In re the Marriage of: Deborah Ann Barnett, petitioner, Appellant,

This opinion is nonprecedential except as provided by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
A22-0953

In re the Marriage of: Deborah Ann Barnett, petitioner,
Appellant,

vs.

Timothy John Barnett,
Respondent.

Filed May 30, 2023
Affirmed
Bryan, Judge

LeSueur County District Court
File No. 40-FA-13-899

Michelle K. Olsen, Jacob M. Birkholz, Birkholz & Associates, LLC, Mankato, Minnesota
(for appellant)

Seungwon R. Chung, Michael P. Boulette, Abby N. Sunberg, Taft Stettinius & Hollister
LLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Bryan, Presiding Judge; Johnson, Judge; and Hooten,
Judge.
*
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this appeal from the district court’s denial of her motion to modify spousal
maintenance, appellant-wife argues that the district court erred in concluding that it lacked

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
authority to modify spousal maintenance. We affirm the district court’s decision. The
district court could not modify spousal maintenance because it did not expressly award
spousal maintenance or expressly reserve a decision regarding an award of spousal
maintenance when it entered the initial dissolution judgment and decree .
FACTS
Appellant Deborah Ann Barnett (wife) and Timothy John Barnett (husband) were
married in 1987. In August 2013, wife filed a petition for dissolution. The parties agreed
to arbitrate several issues, including property division and spousal maintenance. The
parties agreed that the arbitrator’s decision would be binding and “subject only to
modification or vacation pursuant to Minnesota Statutes 572.19 and 572.20 (mistake, fraud,
corruption, or partiality or arbitrator exceeded powers).”
On May 28, 2014, the arbitrator issued its Findings of Fact, Conclusions of Law,
Order for Judgment and Judgment and Decree. On July 16, 2014, the district court signed
and adopted the arbitrator’s May 28, 2014 order (the 2014 arbitrated decree).1 The 2014
arbitrated decree included findings of fact and conclusions of law apportioning various
marital property, assets, and debts. It also contained the following findings regarding the
parties’ income and need for spousal maintenance:
10. [Wife’s] Employment, Income and Needs. [Wife] is
currently unemployed. [Wife] stipulated that she is capable of
being self-supporting, is not in need of spousal maintenance,
and waives her right to receive temporary or permanent spousal
maintenance from [Husband].

1 The parties agreed that there would be no transcript or other record of the arbitration
proceedings. The absence of this documentation f rom the appellate record, however, does
not affect our analysis.
3
11. [Husband’s] Employment, Income and Needs.
[Husband] is employed by Johnson’s Trucking and has an
approximate gross monthly income of $2,400.00. [Husband]
is self-supporting, is not in need of spousal maintenance, and
waives his right to receive temporary or permanent spousal
maintenance from [Wife].

12. [Husband’s] Business Interest. [Husband] also has a side
business in which he does electrical work.

Based on these findings, the 2014 arbitrated decree included the following conclusion of
law regarding spousal maintenance:
2. Spousal Maintenance. Neither party shall pay temporary
or permanent spousal maintenance to the other and the parties
hereby waive any right to have the other pay temporary or
permanent spousal maintenance. The parties are forever barred
from receiving any spousal maintenance whatsoever from the
other. This Court divests itself of any further jurisdiction on
the issue of spousal maintenance from one party to the other.
The denial of spousal maintenance and this Court’s divestiture
of f urther jurisdiction on the issue of spousal maintenance, is
consistent with the principles of Karon v. Karon, 435 N.W.2d
501 (Minn. 1989), as codified at M.S. § 518.552, subd. 5.
Neither party shall ever be successful in obtaining an Order for
spousal maintenance from the other.

On December 18, 2020, approximately six-and-a-half years after the 2014 arbitrated
decree, wife made the following three requests: (1) that the district court vacate the property
allocation and spousal maintenance portions of the 2014 arbitrated decree; (2) that the
district court award wife spousal maintenance; and (3) that the district court award wife
conduct- and need -based attorney fees in connection with the modification motion. In
support of her request, wife alleged that husband had committed “fraud on the court.” She
also argued that the parties’ waiver of spousal maintenance was invalid.
4
The district court denied the portion of wife’s motion pertaining to property
allocation, concluding that wife had not established a basis for reopening the record based
upon fraud. 2 The district court also concluded that it lacked authority to modify spousal
maintenance because there was no spousal maintenance award ed in the 2014 arbitrated
decree. The district court further reasoned that the validity of the parties’ waiver had no
effect on its analysis of whether it could modify maintenanc e.3 Finally, the district court
denied wife’s request for attorney fees. Wife appeals.
DECISION
On appeal, wife argues that the 2014 arbitrated decree contains an invalid waiver of
spousal maintenance and that the district court therefore retained “jurisdiction”4 to modify
spousal maintenance.5 We conclude that because the district court never awarded spousal
maintenance in the first instance, it could not modify maintenance.
Upon the dissolution of a marriage, a district court may award spousal maint enance
to a party if, among other things, that party “has demonstrated a showing of need.” Madden

2 The district court did find that one marital asset, an IRA in husband’s name, was not
addressed in the 2014 decree, and ordered the parties to divide that account.
3 The district court initially agreed with wife that the parties’ waiver was invalid, ordered
an evidentiary hearing on the issue of spousal mai ntenance, and reserved the issue of
attorney fees. However, husband moved for the district court to revise its order pursuant
to Minnesota Rule of Civil Procedure 54.02. The district court granted husband’s motion
and modified its original order to deny wife’s requests in their entirety.
4 For purposes of this appeal, we assume, without deciding that a type of jurisdiction is at
issue in this case. But see Moore v. Moore , 734 N.W.2d 285, 287 n.1 (Minn. App. 2007)
(noting that parties and courts often use words and concepts associated with jurisdiction
imprecisely and declining to address whether subject matter jurisdiction was actually at
issue in the spousal maintenance modification dispute ), rev. denied (Minn. Sept. 18, 2007).
5 Wife does not argue on appeal that the district court erred in denying the portions of her
motion relating to property allocation and attorney fees.
5
v. Madden, 923 N.W.2d 688, 695 (Minn. App. 2019); see also Minn. Stat. § 518.552, subd.
1 (2022) (establishing grounds upon which a district court may award spousal
maintenance). Once spousal maintenance has been awarded, “[p] arties to a dissolution
action have a general statutory right to seek modification of a maintenance award .”
Grachek v. Grachek , 750 N.W.2d 328, 331 (Minn. App. 2008), rev. denied (Minn. Aug.
19, 2008) ; see Minn. Stat. § 518A.39, subd. 2 (2022) (providing for modification of
maintenance orders).
A district court cannot modify spousal maintenance, however, if the original decree
neither awarded maintenance nor expressly reserved the issue, as doing so would involve
“modification of something that never existed.” McCarthy v. McCarthy, 196 N.W.2d 305,
308 ( Minn. 1972); see also Stolp v. Stolp, 383 N.W.2d 409, 413 (Minn. App. 1986)
(concluding that the district court “ had no jurisdiction to award maintenance ” in “ a
situation where absolutely no maintenance was ever awarded ”). A district court also loses
authority to modify maintenance following the end of a mainte nance award, Eckert v.
Eckert, 216 N.W.2d 837, 839- 40 (Minn. 1974), quoted in Moore, 734 N.W.2d at 287- 89,
or if it modifies maintenance to zero and does not expressly reserve authority to review
that decision in the future, Berger v. Berger, 242 N.W.2d 836, 837 ( Minn. 1976).
Separate and apart from the above cases, the parties can also waive their right to
request future modifications of spousal maintenance, commonly known as a Karon waiver.
Loo v. Loo, 520 N.W.2d 740, 744 (Minn. 1994); see Karon v. Karon, 435 N.W.2d 501,
503-04 (Minn. 1989) (holding that parties may waive the right to modify maintenance);
Minn. Stat. § 518.552, subd. 5 (2022) (codifying Karon waivers with additional
6
limitations);6 Gossman v. Gossman, 847 N.W.2d 718, 724 (Minn. App. 2014) (noting that
“a Karon waiver is a matter of jurisdiction, not a matter of contract ” (footnote omitted)).
If a Karon waiver satisfies four requirements, the waiver divests the district court of its
authority to modify the spousal maintenance awarded. Butt v. Schmidt, 747 N.W.2d 566,
573 (Minn. 2008) ( listing the four requirements); see also, e.g., Keating v. Keating, 444
N.W.2d 605, 606-08 (Minn. App. 1989) (concluding that the district court had authority to
modify because the parties’ Karon waiver lacked express divestiture language), rev. denied
(Minn. Oct. 25, 1989); Grachek, 750 N.W.2d at 333- 34 (concluding that the district court
had authority to order cost -of-living adjustment because the parties’ Karon waiver did not
expressly preclude doing so). This court reviews such legal questions and the interpretation
of dissolution judgments de novo. Grachek, 750 N.W.2d at 331.
Wife argues that the Karon waiver in the 2014 arbitrated decree was invalid, and
therefore, the waiver did not divest the district court of its authority to modify spousal
maintenance. Husband does not dispute the validity of the Karon waiver, arguing instead
that the district court has no authority to modify the 2014 arbitrated decr ee because the
decree did not include an initial award of spousal maintenance . We agree with husband.
In this case, wife notes that the 2014 arbitrated decree cites Karon and includes
statements from the parties waiving their rights to modify spousal maintenance. However,

6 The 2012 version of the statute was in effec t at the time of the 2014 arbitrated decree, but
we cite the most recent version because the subsequent revisions do not affect the
disposition of this case. See Interstate Power Co. v. Nobles Cnty. Bd. of Comm’rs , 617
N.W.2d 566, 575 (Minn. 2000) (stating that, generally, “appellate courts apply the law as
it exists at the time they rule on a case”).
7
the 2014 arbitrated decree did not include an award of spousal maintenance. Nor did the
2014 arbitrated decree include language reserving a decision on whether to award either
party spousal maintenance. Instead, the 2014 arbitrated decree states that “[n] either party
shall pay temporary or permanent spousal maintenance to the other.” In addition, the 2014
arbitrated decree memorialized the parties’ decisions not to seek an initial award of spousal
maintenance: “the parties hereby waive any right to have the other pay temporary or
permanent spousal maintenance.” 7 For this reason, we conclude that w ife’s December
2020 spousal maintenance modification motion requested “modification of something that
never existed.” McCarthy, 196 N.W.2d 308. Pursuant to the holdings in McCarthy and
Stolp, the adoption of the 2014 arbitrated decree (and the decision not to appeal at that
time) ended the district court’s authority to modify over spousal maintenance .8
Affirmed.

7 A decision not to seek an initial award of spousal maintenance should not be confused
with a waiver of one’s statutory right to modify an award of spousal maintenance.
8 Portions of wife’s brief appear to argue that the 2014 arbitrated decree awarded each party
$0.00 in permanent spousal maintenance. We remain unconvinced to reverse given the
language of the decree and the absence of language to support wife’s interpretation.
Moreover, even if wife were correct, the district court would have no authority to modify
an award of $0.00. See Berger, 242 N.W.2d at 837 (“[I]f the court modifies an award of
alimony to zero and does not retain jurisdiction to reins tate it at some future time,
jurisdiction is also lost.”) ; see also Eckert , 216 N.W.2d at 839 (concluding that a district
court loses authority to modify spousal maintenance when the term of the obligation ends
because “there cannot be modification of something that has ceased to exist”).