file a motion for the district court to reconsider its denial of his October 2018 motion per
Minn. R. Gen. Prac. 115.11, which the district court granted. In March 2019, husband filed
the motion for reconsideration, requesting the district court to modify and reduce his tier-
II spousal maintenance per Minn. Stat. § 518A.39, subd. 2. In April 2019, husband filed a
notice of appeal with this court, which he then sought to stay, pending the district court’s
resolution of his motion for modification. We initially granted his request to stay the
appeal, but, in light of later developments in the district court, we dismissed the appeal
without prejudice to allow husband to file a ne w appeal to obtain review of the district

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court’s February 2019 spousal-maintenance order. Amdal v. Moheban , No. A19-0600,
(Minn. App. June 21, 2019) (order).
In May 2019, the district court granted husband’s motion to modify spousal
maintenance in part , by reducing husband’s tier-II sp ousal-maintenance obligation by
$14,400, based on wife no longer having monthly mortgage payments. The district court
also determined that the plain language of the 2017 judgment set no limit on wife’s tier-II
spousal maintenance after 2018 and determined that, going forward, wife would receive
50% of all of husband’s year-end distributions, without a cap. Husband responded by filing
a motion to vacate and amend the district court’s May 2019 order per Minn. R. Civ. App.
P. 108.01, subd. 2, Minn. R. Civ. P. 52.02 , arguing that the district court incorrectly
interpreted the 2017 judgment to not include a post-2018 tier-II spousal-maintenance cap.
In October 2019, the district court denied husband’s request to vacate and amend the May
2019 order and ordered husband to pay conduct-based attorney fees . Assuming that the
2017 judgment excluded a tier-II spousal-maintenance cap post-2018, the district court also
determined that res judicata prevented husband from arguing that the 2017 judgment
included a tier -II spousal -maintenance cap post -2018 because he had not raised this
argument in his April 2017 motion to change the tier -II maintenance cap or at any other
point in 2017 . Nevertheless, the district court determined that husband had recourse
because Minn. Stat. § 518A.39, subd. 2, provides an exception to res judicata in spousal -
maintenance cases, allowing him to request modification of the award based on a
substantial change of circumstances rendering the maintenance obligation unreasonable
and unfair.

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Husband filed a notice of appeal regar ding the district court’s February, May, and
October 2019 orders. In December 2019, the parties requested clarification from the
district court regarding its May 2019 modification of the tier -II spousal-maintenance
payments. The district court deferred the parties’ request pend ing our decision in this
appeal.
D E C I S I O N
Husband raises five issues on appeal, including (1) res judicata; (2) our standard for
reviewing the district court’s interpretation of the 2017 judgment; (3) the propriety of the
district court’s interpretation of the 2017 judgment; (4) the spousal-maintenance reduction;
and (5) attorney fees. Because res judicata is a potentially dispositive issue, we address it
first.
I. Res judicata does not bar husband’s challenge to the district court’s
interpretation of the 2017 judgment.
Husband argues that res judicata cannot bar him from challenging the district court’s
May 2019 interpretation of the 2017 judgment as having no tier -II cap post -2018. We
agree.
We review whether res judicata can apply de novo. Erickson v. Comm’r of Dep’t
of Human Servs., 494 N.W.2d 58, 61 (Minn. App. 1992). If res judicata applies, we review
the district court’s decision of whether to apply it for an abuse of discretion. Id. Res
judicata bars a subsequent claim when (1) the prior claim involves the same set of factual
circumstances; (2) the prior claim involve s the same parties or their privies; (3) the prior
claim received a final judgment on the merits; and (4) “the estopped party had a full and

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fair opportunity to litigate the matter. ” Hauschildt v. Beckingham, 686 N.W.2d 829, 840
(Minn. 2004). 1 “Res judicata not o nly applies to all claims actually litigated, but to all
claims that could have been litigated in the earlier action.” Id.
The district court determined that res judicata precluded husband from arguing the
existence of the tier -II cap post -2018 because it determined that the 2017 judgment
unambiguously excluded a tier -II cap post -2018. See Dieseth v. Calder Mfg. Co. , 147
N.W.2d 100, 103 (Minn. 1966) (stating that “[e]ven though the decision of the trial court
in the first order may have been wrong, if i t is an appealable order it is still final after the
time for appeal has expired.”); Dailey v. Chermak , 709 N.W.2d 626, 631 (Minn. App.
2006), (citing this aspect of Dieseth in family law appeal), review denied (Minn. May 16,
2006).
However, as discussed below, because the district court erroneously interpreted the
2017 judgment, which never intended to exclude a tier-II cap post-2018, the district court’s
erroneous interpretation of the 2017 judgment cannot be retroactively read into the
judgment and used as a basis for invoking res judicata to preclude husband from
challenging its interpretation.
Res judicata would preclude husband from attacking the 2017 judgment for the first
time in 2019 . But that is not what he is doing. T he 2017 judgment did not explicitly

1 See Loo v. Loo , 520 N.W.2d 740, 74 3-44 (Minn. 1994) (noting that, “[i ]n a technical
sense,” res judicata does not apply in spousal-maintenance dispute because there is no final
judgment in another suit , but acknowledging that “t he underlying principle that an
adjudication on the merits of an issue is conclusive, and should not be relitigated,
[however,] clearly applies.”); see id. at 743-44 & n.1 (discussing applicability of law of the
case, res judicata, and collateral estoppel).

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address the amount of a tier-II maintenance cap post-2018, though it did make findings of
fact that unambiguously convey the dissolution court’s intent to extend the existence of a
cap post-2018 at the amount of wife’s expenses , as explained below. Instead, it allowed
the parties to request an administrative review to file a motion to modify the amount of the
tier-II cap per Minn. Stat. § 518A.39, subd. 2, no earlier than November 2018 . In May
2019, for the first time, the district court int erpreted the 2017 judgment to include no cap
post-2018. Because the district court articulated its interpretation of there being no cap
post-2018 for the first time in May 2019, husband did not have a full and fair opportunity
to litigate the matter until after May 2019. See id.
Moreover, “[r]es judicata has limited application to family law matters,” and if two
motions to modify maintenance address different aspects of maintenance, res judicata
cannot preclude litigation of the second motion. See Maschoff v. Leiding, 696 N.W.2d 834,
835 (Minn. App. 2005) (examining child-support orders). Husband’s October 2018 and
March 2019 motion s to reduce th e amount of his tier -II spousal-maintenance obligation
did not address the issue of the tier -II spousal-maintenance cap. After the district court
interpreted the 2017 judgment in May 2019 not to have a tier -II cap post -2018, husband
moved to vacate and amend the district court’s order and addressed the issue of a tier -II
cap post-2018. The motions husband submitted before and after the district court’s May
2019 interpretation of the 2017 judgment addressed different aspects of maintenance, and
res judicata cannot preclude husband’s argument that the cap continues post-2018. See id.
Because we conclude that res judicata did not pre clude husband from arguing that the

8
district court erroneously interpreted the 2017 judgment, we now turn to the district court’s
interpretation.
II. Appellate courts review a district court ’s interpretation of a n unambiguous
dissolution judgment de novo.

Whether a provision in a dissolution judgment is ambiguous is a question of law
that we review de novo. See Suleski v. Rupe , 855 N.W.2d 330, 339 (Minn. App. 2014) .
“[A] dissolution provision is unambiguous if its meaning can be determined without any
guide other than knowledge of the facts on which the language depends for meaning.”
Landwehr v. Landwehr, 380 N.W.2d 136, 138 (Minn. App. 1985) (quotation omitted). We
review a district court’s interpretation of an unambiguous dissolution provision de novo.
See Vanderleest v. Vanderleest , 352 N.W.2d 54, 56 (Minn. App. 1984) . If a dissolution
provision is unambiguous, then we apply its plain meaning. See Starr v. Starr, 251 N.W.2d
341, 342 (Minn. 1977) (examining stipulated dissolution and decree provision).
III. The district court erred by finding that husband’s tier-II spousal-maintenance
obligation did not have an amount cap after 2018.

Husband argues that the district court erred in its interpretation of the 2017 judgment
by failing to take into account its provisions that acknowledged the importance of awarding
maintenance based on need and that anticipated an administrative review after November
2018 to modify the allocation of tier -II spousal maintenance based on wife no longer
having mortgage payments. We agree.
Here, the district court determined that the 2017 judgment tier-II cap provision
unambiguously included no cap beginning in 2019. We agree that the 2017 judgment is
unambiguous, but we disagree with the district court’s determination that it expressed no

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tier-II cap post-2018. Interpreting the 2017 judgment not to include a cap post -2018 is
inconsistent with the plain language of the 2017 judgment and how relevant caselaw and
statutes outline the purpose of maintenance and acceptable maintenance awards.
The dissolution court meticulously outlined wife’s average monthly expenses
during the marriage, calculated them to be $9,617 per month, and awarded spousal
maintenance, including the tier -II cap, to meet this calculated budget. Its 2017 judgment
described tier -II spousal maintenance in the findings as “subject to a cap when Wife’s
established reasonable needs are met,” and as maintenance that “would only be paid to
Wife if, as, and when Husband receives the income, up to a cap at which Wife has received
the amount needed to meet her budget.”
Wife argues that the dissolution court’s conclusion of law plainly articulates a cap
only for 2017 and 2018 and controls over its inconsistent findings of fact. See Dailey, 709
N.W.2d at 631-32.
But “[w]e must interpret the terms of a divorce decree to be reasonable, effective,
and conclusive so it harmonizes both th e law and the facts of the case . . . [and] the
judgment should be considered as a whole by a court interpreting any clause or sentence
therein.” Stewart v. Stewart , 400 N.W.2d 157, 159 (Mi nn. App. 1987). Interpreting the
tier-II spousal -maintenance cap to terminate in 2018 would ignore the fact that the
dissolution court calculated wife’s budget to determine her need and capped spousal
maintenance to reflect “the amount needed to meet her budget.” The 2017 judgment did
not determine the amount of tier-II spousal maintenance after 2018 because it anticipated
a substantial change of circumstances based on wife no longer having mortgage payments.

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See i d. In response to husband’s request to reduce the tier-II spousal-maintenance cap
because of the mortgage -payment reduction, the dissolution court noted, “Because this
addresses a possible future scenario, the Court will not address this request at this time, but
provides the parties with the opportunity to request an administrative review to be
scheduled, upon motion of a party, no earlier than November 2018.” Finally, we note that
the 2017 judgment does not contain an express statement that there will be no cap post -
2018. To the contrary, the dissolution court’s mention of modifying tier-II spousal-
maintenance in the future coupled with its clear and repeated references to awarding
spousal maintenance based on need compel our conclusion that the district court
erroneously interpreted the 2017 judgment not to include a post-2018 tier-II cap.
Moreover, statute and caselaw support our interpretation of the 2017 judgment. See
id. (encouraging courts to interpret terms in judgment in light of whole judgment and
relevant law). As the dissolution court noted in the 2017 judgment, “[t]he purpose of
alimony is to care for the wife’s needs after divorce, not to provide her with a lifetime
profit-sharing plan.” Kaiser v. Kaiser, 186 N.W.2d 678, 685 (Minn. 1971). The award of
spousal maintenance and the demonstration of need are inextricably linked. See Dobrin v.
Dobrin, 569 N.W.2d 199, 202 (Minn. 1997) (“Implicit in Minn. Stat. § 518.552 is that the
spouse seeking maintenance must demonstrate the need [for it] . . . .”); Lyon v. Lyon, 439
N.W.2d 18, 22 (Minn. 1989) (stating “maintenance depends on a showing of need”);
Peterka v. Peterka , 675 N.W.2d 353, 358 (Minn. App. 2004) (articulating purpose of
spousal maintenance as allowing “the recipient and the obligor to have a standard of living
that appro ximates the marital standard of living, as closely as is equit able under the

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circumstances,” and recognizing circumstances to include determination of recipient’s
need). In fact, section 518.552 requires that the spouse seeking maintenance must lack
sufficient means “to provide for reasonable needs of the spouse considering the standard
of living established during the marriage.” Minn. Stat. § 518.552, subd. 1(a) (2018).
The dissolution court calculated wife’s need in light of her standard of living during
the marriage, determined her demonstr ated annual need to be $115,404, and set a cap to
meet that calculated need. Uncapping a spousal-maintenance award when the cap aligns
with wife’s demonstrated need runs contrary to caselaw by allowing spousal maintenance
to exceed need . In fact, the dissolution court anticipated this outcome and noted that
husband could seek a future modification of spousal maintenance based on a substantial
change of circumstances rendering the award unreasonable and unfair.
Wife relies on this future resolution and argues that uncapped percentage -based
spousal-maintenance awards are permissible so long as a fixed amount of spousal
maintenance is coupled with a percentage-based award. Although we have determined that
such an arrangement is permissible, we have also clarified that this arrangement is
disfavored and that percentage-based awards must be modified when they no longer match
the needs of the spouse receiving maintenance. See, e.g., Schreck v. Schreck, 445 N.W.2d
861, 862-63 (Minn. App. 1989) (affirming spousal maintenance award of $2,200 per month
and 40 % of annual bonus but noting need for cap if “ actual bonus share will exceed
respondent’s needs ”), review denied (Minn. Nov. 15, 1989) ; Doherty v. Doherty , 388
N.W.2d 1, 1 -2 & n.1 (Minn. App. 1986) (concluding district court did not abuse its
discretion by awarding fixed -amount monthly maintenance plus fixed percentage of

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income in excess of certain amount, but characterizing such award as disfavored and noting
award may need to be capped if no longer responsive to parties’ circumstances). Here,
neither the 2017 judgment nor the district court in its interpretation of the judgment
articulated a rationale for why wife should receive a potential windfall in excess of her
demonstrated, calculated need. See Lyon, 439 N.W.2d at 22.
In sum, b oth the dissolution court’s budgetary calculations, representing wife’s
marital standard of living, and its articulation of spousal maintenance in relation to
demonstrated need, representing the statutory requirement, remain unchanged before and
after 2018. Because removing the cap post-2018 and allowing wife to potentially receive
a windfall of spousal maintenance in excess of her need is contrary to the plain meaning of
the 2017 judgment when read in context , we conclude that the district court erred in its
interpretation of the 2017 judgment and remand for proceedings consistent with this
opinion.
IV. The district court did not abuse its discretion by reducing wife’s maintenance
award by $14,400 when wife’s budget decreased by $23,556.

Husband argues that the district court abused its discretion by reducing his
maintenance obligation by only $14,400 per year when wife’s budget decreased by $23,556
per year. Husband also contends that the district court incorrectly articulated its $14,400
reduction by stating that only the first $14,400 of husband’s year-end distributions are not
subject to maintenance, resulting in only half of the intended maintenance reduction, and
that in order to reduce what he owes from his year-end distributions by $14,400, the district

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court should have exempted the first $28,800 of his year-end distributions from
maintenance obligations. We disagree.
We review a district court’s modification of spousal maintenance for an abuse of
discretion. Madden v. Madden, 923 N.W.2d 688, 696 (Minn. App. 2019).
The district court noted the uncertainty inherent in husband’s year-end distributions,
that his income varies substantially, and the risk that wife’s needs would not be met if
husband received less or no yearly distributions. Taking this risk into account, the district
court decreased husband’s tier-II spousal-maintenance obligation by $1 4,400 as opposed
to $23,556, resulting in wife receiving maintenance that exceeded her budget by $763 per
month. The district court did not abuse its discretion by considering and distributing the
risk that husband might receive insufficient year -end payments to allow wife to meet her
reasonable needs.2
The district court determined that “it is reasonable to decrease Husband’s Tier II
maintenance obligation by the total sum of $14,400.00 per year.” The district court then
articulated, “Wife shall not receive Tier II spousal maintenance from Husband unless and
until Husband’s yearly distributions exceed $14,400.00 per year.” Contrary to husband’s
contention, the district court’s order does not address the amount of husband’s year -end
distributions that would be “exempted.” Instead, the order provides for a $14,400

2 See Olson v. Olson, No. A04-1148, 2005 WL 894709, at *5 (Minn. App. Apr. 19, 2005)
(remanding for district court to determine spousal-maintenance payment allocating risk to
both parties). Although not precedential, we find Olson’s reasoning to be persuasive. See
State v. Roy, 761 N.W.2d 883, 888 (Minn. App. 2009) (adopting reasoning from
unpublished case).

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“decrease” in his tier -II spousal -maintenance obligation, which implies a $28,800
maintenance-obligation exemption to result in a $14,400 maintenance-obligation reduction
given that husband shares 50% of his year -end distributions with wife . As stated, t he
district court’s order achieves its goal of reducing husband’s tier -II spousal-maintenance
obligation by $14,400.
V. The district court abused its discretion by issuing conduct-based attorney fees
against husband.

Husband contends that he engaged in reasonable conduct by bringing motions for
amended findings, for reconsideration, and for modification. We agree.
We review the district court’s award of conduct-based attorney fees for an abuse of
discretion. See Geske v. Marcolina , 624 N.W.2d 813, 818 (Minn. App. 2001), review
denied (Minn. Aug. 20, 2002). “[A] district court abuses its discretion if it acts again st
logic and the facts on record, or if it enters fact findings that are unsupported by the record,
or if it misapplies the law.” In re Adoption of T.A.M., 791 N.W.2d 573, 578 (Minn. App.
2010) (internal quotation and citations omitted).
The district cour t may award, “in its discretion, additional fees, costs, and
disbursements against a party who unreasonably contributes to the length or expense of the
proceeding.” Minn. Stat. § 518.14, subd. 1 (2018). “[B]ad faith . . . is not required for an
award of conduct-based attorney fees under Minn. Stat. § 518.14, subd. 1.” Baertsch v.
Baertsch, 886 N.W.2d 235, 238 (Minn. App. 2016). The party moving for conduct-based
attorney fees has the burden to show unreasonable conduct. Id.

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Here, the district court noted that husband had the opportunity to argue the
unreasonableness of an uncapped tier-II spousal-maintenance award beginning in 2017 but
did not do so until May 2019. The district court characterized this as “procedural
maneuverings” that unreasonably increased the length and expense of litigation. But the
district court did not advance an interpretation of the 2017 decree as not including a tier-II
cap post-2018 until May 2019. Later that month, husband submitted a motion challenging
this erroneous interpretation. Husband appropriately responded to the district court’s
interpretation of the 2017 judgment. We therefore conclude that the district court abused
its discretion by awarding conduct-based attorney fees.
VI. Wife’s motion to strike portions of husband’s brief is moot.

Wife argues that husband’s brief contains information that the district court did not
consider when it issued its orders that husband is appealing, including the December 31,
2019 order deferring clarification of spousal maintenance as well as an agreement between
husband and wife that husband would pay wife 50% of his year -end distribution and that
wife would refund that amount if husband prevailed on this appeal . We deny as moot
wife’s motion to strike.
If a court does not consider material that a party seeks to strike, the motion to strike
is moot. See Drewitz v. Motorwerks, Inc., 728 N.W.2d 231, 233 n.2 (Minn. 2007). Here,
because we neither consider nor need to consider the portions of husband’s brief that wife
claims are not properly included in the record, we deny as moot wife’s motion to strike.
On remand, the district court may decide whether to reopen the record.
Affirmed in part, reversed in part, and remanded; motion denied.