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This opinion is nonprecedential except as provided by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
A23-1365

In re the Marriage of:

Alessandra Pantano Orthey, petitioner,
Appellant,

vs.

Christopher Scott Orthey,
Respondent.

Filed July 22, 2024
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-FA-19-329

Kay Nord Hunt, Michelle K. Kuhl, Lommen Abdo, P.A., Minneapolis, Minnesota; and

Anne M. Honsa, Saarah Berenjian , Honsa Mara & Kanne, Minneapolis, Minnesota (for
appellant)

Joshua N. Brekken, Brekken Law, LLC, Roseville, Minnesota (for respondent)

Considered and decided by Connolly, Presiding Judge; Larson, Judge; and Jesson,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
NONPRECEDENTIAL OPINION
CONNOLLY, Judge
Appellant, a spousal -maintenance obligee, challenges the district court’s decision
that it lacked authority to award her permanent spousal maintenance after the expiration of
her temporary spousal maintenance. We affirm.
FACTS
Appellant Allessandra Pantano Orthey, now 49, and respondent Christopher Scott
Orthey, now 53, were married in January 1997. They have three children; the youngest,
born in August 2003, is now 20. They dissolved their marriage in September 2019.
The Stipulated Judgment and Decree stated that appellant “commenced a full-time
[27-month] Physician’s Assistant [PA] program on May 13, 2019 ,” and “thereafter . . .
hope[d] to become employed,” and that she “ha[d] the capacity to become self -supporting
after completion of her [PA] program and a period of re -entry into the workforce.” It
provided that appellant was awarded “as and for temporary spousal maintenance, the sum
of $5,800 per month through February 28, 2022,” and that additional spousal maintenance
would be an equal division of any bonus respondent received. It also provided that
“[r]espondent’s spousal maintenance obligation shall be reviewed de novo by December 1,
2021.” The judgment and decree did provide that “[respondent’s] award for spousal
maintenance is reserved.” The term “permanent spousal maintenance” does not appear in
the Stipulated Judgment and Decree or in any of the subsequent stipulations.
3
The parties’ Second Stipulation and Order to Amend Judgment and Decree 1 noted
that COVID had “extended the length of time it will take [appellant] to obtain her degree,”
extended the payment of temporary spousal maintenance to March 31, 2022, and s tated
that, by January 31, 2022, the p arties agreed to review de novo respondent’s temporary
spousal-maintenance obligation. The Third Stipulation and Order to Amend Judgment and
decree extended the deadline for de novo review of spousal maintenance to February 28,
2022, and the Fourth Stipulation and Order to Amend Judgment and Decree extended the
end of temporary spousal maintenance to July 1, 2022, and provided that de novo review
would occur before that date.
In August 2022, a fifth stipulation expanded the de novo review provision to include
the language “[a]s long as moving papers are served and filed prior to December 31, 2022,
the actual hearing may take place after January 1, 2023. If the hearing is held in January
2023, it will not impact the ability to modify the spousal maintenan ce retroactively to
December 31, 2022.” The fifth stipulation also provided that any bonus payments received
between July 1, 2022, and December 31, 2022, would not be divided with appellant.
Finally, in December 2022, a sixth stipulation noted that appe llant had completed
PA training and obtained a job at an hourly rate of $75 per hour and that the fifth stipulation
had “remov[ed] the component of spousal maintenance relating to [r]espondent’s bonus.”
It also expanded the de novo review provision to read “ [a]s long as moving papers are
served and filed prior to March 31, 2023, the actual hearing may take place after April 1,

1 Their First Stipulation did not concern spousal maintenance.
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2023. A placeholder affidavit and Notice of Motion and Motion is all that would be
required to preserve de novo review of [r]espondent’s spousal maintenance obligation.”2
Ten days after the March 31, 2023, deadline, appellant served and filed a motion for
permanent spousal maintenance of $5,800 per month. Respondent moved to dismiss the
motion as untimely. Appellant then sought de novo review and an order that respondent
pay her attorney fees incurred in bringing the motion. Appellant was scheduled to begin a
new position with an annual salary of $124,700 on or about August 1, 2023.
The district court denied appellant’s motion for permanent spousal maintenance on
the ground of untimeliness and also denied both parties’ requests for attorney fees.
Appellant challenges the denial of her motion.
DECISION
The district court determined that it lacke d the authority to modify appellant’s
spousal maintenance by awarding her permanent spousal maintenance ten days after the
termination of her temporary spousal maintenance. A district court’s authority to hear a
motion to modify spousal maintenance raises an issue of law that, when properly before
this court, is reviewed de novo. See Grachek v. Grachek , 750 N.W.2d 328, 331 (Minn.
App. 2008), rev. denied (Minn. Aug. 19, 2008).3
The district court observed that respondent “makes a somewhat technical
argument—that [appellant] failed to timely make a request for permanent spousal

2 Thus, respondent paid temporary spousal maintenance of $5,800 per month from
September 1, 2019, to March 31, 2023, or for 43 months.
3 There is no argument that this issue is not properly before this court.
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maintenance, and this prevents the [district c ]ourt from addressing the issue of permanent
spousal maint enance now” and that “where a [c]ourt establishes temporary spousal
maintenance and reserves permanent spousal maintenance, the motion for permanent
spousal maintenance must be made before the end of the temporary maintenance
obligation.”
The district court cited four cases that support respondent’s argument: Loo v. Loo,
520 N.W.2d 740, 745 (Minn. 1994) (“Once maintenance payments end, the [district] court
is without jurisdiction to modify maintenance.”); Eckert v. Eckert, 216 N.W.2d 837, 840
(Minn. 1974) (“[T]here cannot be modification of something that has ceased to exist.”);
Moore v. Moore, 734 N.W.2d 285, 288-289 (Minn. App. 2007) (citing Loo and Eckert and
holding that “the district court has no authority to address a motion to modify maintenance
that is made after the maintenance obligation expires”), rev. denied (Minn. Sept. 18, 2007);
and Diedrich v. Diedrich , 424 N.W.2d 580, 583 (Minn. App. 1988) (“Generally, if the
maintenance obligation terminates under the terms of the original decree, and the [district]
court has not expressly reserved jurisdiction, the court is thereafter without jurisdiction to
modify.”).
The district court found that “the Fifth Stipulation and Sixth Stipulation very clearly
addressed the steps necessary to preserve a request for permanent spousal maintenance by
adding the ‘as long as moving papers are served and filed prior to’ requirement” and the
sixth stipulation specified that “A placeholder affidavit and Notice of Motion and Motion
is all that would be required to p reserve de novo review of [r]espondent’s spousal
maintenance obligation.” Based on these findings, the district court determined that, when
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appellant signed the sixth stipulation on December 15, 202 2, “she knew that she (i) must
file a motion to establish spousal maintenance by March 31, 2022; and (ii) . . . a minimal
placeholder motion would be sufficient to preserve her right to make the request.” The
district court also found that appellant had ab out 100 days to file the motion and that, in
her April 26, 2023, affidavit, she “[did] not credibly explain why she didn’t comply with
the clear requirements of the Sixth Stipulation.”
Appellant’s affidavit supports this finding. In it, appellant descri bes a Zoom
meeting of the parties, their lawyers, and the mediator on March 29, 2023, at which she
“extended a proposal for . . . ongoing spousal maintenance.” But she does not say she filed
a placeholder motion or took any other action until April 10, 20 23, when she served and
filed her motion for permanent spousal maintenance, and she does not offer any
explanation of why she waited until April 10 to file a motion when she had known since
December 16 that the deadline was March 31. The affidavit also sa ys that appellant had
accepted a position starting around August 1, 202 3, from which she would earn $124,700
annually.
The district court observed that appellant does not have “a significant cognitive or
physical impairment preventing gainful employment ,” and did not “lack [] sufficient
education to understand the terms of the various Stipulations”; that both parties had been
represented by experienced attorneys throughout; and that appellant was not “a self -
represented litigant [who] through inadvertent carelessness missed a deadline,” supporting
the conclusion that “ [t]he equities do not favor a deviation from the result required by”
Loo, Eckert, Moore, and Diedrich.
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Appellant argues that, because the stipulation did not say the district court would
cease to have jurisdiction after the specified date of the end of temporal maintenance, it
implicitly reserved and retained jurisdiction. But nothing in any of the four cases imposes
an obligation to state the law on jurisdiction in a stipulation, and appe llant cites no case
where this has been required. Moreover, the parties’ agreements indicate in two ways that
they knew how to reserve jurisdiction, in two ways. First : the end of temporary
maintenance is always after or at the same time as the other dea dlines because the district
court would have no jurisdiction after it ended. Second, as respondent points out, the
parties did explicitly reserve other items in the stipulated judgment and decree. For
example, the stipulated judgment and decree state that “[t]he parties agree that it is in the
best interests of the [parties’ youngest] child for [appellant’s] child support obligation to
be reserved given the financial situation of both parties,” and “[r]espondent’s award for
spousal maintenance is reserved.” Thus, the parties knew how to reserve an issue, and did
not reserve permanent spousal maintenance.
Appellant relies on two nonprecedential opinions that found a spousal maintenance
obligation to exist after payments of temporary spousal maintenance had terminated.
“Nonprecedential opinions and order opinions are not binding authority except as law of
the case, res judicata, or collateral estoppel, but nonprecedential opinions may be cited as
persuasive authority.” Minn. R. Civ. App. P. 136.01, subd. 1(c). 4 Both nonprecedential

4Appellant also relies on an order opinion, but order opinions, unlike nonprecedential
opinions, are not to be cited as pers uasive authority. See Minn. R. Civ. App. P. 136.01,
subd. 1(c).
8
opinions are distinguishable.
Carlson v. Carlson, No. A07-1432, 2008 WL 3289058, at *1 (Minn. App. Aug. 12,
2008) concerned a dissolution judgment providing that the obligor would pay the obligee
temporary spousal maintenance from January to December in 2004 and pay her tuition
through the earlier of December 2005 or the completion of her graduate degree. Carlson,
2008 WL 3289058, at *2. The obligor paid spousal maintenance for some time after
December 2004 and in August 2006 moved for an order confirming that the district court
had no jurisdiction to award ongoing spousal maintenance. See id. at *1. Thus, the decree
itself provided for payments to be made after temporary spousal maintenance was finished.
There is no analogous provision in the stipulation here; the stipulations are explicit as to
when respondent’s obligation would finish, and respondent made no payments not covered
by the stipulations. Moreover, the stipulation in Carlson provided a specific procedure for
the parties to follow “to address spousal maintenance” after December 2004, from which
the district court concluded, and this court agreed, that while the stipulated dissolution
“arguably permit[ted the obligor] to cease payment of temporary spousal maintenance as
of December 31, 2004, it reserve[d] the issue of permanent spousal maintenance.” Id. at
*1-4. Again, there was no analogous provision in the stipulation here.
In Wilke v. Wilke, No. C8-95-42, 1995 WL 351680 (Minn. App. Jun. 13, 1995), the
obligor argued that a district court’s 1991 order granted an obligee’s 1991 motion and
extended maintenance “for three years subject to the Court’s review at the end of that
period.” The district court said that this language “did not establis h a hard and fast
deadline” but rather “anticipated review approximately three years after the previous order”
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and granted the obligee’s October 1994 motion for permanent maintenance. Wilke, 1995
WL 351680 , at *1 (quotations omitted). This court “defer[red] to the district court’s
interpretation of its own order” and affirmed. Id. In contrast, the language of the
dissolution judgment and the stipulations here is explicit in setting dates; there is nothing
to interpret.
The district court did not err in concluding that, after appellant’s temporary -
maintenance awarded ended, it had no authority over her motion for permanent spousal
maintenance.
Affirmed.