                        This opinion will be unpublished and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
                                   A15-1596

                               In re the Marriage of:
                             Roger Alan Roy, petitioner,
                                    Respondent,

                                         vs.

                                Bonnie LaMay Roy,
                                    Appellant.

                                Filed August 8, 2016
                                      Affirmed
                                Smith, John, Judge *

                             Carver County District Court
                               File No. 10-FA-08-511


Denis E. Grande, DeWitt Mackall Crounse & Moore S.C., Minneapolis, Minnesota (for
respondent)

Bonnie L. Roy, Waconia, Minnesota (pro se appellant)


      Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and Smith,

John, Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

SMITH, JOHN, Judge

       We affirm the district court’s order denying appellant’s motion to increase her

spousal maintenance award. The district court did not abuse its discretion by concluding

that appellant failed to establish a substantial change of circumstances warranting an

increase in maintenance.

                                           FACTS

       The district court dissolved the 15-year marriage of appellant Bonnie LaMay Roy

and respondent Roger Alan Roy by judgment in 2009. Roger is self-employed as the sole

proprietor of Roy Custom Homes, LLC and was then working only as a subcontractor to

another company. Bonnie, who has a past history of employment as a beautician, is not

employed. She has a disability following breast cancer, with medical conditions of chronic

fibrosis, abdominal wall pain, and a restricted range of motion.

       In the judgment, the district court found that Roger had a $42,567 yearly gross

income, that neither party was able to meet monthly expenses, and that Bonnie was unable

to provide adequate self-support without some maintenance from Roger and some

appropriate employment for herself.       The district court therefore ordered permanent

spousal maintenance of $650 per month. The district court found, however, that, despite

her disability, Bonnie had the ability to work part time, earning at least $500 per month,

and that after attending a pain clinic, she could work “close to full time.” The district court

therefore found that she “must take some steps herself to provide for her own support,”




                                              2
including finding some employment within the range of her capabilities or attempting to

obtain Social Security disability.

       In December 2012, the district court denied Bonnie’s motion to increase

maintenance, finding that she had established a need for increased maintenance, but that

Roger had no ability to pay additional maintenance. Bonnie, acting pro se, renewed her

motion in June 2015. After a hearing, the district court denied the motion. The district

court found that Bonnie’s only monthly income was maintenance of $710, with reasonable

monthly expenses of $1,970. The district court found that Roger’s average adjusted gross

monthly income over the last five years was $4,680; that he had recently had knee

replacement surgery, and it was unclear to what extent he would be able to resume his

carpentry work; and that he had reasonable monthly expenses of $5,772, an increase since

the judgment because he had borrowed against a home equity line of credit to fund

expenses, including his maintenance obligation. The district court found that Roger had a

shortfall of approximately $1,092 per month, Bonnie had a shortfall of approximately

$1,260 per month, and “the parties continue to be relatively equally burdened by their

negative cash flows.” The district court therefore concluded that Bonnie had failed to

establish a substantial change in circumstances to justify a change in maintenance under

Minn. Stat. § 518A.39, subd. 2 (Supp. 2015).

                                     DECISION

       This court reviews the district court’s decision on spousal-maintenance

modification for an abuse of discretion. Hecker v. Hecker, 568 N.W.2d 705, 709-10 (Minn.

1997). The district court abuses its discretion if it makes findings unsupported by the


                                           3
evidence or errs in applying the law. Dobrin v. Dobrin, 569 N.W.2d 199, 202 & n.3 (Minn.

1997). A reviewing court will uphold a district court’s findings of fact 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 and firm conviction

that a mistake has been made.” Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn.

2008) (quotation omitted).

       At the outset, we note that in this appeal, Bonnie also challenges portions of the

2009 judgment and the 2012 order denying her previous motion to increase maintenance.

But the times for appeal of the judgment and the earlier order have expired. See Minn.

Stat. § 518.145, subd. 1 (2014) (stating that a marriage dissolution is final when judgment

is entered); see also Minn. R. Civ. App. P. 104.01, subds. 1, 2 (specifying 60-day appeal

period from judgments and appealable orders). Therefore, those matters are not properly

before this court, and we will rule only on issues relating to the order currently on appeal.

       Before the district court may modify a spousal-maintenance award, the moving

party must provide clear proof that, since the spousal-maintenance obligation was

established or last modified, a substantial change of circumstances has occurred that

renders the award unreasonable and unfair. Minn. Stat. § 518A.39, subd. 2; Beck v. Kaplan,

566 N.W.2d 723, 726 (Minn. 1997). Factors supporting maintenance modification include

“substantially increased or decreased gross income of an obligor or obligee” and

“substantially increased or decreased need of an obligor or obligee.”            Minn. Stat.

§ 518A.39, subd. 2.




                                              4
       Bonnie maintains that the district court ignored evidence of her continuing medical

condition and her increased financial need. She points out that although she has medically

qualified for Social Security disability benefits, she does not meet other requirements for

that program.    But the district court noted its earlier finding that she should be able to

obtain some form of employment despite her disability, and it further found that she had

not yet secured employment outside the home. This finding is not clearly erroneous. And

although Bonnie has submitted evidence of increased financial hardship, that factor is only

one of several to be considered in addressing whether to increase a maintenance award.

See id. (stating factors to be examined in considering maintenance modification).

       Bonnie argues that her children, although over 18, have lived with her while

attending college, and that she is no longer receiving child support. But expenses for

emancipated children are not properly considered to be expenses of a maintenance

recipient.   Musielewicz v. Musielewicz, 400 N.W.2d 100, 103 (Minn. App. 1987), review

denied (Minn. Mar. 25, 1987).      And termination of child support does not constitute a

substantial change of circumstances justifying a maintenance increase because a party’s

gross income does not include child-support payments received by a party. Minn. Stat.

§ 518A.29(e) (2014); see Lee v. Lee, 775 N.W.2d 631, 635 n.5 (Minn. 2009) (holding that

the provisions of section 518A.29 defining gross income apply to spousal maintenance).

       Bonnie maintains that the district court improperly refused to consider her additional

documentation of financial hardship and disability, which she attempted to submit at the

district-court hearing but were rejected as untimely. See Minn. R. Gen. Pract. 303(a)(1)

(providing that “[n]o motion shall be heard unless the moving party” serves and files


                                             5
“[r]elevant signed, sworn and notarized affidavits and exhibits” “at least 14 days prior to

the hearing”). She alleges that the district court was biased against her because Roger

submitted documents a short time before the hearing. But Roger’s documents were timely

submitted five days before the hearing because they were responding to Bonnie’s motion.

See Minn. R. Gen. Pract. 303(a)(3) (stating that responsive documents must be served five

days before the hearing). Any failure to admit additional documentation into evidence did

not prejudice Bonnie because the district court allowed her to fully explain her allegations

of changed circumstances at the hearing. See Loth v. Loth, 227 Minn. 387, 392, 35 N.W.2d

542, 546 (1949) (stating that “error without prejudice is not ground for reversal”).

       Bonnie challenges the district court’s findings with respect to Roger’s income and

debt. She argues that Roger’s federal tax returns submitted to the district court did not

accurately represent his gross income because he claimed excess tax deductions, artificially

reducing his income for maintenance purposes. We apply a clear-error standard of review

to the district court’s findings of a party’s income. Ludwigson v. Ludwigson, 642 N.W.2d

441, 446 (Minn. App. 2002).

       “[I]ncome from self-employment or operation of a business” for maintenance and

support purposes is defined as “gross receipts minus costs of goods sold minus ordinary

and necessary expenses required for self-employment or business operation.” Minn. Stat.

§ 518A.30 (2014).    The district court examined Roger’s federal tax returns from 2010-

2014, including the Schedule-C portion of the returns, which contains the information

required for determining income from self-employment. The district court then averaged

five years of Roger’s adjusted gross income from the returns and found his gross yearly


                                             6
income to be $56,161. Calculating average income over a time period may be appropriate

when the nature of employment causes income to fluctuate. Veit v. Veit, 413 N.W.2d 601,

606 (Minn. App. 1987). The district court did not err in its application of Minn. Stat.

§ 518A.30 to determine Roger’s income from self-employment.

       Bonnie argues that it was improper for Roger to deduct attorney fees as a business

expense because they were not ordinary and necessary expenses. Although Roger’s tax

returns show that he did deduct attorney fees as a business expense in 2010, he did not do

so from 2011-2014.       Here, Bonnie has failed to show that, even if the district court

improperly allowed a 2010 deduction for attorney fees, its determination of Roger’s

average income over a five-year period was clearly erroneous.               See Vangsness v.

Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000) (stating that a party challenging a

district court’s factual finding on appeal has the burden to show that the finding is clearly

erroneous).

       Bonnie maintains that the record contains no documentation of Roger’s business

and personal debt or the sale of a mini-storage business, which had previously produced

income to him. Although the record does not contain the Schedule A portions of Roger’s

tax returns, the district court’s attribution of debt to him is consistent with its finding that

he had increased mortgage debt due to borrowing against a home equity line of credit to

fund increased expenses, including his maintenance obligation.            Further, we cannot

conclude that the district court abused its broad discretion by failing to require additional

evidence of Roger’s debt and proof of a business sale. See Kroning v. State Farm Auto.




                                               7
Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997) (stating that the district court has “broad

discretion” over evidentiary matters) (quotation omitted)).

       Bonnie appears to argue that the district court was biased because it did not

sufficiently consider the evidence that she submitted and instead credited Roger’s evidence

on his income and expenses. But the district court implicitly found Roger’s income and

expenses to be credible, and we defer to the district court’s credibility determinations.

Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988). An unfavorable ruling by itself

does not support a claim of judicial bias. Olson v. Olson, 392 N.W.2d 338, 341 (Minn.

App. 1986).

       Bonnie finally appears to challenge the district court’s determination that both

parties share the burden of their inability to meet current expenses. But under current law,

“a spousal support award is based on the notion that the marital relationship involves an

economic partnership in which the spouses equally share the burdens and responsibilities

of both marriage and dissolution.” Erlandson v. Erlandson, 318 N.W.2d 36, 39 (Minn.

1982). On this record, the district court did not abuse its discretion by concluding that

Bonnie failed to show a substantial change in circumstances and by denying the motion to

modify maintenance.

       Affirmed.




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