In re the Marriage of:

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0328

In re the Marriage of:

Mark David Plucinski, petitioner,
Appellant,

vs.

Ellen Marie Budzynski,
Respondent.

Filed April 11, 2022
Affirmed
Smith, Tracy M., Judge

Olmsted County District Court
File No. 55-FA-06-3390

Dominique J. Navarro, Navarro Law Firm, PLLC, Rochester, Minnesota (for appellant)

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

Considered and decided by Reilly, Pr esiding Judge; Connolly , Judge; and Smith,
Tracy M., Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
Respondent Ellen Marie Budzynski move d the district court to enforce the
obligations of her former spouse, appellant Mark David Plucinski, to pay spousal
maintenance and to maintain life insura nce securing his maintenance obligation;
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respondent also sought reimbursement of her attorney fees. Appellant brought a
countermotion seeking to terminate his mainte nance obligation. The district court issued
an order deciding both motions. It denied appellant’s motion to terminate maintenance, but
it did reduce the maintenance obligation. It granted respondent’s motion to enforce
appellant’s obligations and awarded respond ent conduct-based attorney fees. Appellant
challenges the district court’s order, arguing that the district court should have terminated
his obligation and should not have awarded conduct-based attorney fees. We affirm.
FACTS
Appellant and respondent were married fo r 22 years. Their marriage was dissolved
in 2007 by a stipulated judgm ent and decree. Under that ju dgment and decree, appellant
was ordered to pay respondent permanent maintenance in the amount of $3,000 per month,
which over time increased to $3,666.20 per month due to co st-of-living adjustments. In
August 2020, appellant emailed respondent th at he could no longer afford to pay his
maintenance obligation and would stop payment beginning September 1, 2020. He has not
paid maintenance since August 2020. Under the stipulated judgment and decree, appellant
was also required to maintain life insurance to secure his maintenance obligation. He let
his policy lapse in 2020 and did not obtain a new one.
In November 2020, responde nt moved the district court to enforce appellant’s
maintenance and life-insurance obligations and to order appellant to reimburse her for legal
fees that she had incurred. Appellant filed a countermotion to terminate his maintenance
obligation.
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As further factual background, in the few years immediately preceding the motions
in this matter, appellant disposed of many of his assets. Most significantly, appellant gave
away valuable assets in an unfavorable settlement agreem ent in another divorce. In
September 2015, appellant had remarried, to M.L. He and M.L. divorced in May 2019. In
their settlement agreement, appellant agreed to give a substantial amount of assets to M.L.
These assets included an unen cumbered house valued at $3 20,000 that he had recently
inherited from his mother; 50% of appellant’s share of his pension; and 100% of a 401(k)
account through March 2019. Appe llant also agreed to give M.L. 40% of his income in
maintenance after making maintenance payments to respondent.1 Apart from giving away
assets in this marital-dissolution agreement, appellant also gifted his adult children a total
of $52,000.
By the time of the motions at issue here , appellant’s and respondent’s financial
circumstances had changed. In 2007, when the spousal-maintenance obligation was
established, appellant had a gross annual income of $1 10,672.04. In 20 18, he earned
$123,195.16. In September 2019, appellant wa s forced to retire from his job. At the time
of the motions, appellant’s income was $2,699 .60 per month from soci al security, but he
was expected to start receivi ng pension payments once he finalized retirement-related
matters in connection with the dissolution of his marriage with M.L. Appellant’s monthly
expenses were $3,317.89. As fo r respondent, in 2019, she ha d a gross annual income of

1 Appellant emphasized to the district court that he was not represented by counsel for the
divorce from M.L. In that dissolution procee ding, M.L. was represented by the estate-
planning attorney who represented both her and appellant, and appellant voluntarily waived
the conflict of interest and decided to proceed unrepresented.
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$73,300, which included $45, 005.07 from employment and $43,561 from maintenance.
Respondent also was receiving $1,315.82 per month from a pension account. Her monthly
expenses were $5,545.27.
Throughout litigation of the motions in the district cour t, appellant failed to fully
respond to respondent’s discovery requests. For example, he failed to disclose whether he
received a severance package after he lost his job, did not provide tax transcripts, did not
provide all his bank statements, failed to disclose documents relating to inheritances he had
received from his mother and brother, and did not provid e records of maintenance
payments to M.L. In addition, appellant claimed that he was living in an apartment in New
Jersey, but he provided proof of only one rent payment and did not produce evidence of a
lease renewal for 2021. Also, although appe llant’s second divorce was finalized in May
2019 after less than four years of marriage, he did not complete the division of his
retirement account until Septembe r 2020, delaying pr oceedings in the di strict court here
because he did not yet have all the documents from that dissolution.
The district court held a hearing on the parties’ motions in December 2020. In its
subsequent order, the district court denied appellant’s request to terminate his maintenance
obligation but reduced his obligation to $2,000 per month because of respondent’s increase
in income and because of appellant’s decrease in income due to his job loss. In explaining
its decision not to terminate maintenance, the district court stated that, while appellant had
had a substantial change in financial circumstances, the change was in part the result of his
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“dissipation”2 of assets over the previous three years, done in bad faith to avoid paying his
maintenance obligation to respondent. Additionally, the district court granted respondent’s
order to enforce appellant’s maintenance and life-insurance oblig ations and ordered
appellant to pay respondent co nduct-based attorney fees in the amount of $9,676.55 for
legal fees that respondent incurred between August and December 2020. The district court
explained that appellant co mpelled respondent to move the court to enforce his
maintenance obligation, permitted his court-mandated life-insu rance policy to lapse, and
acted in bad faith by failing to fully respond to respondent’s discovery requests.
Appellant appeals both the denial of his motion to termin ate his maintenance
obligation and the award of conduct-based attorney fees.
DECISION
I. The district court did not abuse its di scretion by refusing to terminate
appellant’s maintenance obligation.

In a dissolution proceeding, courts may award, or parties may stipulate to an award
of, spousal maintenance. Minn. Stat. § 518.552 (2020). Permanent maintenance awards can
be modified as provided according to statute. Minn. Stat. § 518A.39, subd. 2 (2020).
An appellate court reviews a district cour t’s decision whether to modify an existing
maintenance award for an abuse of discretion. Hecker v. Hecker, 568 N.W.2d 705, 709-10
(Minn. 1997). A district court abuses its discretion if it makes findings of fact that are not

2 “Dissipation” can refer to giving away or hiding assets in anticipation of divorce in order
to avoid a maintenance obligation. See, e.g., Bollenbach v. Bollenbach, 175 N.W.2d 148,
155 (Minn. 1970). Here, the district court used the term to describe appellant’s giving away
of assets after the divorce in order to terminate his established maintenance obligation.
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supported by the record, misapplies the law, or resolves the issue contrary to logic and facts
on record. Bender v. Bernhard , ___ N.W.2d ___, ___, 2022 WL 697767, at *4 (Minn.
Mar. 9, 2022); Madden v. Madden, 923 N.W.2d 688, 696 (Minn. App. 2019). We uphold
findings of fact supporting a spousal-main tenance decision unless they are clearly
erroneous. Gessner v. Gessner , 487 N.W.2d 921, 923 (Minn. App. 1992). We review
questions of law de novo. See Honke v. Honke, 960 N.W.2d 261, 265 (Minn. 2021).
To succeed on a motion to m odify or terminate maintenance, the moving party must
show that there has been a substantial ch ange of circumstances since the original
maintenance award and that these changed circumstances make the original award
unreasonable and unfair. Minn. Stat. § 518A.39, subd. 2; Youker v. Youker, 661 N.W.2d
266, 269 (Minn. App. 2003), rev. denied (Minn. Aug. 5, 2003). “Unreasonable and unfair”
are “strong terms which place upon the claima nt a burden of proof more than cursory.”
Kielley v. Kielley, 674 N.W.2d 770, 779 (Minn. App. 2004) (quotation omitted).
Changed circumstance s that can satisfy the statute include a “substantially increased
or decreased gross income of an obligor or obligee” and a “substantially increased or
decreased need of an obligor or obligee.” Minn. Stat. § 518A.39, subd 2(a). It is presumed
that there has been a substantial change of circumstances, and th e current maintenance
obligation is “rebuttably presumed to be unreasonable and unfair,” if “the gross income of
an obligor or obligee has decreased by at least 20 percent through no fault or choice of the
party.” Id. at subd. 2(b)(5). The district court will also apply the factors under Minn. Stat.
§ 518.552 when considering a modification of maintenance. Id. at subd. 2(e). Relevant
factors include the financial resources of th e party seeking maintenance and that party’s
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ability to meet needs independently and “the ability of the spouse from whom maintenance
is sought to meet needs while meeting thos e of the spouse seeking maintenance.” Minn.
Stat. § 518.552, subd. 2.
But “[w]here an obligor voluntarily creates a change of circumstances, the trial court
should consider the obligor’s motives.” Richards v. Richards, 472 N.W.2d 162, 164 (Minn.
App. 1991). A voluntary change in circumstances will not generally result in a modification
of a maintenance obligation if the change was made in bad faith and was “primarily
influenced by a specific intent to decrease or terminate maintenance.” Hemmingsen v.
Hemmingsen, 767 N.W.2d 711, 717 (Minn. App. 2009) (quotation omitted), rev. granted
(Minn. Sept. 29, 2009) and appeal dismissed (Minn. Feb. 1, 2010).3
Appellant argues that the district cour t abused its discretion by denying his motion
to terminate his maintenance obligation because, since the loss of his job, his only income
has been from social security and respondent’s income exceeds his own, which, he argues,
constitutes a substantial change rendering hi s current maintenance obligation unfair or
unreasonable under Minn. Stat. § 518A.39, subd. 2. Appellant additionally argues that the
district court erred by considering assets that he had acquired after his marriage to
respondent because those assets were non-income producing and nonmarital. Respondent,
for her part, points out that the district court, by lowering ap pellant’s maintenance

3 Though Hemmingsen and Richards each dealt with an obli gor’s voluntary decision to
retire early, thus reducing the obligor’s income, see Hemmingsen, 767 N.W.2d at 715-17;
Richards, 472 N.W.2d at 164, the principles underlying those cases apply equally to
voluntarily disposing of income-producing a ssets in bad faith for the purpose of
terminating a maintenance obligation.
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obligation, did, in fact, recognize appellant’s reduced income. But, she argues, the district
correctly refused to termin ate maintenance because it pr operly found that appellant
willingly limited his income and gave away his assets in order to avoid his maintenance
obligation. She further contends that appellant forfeited any challenge to the district court’s
findings of bad faith because he failed to address the district court’s findings.
A. The district court was not required to terminate appellant’s
maintenance obligation because of the change in the parties’ incomes.

Starting with appellant’s assertion that th e change in the parties’ incomes demanded
termination of his maintenance obligation, we conclude that the district court did not abuse
its discretion by modifying, rather than terminating, maintenance. The district court found
that, though appellant had involuntarily lost his job, his reduced ability to pay maintenance
was partially based on his intentional dissipati on of assets, which the district court found
was done in bad faith to avoid his maintenance obligation. The district court supported its
order with factual findings related to appellant’s giving away of assets, including $52,000
that he gifted to his adult children and his vo luntary agreement to give M.L. a substantial
portion of his assets in their divorce, in cluding a nonmarital home and a significant
maintenance award. The district court also pointed to money that appellant distributed from
various bank accounts, appellant’s payment of M.L.’s bills after they were divorced, and
the lack of evidence in the record showing that appellant ever made a maintenance payment
to M.L.
These findings, which are supported by the record, are sufficien t for the district
court’s determination that appellant intentionally and in bad faith gave away his assets to
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avoid his maintenance obligation, making a continued maintena nce obligation not
unreasonable or unfair. Because the district court balanced the fact that appellant
involuntarily lost his employment against the fact that appellant intentionally and in bad
faith gave away assets, it did not abuse its discretion by lowering, rather than terminating,
appellant’s maintenance obligation despite the change in the parties’ incomes.4
B. The district court did not erroneousl y consider non-income-producing
assets.

Turning to appellant’s argu ment that the district court erred because it considered
non-income-producing assets, we conclude that it lacks merit. In general, maintenance
payments come from “future income or earnings.” Minn. Stat. § 518.003, subd. 3a (2020).
The district court found that appellant deliber ately and in bad faith gave away sizeable
income-producing assets in his settlement agreement with M.L. An obligor cannot, in order
to avoid a maintenance obligatio n, voluntarily liquidate a cap ital asset if it will diminish
his future earning capacity. See Sieber v. Sieber, 258 N.W.2d 754, 757 n.2 (Minn. 1977).
Further, the supreme court has held that distri ct courts can rely on the income-producing
potential of assets belonging to an obligee when determining maintenance and can even
require obligees to reinvest assets in a way that would produce more income. Curtis v.
Curtis, 887 N.W.2d 249, 253 (Minn. 2016); see also Honke, 960 N.W.2d at 269 (requiring
district courts “to consider whether the prin cipal of post-dissolution cash gifts is a source

4 Regarding respondent’s argument that appella nt forfeited his challenge to the district
court’s finding of bad faith by failing to address the district court’s findings in his briefing,
we do not need to decide the forfeiture issu e because the findings are supported by the
record.
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of income available for a maintenance recipient’s self-support”). Though Curtis and Honke
deal with an obligee’s, and not an obligor’s, se lf-limiting of earnings or income, the
principle logically applies to both situations and supports the conclusion that appellant’s
intentional giving away of income-producing assets to avoid his maintenance obligation
made a continued maintenance obligation not unreasonable or unfair.
Moreover, appellant cannot now complain that the district court failed to rule in his
favor when he did not provide the evidence to fully address the issue, especially when he
carried the burden of proof to terminate maintenance. See Kielley , 674 N.W.2d at 779;
Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (stating, in a child-
support appeal, that, “[o]n appeal, a party cann ot complain about a district court’s failure
to rule in her favor when one of the reasons it did not do so is because that party failed to
provide the district court with the evidence that would allo w the district court to fully
address the question”), rev. denied (Minn. Nov. 25, 2003). The district court found that
appellant “intentionally withheld discovery documents” from respondent “to hide his
dissipation” and that appellant “acted in bad faith in responding to [respondent’s] discovery
requests.” Because “[a] party has a duty to s upply financial information” to the district
court and “[f]ailure to do so justifies adverse inferences,” it was valid for the district court
to consider appellant’s refusa l to fully and in good faith participate in discovery when
determining whether to modify his maintenance obligation. Spooner v. Spooner , 410
N.W.2d 412, 413 (M inn. App. 1987); see also Tuthill v. Tuthill , 399 N.W.2d 230, 232
(Minn. App. 1987) (holding that a district c ourt may consider a party’s failure to provide
financial documentation when determining whether to modify maintenance).
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C. The district court did not err by considering nonmarital property.

Finally, appellant’s argument that the district court erred by considering appellant’s
nonmarital property is without merit. District courts can consider income realized from
nonmarital property when calculating an obligor’s ability to pay spousal maintenance. See
Lee v. Lee, 775 N.W.2d 631, 632 (Minn. 2009) (holding that the district court can consider
pension payments derived from benefits earned by the obli gor prior to and subsequent to
marriage to the obligee wh en calculating a maintenan ce obligor’s ability to pay
maintenance, while also holding that pensi on payments derived from benefits earned by
the obligor during the marriage and previously awarded to the obligor as marital property
could not be considered when determining his ability to pay maintenance).
In sum, the district court did not abuse its discretion when it denied appellant’s
motion to terminate his maintenance obligation and instead reduced his obligation.
II. The district court did not abuse its disc retion by ordering appellant to pay
conduct-based attorney fees.

Appellant argues that the district court a bused its discretion by ordering him to pay
conduct-based attorney fees under Minn. St at. § 518.14, subd. 1 (2020). District courts
may, in their discretion, award “additional fe es, costs, and disburse ments against a party
who unreasonably contributes to the length or expense of the proceeding.” Minn. Stat.
§ 518.14, subd. 1. 5 The party moving for attorney fees has the burden to show that the

5 Because neither party has questioned whethe r Minn. Stat. § 518.14, subd. 1, provides a
substantive basis for awarding conduct-based attorney fees, we as sume without deciding
that the statute does provi de a substantive basis. See Madden, 923 N.W.2d at 702; Geske
v. Marcolina , 624 N.W.2d 813, 818 n.5 (Minn. App. 2001) (discussing conduct-based
attorney fees).
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conduct of the other party warrants an award. Baertsch v. Baertsch, 886 N.W.2d 235, 238
(Minn. App. 2016). The district court must ma ke findings that explain the basis for an
award of conduct-based attorney fees. Brodsky v. Brodsky, 733 N.W.2d 471, 477 (Minn.
App. 2007). The award of conduct-based atto rney fees is reviewed for an abuse of
discretion. Sanvik v. Sanvik, 850 N.W.2d 732, 737 (Minn. App. 2014).
The district court did not a buse its discretion by ordering appellant to pay respondent
attorney fees she incurred between August and December 2020. The district court
explained that it awarded respondent conduct- based attorney fees because it found that
respondent was compelled to move the court to enforce appellant’s maintenance obligation,
that appellant permitted his life-insurance policy to lapse, and that appellant failed to fully
respond to respondent’s discovery requests. The discovery issues alone were sufficient to
justify the district court’s decision to awar d conduct-based attorney fees because the
findings related to discovery delay show that appellant “unreasonably contribute[d] to the
length or expense of the proceeding.” Minn. Stat. § 518.14, subd. 1; cf. Rask v. Rask, 445
N.W.2d 849, 855 (Minn. App. 1989) (affirming an award of conduct-based attorney fees
under Minn. Stat. § 518.14 (198 8) because a party “refused to cooperate in discovery”).
The district court’s award of conduct-based attorney fees was not an abuse of discretion.
Affirmed.