                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1261

                    In re the Marriage of: Michelle Curtis, petitioner,
                                        Appellant,

                                            vs.

                                 Christopher John Hanna,
                                       Respondent.

                                    Filed June 1, 2015
                                        Affirmed
                                       Reyes, Judge

                              Olmsted County District Court
                                 File No. 55F501001729

David L. Liebow, Thomas R. Braun, Restovich Braun & Associates, Rochester,
Minnesota (for appellant)

Kristine L. Dicke, Ryan & Grinde, Ltd., Rochester, Minnesota (for respondent)

       Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and

Stoneburner, Judge.*

                         UNPUBLISHED OPINION

REYES, Judge

       On appeal from the district court’s denial of her motion to modify her maintenance

award, appellant-wife argues (1) the record does not support the district court’s finding


*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art, VI, § 10.
that she failed to make an adequate effort to rehabilitate and (2) she was entitled to a

rebuttable presumption that the existing maintenance award was unreasonable and unfair.

We affirm.

                                          FACTS

       Appellant Michelle Curtis and respondent Christopher Hanna were married in

1990 in British Columbia, Canada. The parties have three children, all of whom are now

emancipated. The parties separated in 2001 and negotiated a marital-termination

agreement (MTA) executed on January 30, 2004. The district court later entered a

dissolution judgment based on the MTA and, pursuant to the stipulated judgment,

appellant was granted sole physical custody of the children and resided in New Zealand.

       The judgment required respondent to pay appellant $2,600 per month in spousal

maintenance, and stated that respondent’s maintenance obligation would terminate after

(1) a liquidation of joint holdings yielded appellant $1,000,000; (2) appellant’s

remarriage, cohabitation with an unrelated adult male, or the death of either party; or

(3) a period of ten years, set to end on January 31, 2014. Respondent’s spousal-

maintenance obligation received biannual cost-of-living adjustments and could be

adjusted based on appellant’s employment and education.

       At the time of the dissolution, appellant earned NZ$11.001 per hour working as a

part-time gardener, while respondent earned a gross annual income of $205,000.

Following the dissolution, appellant worked in administrative positions for various


1
 “NZ$” refers to the New Zealand dollar. All monetary amounts mentioned in this
opinion that are not designated “NZ$” are in U.S. dollar amounts.

                                              2
companies in New Zealand. Appellant’s most recent position was with Apollo Medical

Centre, where she worked 24 hours per week at NZ$25.75 per hour as a quality

administrator. Appellant’s position with Apollo was discontinued in 2012 due to

restructuring. Apollo offered appellant two options: (1) a redundancy payout of

NZ$5,098.50 or (2) an opportunity to apply for one of two newly created positions. One

position was full time with an annual salary of NZ$50,960, and the other was part time

with an annual salary of NZ$38,837.76. Appellant did not apply for either of these

positions. Appellant submitted 13 job applications in 2012, none in 2013, and is

currently unemployed. Appellant acknowledges that she has not obtained any additional

education or training, as was discussed at the time of dissolution. She cites various

factors that prevented any additional education, including financial resources, the

children’s needs, credits not transferring, and medical conditions.

       Between 2005 and 2012, respondent worked for Varian Medical Systems as a

software sales manager. He received bonuses and incentives on top of his base salary and

averaged an annual income of approximately $427,766.40. At the time of appellant’s

modification motion, respondent worked for OneMedNet Corporation as an executive,

where he earned an annual salary of approximately $225,000 plus stock options and a

bonus of up to 50% of his annual salary. The parties agree that it is reasonable to expect

respondent’s average annual income at OneMedNet to be substantially similar to his

previous income.

       Appellant served a motion seeking modification of the spousal-maintenance

obligation on January 3, 2014. In her motion, appellant asked the district court to extend


                                             3
spousal maintenance by five years and increase the award from $2,600 to $12,000 per

month. The district court denied her motion. The district court reasoned that appellant

had not made adequate efforts at rehabilitation sufficient to modify the provisions of the

originally stipulated decree. The district court stated that although respondent’s change

in income constitutes a substantial change in circumstances, appellant failed to

demonstrate how those changes rendered the original decree unreasonable or unfair.

Appellant submitted a motion for amended findings, which the district court denied. This

appeal follows.

                                      DECISION

       This court reviews a district court’s decision concerning modification of spousal

maintenance for an abuse of discretion. Hecker v. Hecker, 568 N.W.2d 705, 710 (Minn.

1997). A district court abuses its discretion if it makes a “clearly erroneous conclusion

that is against logic and the facts on record.” Dobrin v. Dobrin, 569 N.W.2d 199, 202

(Minn. 1997).

       Appellant makes two arguments on appeal: (1) the record does not support the

district court’s finding that she failed to make an adequate effort to rehabilitate and

(2) the district court failed to grant her a rebuttable presumption that the existing

maintenance award is unreasonable and unfair.

I.     Whether appellant undertook sufficient efforts to rehabilitate.

       A reviewing court defers to a district court’s findings of fact and will uphold them

unless they are clearly erroneous. Antone v. Antone, 645 N.W.2d 96, 100 (Minn. 2002).

“Findings of fact are clearly erroneous where an appellate court is left with the definite


                                              4
and firm conviction that a mistake has been made.” Goldman v. Greenwood, 748

N.W.2d 279, 284 (Minn. 2008) (quotation omitted).

       Here, the district court awarded temporary spousal maintenance of $2,600 per

month to appellant. See Minn. Stat. § 518.552, subd. 2 (2014) (stating that “maintenance

order[s] shall be in amounts and for periods of time, either temporary or permanent”).

“After temporary maintenance has been awarded, an obligee generally has the duty to

rehabilitate.” Youker v. Youker, 661 N.W.2d 266, 269 (Minn. App. 2003), review denied

(Minn. Aug. 5, 2003). Rehabilitation efforts include an “implied duty to pursue

(1) further education and (2) better employment.” Id. at 270. In accordance with this

duty, the Minnesota Supreme Court has affirmed the attribution of income to a spouse

who “chose not to make any serious effort at obtaining vocational training or work

experience.” Hecker, 568 N.W.2d at 708, 710.

       The district court did not commit clear error in finding that appellant failed to

make reasonable efforts to rehabilitate. Appellant sought limited educational or

vocational training to further her job prospects despite living in close proximity to three

universities. The only training appellant received during the maintenance period—CPR

training, a money management certificate, a two-day course on quality management, and

a 48-hour course on Reiki massage training—was unrelated to her employment field and

did not serve to increase her prospects for employment. In addition, appellant’s claim

that jobs were simply unavailable is undercut by the fact that Apollo invited her to apply

for two newly created openings when her position was discontinued in 2012, but

appellant chose not to apply. And while appellant applied to a number of other jobs in


                                              5
2012, the majority of these were part-time positions in unrelated fields. Since those

initial submissions, appellant has submitted no applications for employment and has not

enrolled in any educational or vocational training.

       Appellant next argues that she was unable to rehabilitate because of health issues

and asserts that the district court erred by inappropriately highlighting respondent’s

health concerns while minimizing appellant’s. But the district court specifically

addressed appellant’s health concerns and detailed her gallbladder removal, peritonitis,

adhesions and scar tissue, hearing loss, and fibromyalgia. After acknowledging these

afflictions, the district court simply disagreed with appellant’s claim that they rendered

her incapable of securing employment. Such a finding is supported by the record.

Appellant’s own documents fail to state that she is incapable of self-support. In fact, one

medical report indicates that her abdominal pain level is “moderate” and another states

that “everything appears to be moving in the right direction with her blood tests returning

to within the normal range and her abdominal examination showing no signs of

significance.” Moreover, it is unclear how appellant’s health conditions affected her

employment search when most of them occurred prior to her losing the position at Apollo

in 2012. Because this finding is not “manifestly contrary to the weight of the evidence or

not reasonably supported by the evidence as a whole,” the district court did not commit

clear error. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (quotation omitted).

       Lastly, appellant briefly argues that her childcare responsibilities limited her to

part-time work and that the district court erred by disregarding this limitation. On the

contrary, the district court stated that “[w]hile caring for the joint children certainly


                                               6
limited [appellant’s] options, she was afforded ample time to formulate a plan and

acquire meaningful education and training these past ten years.” The district court also

noted that the children were all enrolled in school at the time of the decree with busing

available as transportation. Moreover, at the time appellant first became unemployed, the

youngest child was already 17 years old. Accordingly, the district court’s finding that it

“does not find [appellant] credible in this regard” is not clearly erroneous. See Antone,

645 N.W.2d at 100; Gada v. Dedefo, 684 N.W.2d 512, 514 (Minn. App. 2004) (stating

that appellate courts “neither reconcile conflicting evidence nor decide issues of witness

credibility, which are exclusively the province of the factfinder”).2

       A review of the record reveals that there is “reasonable evidence . . . to support the

[district] court’s findings.” See Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790,

797 (Minn. 2013) (quotation omitted). Although appellant may believe that the record

possesses some support for a finding of rehabilitation, there is not enough to conclude

that the district court’s finding was clearly erroneous. See Vangsness v. Vangsness, 607

N.W.2d 468, 474 (Minn. App. 2000) (“That the record might support findings other than

those made by the [district] court does not show that the court’s findings are defective.”).




2
 We also note that the parties entered into a marital termination agreement that was
negotiated by the parties and specifically contemplated appellant’s needs. The Minnesota
Supreme Court has “cautioned the district court to exercise its considerable discretion
carefully and only reluctantly when it is faced with a request to alter the terms of an
agreement which was negotiated by the parties.” Beck v. Kaplan, 566 N.W.2d 723, 726
(Minn. 1997).

                                              7
II.    Whether appellant was entitled to a rebuttable presumption that the original
       maintenance order was unreasonable and unfair.

       A district court may modify spousal maintenance if a substantial change in

circumstances makes the original amount unreasonable and unfair. See Minn. Stat.

§ 518A.39, subd. 2(a) (2014). Changed circumstances can be established by showing a

substantial increase or decrease in the gross income or need of either the obligee or the

obligor. Id. The movant for modification bears the burden of demonstrating a substantial

change in circumstances that renders the original maintenance amount unreasonable and

unfair. Beck, 566 N.W.2d at 726.

       The modification statute also provides for (1) a presumption of a substantial

change in circumstances and (2) a rebuttable presumption of unreasonableness and

unfairness of an existing “support order” if “the gross income of an obligor or obligee has

decreased by at least 20 percent through no fault or choice of the party.” Minn. Stat.

§ 518A.39, subd. 2(b)(5) (2014); see Minn. Stat. § 518A.26, subd. 21 (a)(3) (2014)

(defining “support order” to include an order awarding spousal maintenance). Appellant

argues that because her unemployment resulted in a total loss of income, she was entitled

to a rebuttable presumption of unreasonableness and unfairness. Appellant contends that

the district court did not honor this presumption because paragraph 45 of its findings

reads: “[Appellant] failed, however, to demonstrate that the aforementioned changes

render the original [d]ecree unreasonable and unfair.” Appellant argues this paragraph

indicates that the district court improperly believed that the burden was on appellant to




                                             8
show the decree was unreasonable and unfair when section 518A.39, subdivision 2(b)(5),

entitles her to a rebuttable presumption on that exact issue.

       We reject appellant’s argument for three reasons. First, despite having previously

moved the district court for – among other things – amended findings of fact, the first

time appellant makes her argument that paragraph 45 shows that the district court failed

to accord her the statutory presumption of unreasonableness and unfairness is in her brief

to this court. On this record, we conclude that the argument is not properly before this

court. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that, generally,

appellate courts address only those questions previously presented to and considered by

the district court).

       Second, because paragraph 45 states that appellant failed “to demonstrate that the

aforementioned changes render the original [d]ecree unreasonable and unfair[,]”

(emphasis added) (i.e., because the language of paragraph 45 addresses whether appellate

showed unreasonableness and unfairness rather than whether appellant was entitled to a

presumption of unreasonableness and unfairness), a fair reading of paragraph 45 suggests

that it does not address whether appellant is entitled to the statutory presumption but

whether appellant actually shows unreasonableness and unfairness. And any ambiguity

on the point indicates that appellant did not carry her burden of affirmatively showing

error by the district court: “[O]n appeal error is never presumed. It must be made to

appear affirmatively before there can be reversal . . . [and] the burden of showing error

rests upon the one who relies upon it.” Waters v. Fiebelkorn, 216 Minn. 489, 495, 13

N.W.2d 461, 464-65 (1944); see Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d 542, 546


                                              9
(1949) (quoting Waters in a family law appeal); Luthen v. Luthen, 596 N.W.2d 278, 283

(Minn. App. 1999) (applying Loth in a family law appeal).

       Third, even if we review appellant’s argument as presented and assume that the

district court committed an error, a remand would still be unnecessary because appellant

failed to show prejudice resulting from the assumed error. See Midway Ctr. Assocs. v.

Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (stating that to prevail

on appeal, an appellant must show both error and prejudice resulting from the error). The

district court’s order makes clear that a presumption of unreasonableness and unfairness

would be rebutted by appellant’s failure to make reasonable efforts to rehabilitate, as

previously discussed. In short, even if it is assumed both that the question is properly

before this court and that the district court erred in not granting appellant a rebuttable

presumption, doing so would not change the result. See Minn. R. Civ. P. 61 (requiring

harmless error is to be ignored); Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985)

(declining to remand for additional findings because it was clear the district court would

arrive at the same decision). Therefore, appellant was not prejudiced, and a remand is not

warranted.

       Affirmed.




                                              10
