IN RE MARRIAGE OF HAUS

UNPUBLISHED OPINION

FORSBERG, Judge

Appellant challenges the district court's order modifying child support and spousal maintenance. Appellant asserts that the district court abused its discretion by (a) refusing to eliminate spousal maintenance; (b) failing to make the modified-maintenance award retroactive to the date the motion for modification was filed; and (c) imposing a cost-of-living adjustment for both child support and spousal maintenance. We affirm in part and reverse in part.

FACTS

The parties' approximately 27-year marriage was dissolved in 1996. The district court awarded sole physical and legal custody of the parties' two minor children to respondent Janis Marie Haus and ordered appellant Ronald Thomas Haus to pay monthly child support and permanent spousal maintenance. The district court later amended its findings of fact, conclusions of law, and order for judgment to reflect a lower imputed monthly income for appellant, thereby lowering his child support and spousal maintenance obligations.

In August 1998, appellant moved for a reduction of child support and spousal maintenance obligations, as a result of his disabling back and neck injuries. He also moved for a denial of biennial cost-of-living adjustment (COLA) increases to his child support and maintenance obligations. Accordingly, the district court modified both obligations to reflect appellant's change in financial circumstances. The court found that appellant's only source of income was from worker's compensation benefits and determined that appellant's changed financial circumstances justified a significant reduction of child support and spousal maintenance. Further, the court imposed a nominal COLA for both obligations and ordered the modified obligations and COLAs effective January 1, 1999. It is from this order that appellant seeks relief.

DECISION I. Termination of Maintenance

The standard of review for a modification of spousal maintenance is whether the district court abused its discretion. Dougherty v. Dougherty, 443 N.W.2d 193, 194 (Minn.App. 1989). This court will reverse only if the district court's order reflects a "clearly erroneous conclusion that is against logic and the facts on the record." Rutten v. Rutten, 347 N.W.2d 47, 50 (Minn. 1984).

A district court's modification of spousal maintenance is to be examined in light of the controlling statutory factors set forth in Minn. Stat. § 518.64 (1998). In pertinent part, subdivision 2(a) allows modification of maintenance if the moving party demonstrates a substantial change in a party's income or need, as well as unfairness resulting from that change. Minn. Stat. § 518.64, subd. 2(a). Additionally, a former spouse should share in the financial burden as if the parties' marriage were still intact when the burden was not the product of a party's bad faith. Giesner v. Giesner, 319 N.W.2d 718, 720 (Minn. 1982).

Although the district court reduced appellant's maintenance from $300 to $91, appellant argues that maintenance should be terminated entirely because a disabling injury has rendered him permanently incapable of generating income through employment. Appellant maintains that the district court erred in failing to consider respondent's complete financial picture. Appellant contends that the court should have considered respondent's other sources of "income," namely respondent's student loans, as well as respondent's ability to work.

Appellant argues that the income of minor children should be included in calculating the respondent's income. Appellant cites no authoritative caselaw, and therefore, has waived the issue. See Schoepke v. Alexander Smith Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (stating argument based on mere assertion, unsupported by argument or authority is deemed waived).

Appellant's argument that respondent's student loans in excess of tuition should be considered income overlooks the fact that appellant bore the burden of proving an increase in respondent's income. See Meyers v. Meyers, 409 N.W.2d 532, 534 (Minn.App. 1987) (stating moving party must demonstrate change in earnings or need). Although during the January hearing appellant elicited the fact that respondent received student loans that she applied towards her living expenses, he made no attempt to learn the amount of those loans or to establish that her receipt of them represented a substantial change in her income. Thus, appellant has not met his burden of demonstrating an increase in respondent's income.

In addition, contrary to appellant's argument that respondent's willful failure to seek gainful employment is in bad faith, an obligee awarded permanent maintenance is under no obligation to become self-sufficient. See Schroeder v. Schroeder , 405 N.W.2d 267, 269 (Minn.App. 1987) (stating former spouse awarded permanent maintenance is under no duty to work full-time and become self-sufficient); see also Sand v. Sand, 379 N.W.2d 119, 124 (Minn.App. 1985) (holding former spouse granted permanent maintenance not obligated to increase earning potential), review denied (Minn. Jan. 31, 1986).

The record supports the court's determination that neither party could meet their basic needs. The court made specific findings that (a) both parties should bear this burden as if the marriage was still cohesive and (b) the modification was the product of a compromise where neither party was subject to undue hardship. See Giesner, 319 N.W.2d at 720 (stating parties should share financial burden as if marriage still intact); Meyers, 409 N.W.2d at 535 (affirming lower court's refusal to terminate maintenance even where obligor's expenses exceeded his monthly income). In light of these facts, the district court did not abuse its discretion by refusing to eliminate maintenance entirely.

II. Retroactivity of Modification

Retroactive modification of a maintenance order is within the discretion of a district court. Guyer v. Guyer, 587 N.W.2d 856, 859 (Minn.App. 1999), review denied (Minn. Mar. 30, 1999). Under Minn. Stat. § 518.64, subd. 2(d), a district court has the discretion to order a modification retroactive during the time in which the petitioning party has a motion pending.

Appellant did not ask for retroactive application of the modified maintenance order at the district court level, but rather raised the issue for the first time in this appeal. Because appellant did not raise the issue below, this court need not consider the question here. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding issues which were not preserved for appeal below are not to be considered by reviewing court).

Although we need not reach the issue, we briefly address it to emphasize our conclusion that the district court acted within its broad discretion by ordering a January 1, 1999, effective date. See Guyer, 587 N.W.2d at 859 (holding two-month discrepancy between filing and commencement was not abuse of discretion).

III. Cost-of-Living Adjustment

On appeal, cost-of-living adjustments (COLAs) are reviewed by an abuse of discretion standard. McClenahan v. Warner, 461 N.W.2d 509, 511 (Minn.App. 1990). However, the district court's discretion is limited to granting or denying a COLA, not the broad range afforded a court in a child support modification proceeding. Id.

COLAs are governed by statute. See Minn. Stat. § 518.641 (1998) (describing procedure for implementing COLAs). COLAs are automatic and occur every two years, provided the statutory conditions are met. McClenahan, 461 N.W.2d at 511. The adjustment should not take effect if the obligor can establish an insufficient increase in income. Huizinga v. Huizinga, 529 N.W.2d 512, 514 (Minn.App. 1995) (holding COLA for support obligations mandatory if statute applied unless obligor could demonstrate insufficient increase to support adjustment). It is within the district court's discretion to waive the COLA requirement if the court expressly finds that, "the obligor's income or occupation does not provide for a cost-of-living increase." Blomgren v. Blomgren, 367 N.W.2d 918, 921 (Minn.App. 1985) (holding statute places burden of demonstrating insufficient increase on obligor).

As appellant notes, the award of a COLA implies that appellant's financial situation has improved. See id. (stating COLA reflects obligor's increase in income in addition to children's needs rising with inflation). The district court explicitly found that appellant did not have the ability to pay his existing support obligations and that such obligations were both unreasonable and unfair. The court also found, however, that appellant did not meet his burden in establishing an insufficient income to support the COLAs. These two findings are incongruous. Because the record supports the finding of appellant's inability to meet his expenses, we reverse the award of the COLAs on the child support and maintenance obligations.

Affirmed in part and reversed in part.