Marriage of Erlandson v. Erlandson

OTIS, Justice

(dissenting).

This appeal by Rose Helen Erlandson arises from an order for judgment and judgment and decree entered April 30,1980, granting respondent’s petition to dissolve the parties’ marriage on the grounds of irretrievable breakdown. The trial court awarded appellant maintenance of $125 per month pursuant to said dissolution. The basic issue on appeal is whether the trial court erred in the type and amount of maintenance awarded. I would reverse.

The parties were married on October 31, 1959. At the time of the dissolution, Marlin was 48 and Rose was almost 50 years of age. They had two children, one employed adult daughter and a minor son, both of whom were living with appellant.

Respondent is employed at an annual salary of $30,500, and was the provider of income for the family throughout the marriage. He testified at trial that he was not aware of any career advancement prospects although he did expect yearly salary increases. Although appellant worked before and for short periods of time after she married, for most of the 19 years of her marriage she was occupied as a full-time homemaker, primarily responsible for raising the Erlandsons’ two children. Before her marriage she had been employed as a comptometer operator, now an obsolete occupation. She received vocational training for typing in 1951 and again in 1979.

As a result of a series of automobile accidents, appellant’s physical abilities have been limited and she experiences a great deal of pain. She has had surgery on her neck and hands and has problems rotating her neck, lifting or grasping objects and reaching above her head. She has a maximum typing ability of 30 words per minute but has difficulty typing as her hands get sore, tired and swollen. At the time of the dissolution she was employed as an inventory control clerk at $3.40 per hour plus bene *41 fits of paid holidays and major medical, dental and life insurance. Although she knows of no opportunity for a salary raise, she intends to remain at the job because there is a possibility of advancement and her supervisor indicated that she was performing well.

An employment expert testified that Mrs. Erlandson’s age, lack of formal education and physical limitations made it unlikely that her employment prospects would improve with initial training and that she could ever earn a gross salary greater than $10,000 per year. Jobs requiring dexterity, coordination or lifting were inappropriate because of her physical disabilities and the problems she experienced with her hands and elbows would, in his opinion, prevent her from obtaining a job in a supervisory capacity or as a skilled secretary.

The trial court made the following division of the marital property:

Mr. Erlandson

Truck Equity 0.00

Trailer 500.00

Canoe 100.00

IRA Certificate 1,799.44

Savings Certificate 10,500.00

Checking Acct. 160.00

Savings Acct. 100.00

Insurance 2,923.00

Vs equity in homestead 14,555.52

30,637.96

Mrs. Erlandson

Household Goods 1,250.00

Checking Account 1.49

Trust Fund 400.00

Insurance 150.00

⅜ equity in homestead 29,111.04

30,912.53

Respondent was granted possession of the homestead and required to make the monthly mortgage payments of $170.15. The property was to be sold upon the occurrence of certain conditions, or within three years from the date of the decree.

After consideration of the assets, income, future income and needs of the parties, the trial court directed petitioner to pay $250 per month for support of the minor child until such child reached majority and maintenance in the sum of $125 per month until appellant’s death or remarriage or until further order of the court.

A trial court’s determination of a maintenance award will not be reversed on appeal unless this court determines that there has been an abuse of discretion. See e.g., Cooper v. Cooper, 298 Minn. 247 , 214 N.W.2d 682 (1974). Minn.Stat. § 518.552, subd. 2 (1980) calls for the trial court’s consideration of “all relevant factors” in determining maintenance payments. These factors include, among others, the financial resources of the party seeking maintenance and the other party’s ability to make payments, the duration of the marriage, and the age, physical and emotional condition of the party seeking maintenance. Id.

It is apparent that appellant meets the two basic conditions which establish a need for maintenance. First, the Erlandsons did not own substantial assets and Rose lacks sufficient property to provide for her needs. Second, her monthly expenses exceeded her net take-home salary, thereby establishing that she is unable to support herself through appropriate employment.

The Uniform Marriage and Divorce Act recognizes that the division of marital property is now viewed as the primary means of providing for the future financial needs of the spouses. See id., Commissioners’ Prefatory Note, 9A Uniform Laws Annotated 91, 93 (1979). In the present case the marital assets consist primarily of the homestead valued at $53,000, household goods, a savings certificate of $10,500, an IRA certificate of $1,800 and small amounts in checking and savings. Mrs. Erlandson was awarded a two-thirds equity in the homestead, a trust fund and various household goods. Mr. Erlandson received the savings certificate, IRA certificate, and a one-third share of the homestead. The homestead is to be sold within three years and while appellant will receive part of the proceeds from that sale she will also incur a substantial increase in her living expenses for housing.

This case presents a very different picture from the situation in Otis v. Otis, 299 N.W.2d 114 (Minn.1980). There Mrs. Otis *42 received a property settlement of well over $200,000.00, much of it in stock, an income-producing asset. This distinction is an important one. The value and income-producing capacity of the marital property bears on the need to award supplemental spousal maintenance. See In re the Marriage of Johnsrud, 175. Mont. 117, 572 P.2d 902 (1977). In determining whether the award of $125 per month was an abuse of discretion, we must recognize that the marital property awarded Mrs. Erlandson consists mainly of income-consuming rather than income-producing property. The record shows that even with the income from the money received as a personal injury settlement appellant does not have adequate funds to supplement her earnings. She has shown that she is unable to support herself independently and that her situation is unlikely to change. In view of the lengthy marriage, physical and vocational limitations of appellant, lack of income-producing assets in the marital property division, and Mr. Erlandson’s employment and ability to pay, in my opinion it was an abuse of discretion to award appellant only $125 per month.

I would reverse.