                         This opinion will be unpublished and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
                                    A14-1937

                                  In re the Marriage of:

                            Mary Patricia Myhre, petitioner,
                                     Respondent,

                                           vs.

                                Steven Kenneth Myhre,
                                      Appellant.

                                  Filed July 13, 2015
                                       Affirmed
                                   Schellhas, Judge

                             Dakota County District Court
                             File No. 19AV-FA-11-2029

Merlyn L. Meinerts, Meinerts Law Office, P.A., Burnsville, Minnesota (for respondent)

John T. Burns, Jr., Burns Law Office, Burnsville, Minnesota (for appellant)

      Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and

Hooten, Judge.

                        UNPUBLISHED OPINION

SCHELLHAS, Judge

      Appellant challenges the district court’s amended marriage-dissolution judgment.

We affirm.
                                          FACTS

       Appellant Steven Myhre (husband) and respondent Mary Myhre (wife) married in

February 1998. Wife petitioned for marriage dissolution in June 2011. The district court

entered a partial judgment and decree in February 2012, and based on the parties’

stipulation, granted the parties joint legal and joint physical custody of their children and

reserved various financial issues for trial. Before trial, the parties stipulated that, for

purposes of spousal maintenance and child support, husband’s gross annual income was

$150,000 and wife’s potential gross annual income was $50,000; and, for purposes of

property division, husband would be awarded his telecommunications business and wife

would be awarded her real-estate business. Following a three-day trial, the court

implicitly rejected the parties’ stipulation regarding wife’s potential gross annual income

of $50,000; awarded wife $2,760 in permanent monthly spousal maintenance, $915 in

monthly child support, and $6,000 in need-based attorney fees; found the value of

husband’s telecommunications business to be $295,000 and the value of wife’s real-estate

business to be $0; and ordered entry of judgment accordingly.

       Husband appealed, “arguing that the district court (1) abused its discretion by

rejecting the parties’ stipulation as to [wife]’s income in awarding spousal maintenance,

(2) erred in calculating child support, (3) erred in valuing [hi]s business, and (4) abused

its discretion by awarding [wife] need-based attorney fees.” Myhre v. Myhre, No. A12-

2276, 2013 WL 5976065, at *1 (Minn. App. Nov. 12, 2013). We affirmed the court’s

valuation of husband’s telecommunications business but reversed and remanded on all

remaining issues, reasoning that the court rejected the parties’ stipulation as to wife’s


                                             2
potential income without giving the parties notice and an opportunity to litigate the issue

and without making sufficient findings regarding wife’s income. Id. at *1–5.

       On remand, the district court notified the parties of its rejection of their income

stipulations, admitted evidence regarding both parties’ incomes from before and after the

dissolution trial, and entered an amended judgment and decree, finding that wife’s

average annual income for 2010 through 2013 was $22,369.06 and that husband’s

average annual income for 2008 through 2012 was $272,115.20. The court awarded wife

$3,460 in permanent monthly spousal maintenance, $1,848 in monthly child support, and

$6,000 in need-based attorney fees; ordered husband to acquire life insurance to secure

his payment of spousal maintenance and child support; and denied husband’s subsequent

motion for amended findings.

       This appeal follows.

                                     DECISION

Scope of remand

       Husband argues that the district court impermissibly expanded the scope of the

remand by allowing evidence of both parties’ incomes from after the original trial. “It is

the duty of the trial court on remand to execute the mandate of th[e appellate] court

strictly according to its terms.” Halverson v. Vill. of Deerwood, 322 N.W.2d 761, 766

(Minn. 1982). “The trial court has no power to alter, amend, or modify [the] mandate” of

the appellate court. Id. But “[the supreme court] ha[s] held that district courts are given

broad discretion to determine how to proceed on remand, as they may act in any way not

inconsistent with the remand instructions provided.” Janssen v. Best & Flanagan, LLP,


                                            3
704 N.W.2d 759, 763 (Minn. 2005). “Appellate courts review a district court’s

compliance with remand instructions under the deferential abuse of discretion standard.”

Id.

       In Myhre, we stated: “We reverse the district court’s maintenance award and

remand for proceedings in which the parties must have the opportunity to stipulate to or

litigate the issue of [wife]’s need for maintenance, including her income.” 2013 WL

5976065, at *3. We did not preclude the district court on remand from reopening the

record to consider additional evidence of the parties’ incomes, whether from before or

after the original trial. See id. We therefore conclude that the court did not “act in any

way . . . inconsistent with the remand instructions provided” and did not abuse its

discretion. See Janssen, 704 N.W.2d at 763.

Rejection of the parties’ stipulation regarding husband’s income

       Husband argues that the district court abused its discretion by rejecting the parties’

stipulation regarding his income. “The use of stipulations in divorce proceedings has

been approved by th[e supreme] court.” Shirk v. Shirk, 561 N.W.2d 519, 521 (Minn.

1997). “Stipulations are therefore accorded the sanctity of binding contracts.” Id. But “[a

district court] has a duty to protect the interests of both parties and all the citizens of the

state to ensure that the stipulation is fair and reasonable to all.” Karon v. Karon, 435

N.W.2d 501, 503 (Minn. 1989), superseded in part by statute, Minn. Stat. § 518.552,

subd. 5 (1989). “[I]n deciding whether to approve a stipulation agreed to by married

persons, a district court must exercise its independent judgment to determine whether a

stipulation is, on the facts of the case in question, appropriate.” In re Marriage of Rettke,


                                              4
696 N.W.2d 846, 850−51 (Minn. App. 2005). A district court has authority to refuse to

accept the terms of the stipulation in part or in total. See Karon, 435 N.W.2d at 503

(recognizing district court’s authority to reject parties’ stipulations).

       Approximately two months before the remand hearing, the district court gave

notice to the parties that it was rejecting their income stipulations. At the remand hearing,

the court explained its reasoning as follows:

                     [The stipulation as to husband’s income is] not fair and
              equitable and I am not satisfied that full disclosure had been
              made. I think I said at some point at one of the innumerable
              hearings that it was puzzling and somewhat suspicious that
              [husband] could make so much money for so many years and
              basically . . . have very little to show for it.

                       So, no, I’m not satisfied that full disclosure has been
              made and I don’t think the stipulation is fair and equitable.
              [Husband] make[s] twice as much money as . . . stipulated
              . . ., and [wife] has never made $50,000 a year.

       Indeed, husband’s income tax documents show that his average annual W-2 and

Schedule E income for 2008 through 2012 exceeded $272,000, substantially more than

the stipulated amount of $150,000. On this record, we conclude that the district court did

not abuse its discretion by rejecting the parties’ stipulation regarding husband’s income.

To have accepted the stipulation would have impacted unfairly and unreasonably the

awards of spousal maintenance and child support to wife.

Calculation of husband’s income

       “A district court’s determination of income for maintenance purposes is a finding

of fact and is not set aside unless clearly erroneous.” Peterka v. Peterka, 675 N.W.2d

353, 357 (Minn. App. 2004). “Findings of fact are clearly erroneous when they are


                                                5
manifestly contrary to the weight of the evidence or not reasonably supported by the

evidence as a whole.” Kampf v. Kampf, 732 N.W.2d 630, 633 (Minn. App. 2007)

(quotation omitted), review denied (Minn. Aug. 21, 2007).

      Husband argues that the district court erred by considering any of his income

above $150,000, for purposes of setting spousal maintenance, because the appraisal of his

telecommunications business was based on the assumption that any income above

$150,000 would be retained by or reinvested back into the business. Husband argues that

to consider his income above $150,000 constitutes “double counting.” We disagree. The

appraiser normalized husband’s salary, using a market salary, to determine the

telecommunications business’s historic profits. The appraisal contains no suggestion that

the telecommunications business’s profits must be retained by the business or reinvested

by husband. In fact, the appraisal explicitly recognizes that “[d]uring the period in

review, the Company distributed 97.4% of its net income.”

      Regardless, husband has failed to show error. The sole legal authority cited by

husband in support of his argument is O’Brien v. O’Brien, a case in which the wife

argued that the district court erred by excluding from its calculation of the husband’s

income rental payments from a property awarded to the husband. 343 N.W.2d 850, 851–

52 (Minn. 1984). Relying on a 1982 statutory definition of income and noting the district

court’s wide discretion to determine spousal maintenance, the supreme court concluded

that the rental payments were properly excluded from the husband’s income because the

valuation of the property already reflected “a capitalization of the income stream which

the property produces.” Id. at 852. After the supreme court decided O’Brien, the


                                           6
legislature repealed the statute upon which the court had relied, section 518.54,

subdivision 6. See 2006 Minn. Laws ch. 280, § 47, at 1145. The relevant portion of

O’Brien, as relied on by husband, is therefore no longer operative.

       Without legal support for his argument or some alternate theory, husband has

failed to meet his burden of affirmatively showing that the district court erred in its

finding of his income. See Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356,

237 N.W.2d 76, 78 (1975) (“It is well to bear in mind that on appeal error is never

presumed. It must be made to appear affirmatively before there can be reversal.”

(quotation omitted)); Horodenski v. Lyndale Green Townhome Ass’n, Inc., 804 N.W.2d

366, 372 (Minn. App. 2011) (“[E]rror is not presumed on appeal, and the burden of

showing error rests on the party asserting it.”); Palladium Holdings, LLC v. Zuni Mortg.

Loan Trust 2006-OA1, 775 N.W.2d 168, 178 (Minn. App. 2009) (“An appealing party

bears the burden of demonstrating both error and prejudice.”), review denied (Minn.

Jan. 27, 2010). We are not persuaded that the court abused its discretion by finding that

husband’s income exceeded $150,000.

Wife’s need for maintenance

       Husband argues that the district court abused its discretion in determining wife’s

need for maintenance. Appellate courts review a district court’s maintenance award under

an abuse-of-discretion standard. Lee v. Lee, 775 N.W.2d 631, 637 (Minn. 2009). “There

must be a clearly erroneous conclusion that is against logic and the facts on record before

[an appellate] court will find that the [district] court abused its discretion.” Rutten v.

Rutten, 347 N.W.2d 47, 50 (Minn. 1984).


                                            7
       A district court may grant spousal maintenance to either spouse if the court finds

that the spouse seeking maintenance either

                     (a) lacks sufficient property, including marital property
              apportioned to the spouse, to provide for reasonable needs of
              the spouse considering the standard of living established
              during the marriage, especially, but not limited to, a period of
              training or education, or
                     (b) is unable to provide adequate self-support, after
              considering the standard of living established during the
              marriage and all relevant circumstances, through appropriate
              employment, or is the custodian of a child whose condition or
              circumstances make it appropriate that the custodian not be
              required to seek employment outside the home.

Minn. Stat. § 518.552, subd. 1 (2014). “The [maintenance] statute lists eight non-

exclusive factors for courts to consider when crafting maintenance orders . . . .” Lee, 775

N.W.2d at 636; see Minn. Stat. § 518.552, subd. 2 (2014).

       The district court averaged wife’s earnings for 2010 through 2013, arriving at a

monthly average of $1,864. Husband does not challenge the court’s finding as to wife’s

average monthly earnings but argues, without citation to legal authority, that the district

court erred by not finding wife’s “earning capacity.” Husband’s argument lacks merit.

       In Passolt v. Passolt, we stated that, when addressing the amount and duration of a

maintenance award, “the district court is to consider factors that include the time

necessary for the recipient to acquire sufficient education or training to enable him or her

to find appropriate employment, and the recipient’s probability of completing education

or training and becoming fully or partially self-supporting.” 804 N.W.2d 18, 22 (Minn.

App. 2011) (quotations omitted), review denied (Minn. Nov. 15, 2011). Here, the district

court found that wife stated that “she does not need additional education or training to


                                             8
pursue her career” but “simply needs time to develop a book of clients and contacts.” The

court noted that wife had associated with a successful real estate agent who was

providing her with clients and that wife expected her earnings to increase over time. The

court also found that wife was already partially self-supporting but could not meet her

reasonable monthly budget. We conclude that the court’s findings adequately address the

factors identified in Passolt.

       Husband also argues that the district court ignored wife’s income-producing

property, specifically, a purported monthly return of $2,000 to $3,000 on wife’s

premarital investment account and her property equalizer funds. But husband has not

pointed to any evidence of this return, and wife’s tax documents show that she is earning

an average of less than $200 a month in dividends. While the court was required to

consider wife’s financial resources, see Minn. Stat. § 518.552, subd. 2(a), a failure to

consider every such resource does not necessarily establish an abuse of discretion. In

Fink v. Fink, in which the district court failed to consider roughly $310 of monthly

income generated from income-producing assets, we stated that “[district] courts are

authorized to look beyond the bare needs of the spouse seeking maintenance.” 366

N.W.2d 340, 342 (Minn. App. 1985). And we affirmed the district court’s maintenance

award. Id. Here, even in light of the less-than-$200 of average monthly income generated

by wife’s assets, we also must take into account the court’s express consideration of other

factors in determining the maintenance award.

       In evaluating the factors for determining maintenance, the district court found that

the parties had spent at least $200,000 per year to maintain their standard of living and


                                            9
that wife’s monthly budget of $6,770 reflected a significant decrease from the standard of

living she enjoyed during the marriage, noting that wife had incurred credit-card debt and

had depleted the principal balance of a nonmarital asset to pay her expenses and attorney

fees. The marital standard of living is one factor in determining maintenance. Minn. Stat.

§ 518.552, subd. 2(c).

      Husband argues that the district court made no findings about wife’s reasonable

expenses. Although the court used the term “monthly budget” instead of “reasonable

monthly expenses.” We reject husband’s argument that the court failed to make findings

about wife’s reasonable monthly expenses.

      Husband also argues that the district court erred by using a monthly income of

$1,462 to determine whether wife could meet her monthly needs. We decline to address

husband’s argument because he failed to include citation to the record and we do not find

evidence in the record to support his argument. See EOP-Nicollet Mall, L.L.C. v. Cnty. of

Hennepin, 723 N.W.2d 270, 279 n.12 (Minn. 2006) (treating argument as not properly

before court to extent that party “did not provide record citation”). We conclude that the

court did not abuse its discretion by awarding wife $3,460 per month in spousal

maintenance.

Award of permanent maintenance to wife

      Husband argues that the district court abused its discretion in determining the

duration of maintenance to award wife. “[A] district court must order permanent

maintenance if the court is uncertain that the spouse seeking maintenance can ever

become self-supporting.” Maiers v. Maiers, 775 N.W.2d 666, 668 (Minn. App. 2009)


                                            10
(quotation omitted); see Minn. Stat. § 518.552, subd. 3 (2014) (“Where there is some

uncertainty as to the necessity of a permanent award, the court shall order a permanent

award . . . .”).

        In this case, as part of its consideration of the statutory factors for calculating the

amount and duration of spousal maintenance, the district court highlighted the high

standard of living enjoyed by the parties during the marriage, wife’s lack of a college

degree, the many years she had been out of the workforce, the fact that she is starting a

new career, her low annual income, and her age. The court explicitly stated that

“[c]onsidering the standard of living enjoyed during the marriage, it is not likely [wife]

will achieve comparable self-sufficiency.”

        Husband cites Aaker v. Aaker, 447 N.W.2d 607 (Minn. App. 1989), review denied

(Minn. Jan. 12, 1990), and Hall v. Hall, 417 N.W.2d 300 (Minn. App. 1988), in support

of his argument that this case is not appropriate for permanent spousal maintenance. But

in each of the cited cases, the spousal-maintenance obligee was age 39. See Aaker, 447

N.W.2d at 611; Hall, 417 N.W.2d at 303. In this case, wife was age 47 at the time of the

dissolution. In Aaker, the obligee had a college degree, 447 N.W.2d at 611, unlike wife in

this case. Given the district court’s consideration of the statutory factors and the statutory

preference for awarding permanent maintenance in the event of uncertainty, we conclude

that the court did not abuse its discretion by awarding permanent monthly spousal

maintenance to wife.




                                              11
Calculation of child support

       Citing Minn. Stat. § 518A.34(b)(1), husband challenges the district court’s

calculation of child support. “It is well settled in cases involving the dissolution of

marriages that the trial court is accorded broad discretion with respect to . . . provision for

the . . . support of the children of the parties.” Rutten, 347 N.W.2d at 50. Husband relies

on his previous arguments challenging the court’s findings regarding the parties’

incomes. But as previously explained, husband has failed to show error with respect to

these findings. We therefore conclude that the court did not abuse its discretion in its

calculation of child support.

Need-based attorney fees

       Husband argues that the district court abused its discretion by awarding wife

$6,000 in need-based attorney fees.

                     [T]he [district] court shall award attorney fees, costs,
              and disbursements in an amount necessary to enable a party
              to carry on or contest the proceeding, provided it finds:

                     (1) that the fees are necessary for the good faith
              assertion of the party’s rights in the proceeding and will not
              contribute unnecessarily to the length and expense of the
              proceeding;
                     (2) that the party from whom fees, costs, and
              disbursements are sought has the means to pay them; and
                     (3) that the party to whom fees, costs, and
              disbursements are awarded does not have the means to pay
              them.

Minn. Stat. § 518.14, subd. 1 (2014). The supreme court has stated that “an award of

attorney fees is committed to the discretion of the district court . . . .” Lee, 775 N.W.2d at




                                              12
643. The supreme court also has stated that appellate courts review an award of attorney

fees for an abuse of discretion. Gully v. Gully, 599 N.W.2d 814, 825 (Minn. 1999).

          Husband argues that the district court failed to make findings that “an award of

fees was necessary for a good-faith assertion of [wife]’s rights” and that “[wife] lacks the

means to pay her own attorney fees.” But a district court does not abuse its discretion by

failing to make separate findings on each of the statutory elements under section 518.14.

See id. at 825–26 (rejecting husband’s argument that district court abused its discretion

by awarding attorney fees to wife, despite acknowledging that court made no separate

finding of husband’s ability to pay attorney fees, where language used by court

reasonably implied that court believed husband had ability to pay wife’s attorney fees and

court was familiar with history of case and had access to parties’ financial records); see

also Geske v. Marcolina, 624 N.W.2d 813, 817 (Minn. App. 2001) (“[A] lack of specific

findings on the statutory factors for a need-based fee award . . . is not fatal to an award

. . . .”).

          In this case, the district court expressly found that wife’s attorney fees were

incurred in the good faith assertion of her rights in the proceeding. The court considered

the approximately $80,000 wife had incurred in attorney fees, as well as the substantial

difference in the parties’ incomes, and noted that wife had paid a large portion of her

attorney fees using nonmarital funds. See Beck v. Kaplan, 566 N.W.2d 723, 727 (Minn.

1997) (affirming fee award where party requesting attorney fees could satisfy fee

obligation only by depleting retirement assets and where parties had “disparate financial

circumstances”). The court also expressly stated that wife’s monthly budget for the


                                             13
children and herself, from which child support and spousal maintenance were calculated,

did not include her monthly payments toward attorney fees. We conclude that the

amended judgment reflects the court’s adequate consideration of the statutory criteria for

need-based attorney fees and that the court did not abuse its discretion by awarding need-

based attorney fees to wife. See Geske, 624 N.W.2d at 817 (stating that findings on need-

based fees are sufficient if they demonstrate district court’s consideration of relevant

factors).

Life insurance as security

         Husband argues that the district court abused its discretion by ordering him to

acquire life insurance as security for spousal maintenance and child support without

making findings regarding his insurability and the cost of obtaining insurance. Wife

argues that husband waived this argument by failing to raise it in his first appeal to this

court.

         In Peterson v. BASF Corp., the supreme court addressed the propriety “of

reviewing an issue that could have been raised in a prior appeal, but was not.” 675

N.W.2d 57, 66 (Minn. 2004), vacated on other grounds, BASF Corp. v. Peterson, 544

U.S. 1012, 125 S. Ct. 1968 (2005). In that case, the court noted that the issue raised in a

subsequent petition for review was a legal one and that the relevant law and facts had not

significantly changed since the prior petition for review. See id. at 67–68. The court

concluded that “consideration of [the petitioner]’s [newly raised] arguments . . . would

undermine principles of fairness and judicial economy.” Id. at 68; cf. Loo v. Loo, 520

N.W.2d 740, 743–44 & n.2 (Minn. 1994) (reasoning that “[a]lthough none of the


                                            14
principles or doctrines requiring that judicial decisions have preclusive effect apply . . . ,

the underlying principle that an adjudication on the merits of an issue is conclusive, and

should not be relitigated, clearly applie[d]”); Pedro v. Pedro, 489 N.W.2d 798, 803

(Minn. App. 1992) (determining that appellants could not raise issue of personal liability

in second appeal when parties did not raise issue in first appeal), review denied (Minn.

Oct. 20, 1992).

       Here, in the original judgment, the district court ordered husband to obtain life

insurance. By the time of husband’s first appeal, the sole authority for his insurance

argument, Lee, had been decided. Neither the record nor this court’s opinion in the first

appeal suggests that husband challenged the life-insurance order in his first appeal. See

Myhre, 2013 WL 5976065, at *1–5. Following remand, the amended judgment contains

an identical order regarding life insurance, and husband makes no argument that the

relevant facts have changed, significantly or otherwise, since his first appeal to this court.

As in Peterson, to address husband’s argument in this appeal would undermine principles

of fairness and judicial economy. We therefore decline to address husband’s life-

insurance argument.

       Affirmed.




                                             15
