                       This opinion will be unpublished and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
                               A14-0989, A14-1280

                            Colleen M. Doyle, petitioner,
                                     Appellant,

                                         vs.

                                  Keith R. Klein,
                                   Respondent.

                               Filed May 26, 2015
                 Affirmed in part, reversed in part, and remanded
                                   Smith, Judge

                         Washington County District Court
                            File No. 82-F5-06-007572

Alan C. Eidsness, Melissa J. Nilsson, Henson & Efron, P.A., Minneapolis, Minnesota
(for appellant)

Kathleen M. Newman, Joshua M. Benson, Kathleen M. Newman + Associates, P.A.,
Minneapolis, Minnesota (for respondent)

      Considered and decided by Smith, Presiding Judge; Chutich, Judge; and Minge,

Judge.*




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                        UNPUBLISHED OPINION

SMITH, Judge

       We affirm the district court’s denial of appellant’s motion to adjust her spousal-

maintenance award because the district court did not abuse its discretion by declining to

consider tax consequences of the award. We also affirm the district court’s denial of

respondent’s motion for amended findings regarding appellant’s monthly expenses and

expected future salary increases because of respondent’s failure to timely appeal the

district court’s factual findings regarding appellant’s monthly expenses and because its

findings regarding future salary increases are not clearly erroneous.        We reverse,

however, the district court’s denial of appellant’s motion to implement a cost-of-living

adjustment, and we remand solely for the district court to implement such an adjustment.

                                         FACTS

       The district court dissolved appellant Colleen Doyle’s and respondent Keith

Klein’s 19-year marriage in 2008. Its judgment and decree has been the subject of

lengthy litigation spanning almost seven years. The present matter is the consolidated

third and fourth appeals after two prior remands from this court.

       Doyle and Klein had two teenaged children at the time of the dissolution, the

youngest of which emancipated in 2012. During the marriage, Doyle maintained a

license to practice law, but worked only intermittently outside the home. She also

experienced significant health issues. Notwithstanding her health issues, the dissolution

court found that Doyle was “physically and mentally capable of being employed at a

minimum in a flexible part-time capacity” as an attorney.           It found that Doyle’s


                                             2
reasonable monthly budget was $10,223. Based on its determination that Doyle could

become self-sufficient after five years, it ordered Klein to pay temporary spousal

maintenance until May 2013.

       After Doyle appealed, we remanded for the district court to make more detailed

findings regarding Doyle’s expected future income. Doyle v. Klein, No. A09-200, 2010

WL 771628, at *2 (Minn. App. Mar. 9, 2010) (Doyle I). Although we stated that “the

district court’s findings regarding [Doyle’s] expenses are sufficient,” we also observed

that that the district court had “never specifically indicated what portion of [the] total

amount [of Doyle’s expenses] was for [her] personal monthly expenses” versus expenses

for the children, but, “by subtracting from the total the $2,208 the [district] court awarded

her in monthly child support,” we opined that “it is clear that the [district] court

essentially found appellant’s [post-emancipation] reasonable monthly expenses to be

$8,015.” Id.

       On remand, Klein argued that the court of appeals had misinterpreted the district

court’s factual findings, and he urged the district court to clarify that it did not intend to

find that Doyle’s reasonable monthly expenses exceeded her own proposed amount. But

the district court adopted the court of appeals calculations, stating that “[t]he Court of

Appeals held the findings related to said expenses are sufficient.” Klein did not move the

district court for amended findings on this point.

       Based on its assessment of Doyle’s earning potential and the limitations imposed

by her childcare responsibilities, the district court found that “she [would] experience a

shortfall of $5,418” per month until February 2011, $4,169 per month by May 2011,


                                              3
$2,689 per month by May 2012, and $1,520 per month by June 2013. It ordered Klein to

pay Doyle $7,225 per month in spousal maintenance for the period of August 10, 2007

through January 31, 2011, $5,560 per month for the period of February 1, 2011 through

April 30, 2012, and $3,586 per month for the period of May 1, 2012 through May 31,

2013, after which spousal maintenance payments would cease.              It noted that these

payments, when combined with Doyle’s expected income, would exceed her reasonable

monthly expenses, but it explained that this was necessary to account for the tax impact

of Doyle’s receipt of spousal maintenance.

       Doyle appealed again, challenging the district court’s finding that she would

become capable of full-time employment and that the district court’s estimates of the tax

impacts of her receipt of spousal maintenance were insufficiently detailed and not

supported by the record. Doyle v. Klein, No. A12-0751, 2013 WL 2922755, at *1, 9-11

(Minn. App. June 17, 2013) (Doyle II). Klein did not file a notice of related appeal, nor

did he challenge the district court’s adoption of the $8,015 figure in his responsive brief.

       This court reversed in part and remanded, critiquing the district court’s reliance on

unfounded and unrealistic expectations of salary increases for entry-level attorneys, and

directing the district court to reconsider Doyle’s expected income increases and to more

clearly spell out the basis for its tax-burden calculations. Id. at *9-11. Specifically, this

court noted that the evidence presented to the district court did not support its calculations

of yearly salary increases based on experience, especially given evidence in the record

indicating that attorney salaries in the Twin Cities “only increased 2%” each year

between 2006 and 2010. Id. at *8-9. When describing the Doyle I decision, we stated


                                              4
that “[w]e affirmed the district court’s finding regarding [Doyle’s] monthly expenses,

which were $10,233 for [Doyle] and the children, and $8,015 for [Doyle] after the

children emancipated.” Id. at *2.

          On remand from Doyle II, the district court denied Klein’s motion to “adjust or

reconsider” Doyle’s reasonable monthly expenses, citing this court’s “affirmation” of its

finding. It found “a 25% tax burden for [Doyle] to be appropriate.” Citing “the Court of

Appeals’ rejection of Ms. Lowe’s calculations and the only other evidence in the record,”

it decided “to use a 2% annual salary increase to determine [Doyle’s] annual salary.” It

awarded Doyle permanent spousal maintenance of $3,771 per month.

          Doyle moved the district court for amended findings, arguing that the district

court’s permanent spousal maintenance award failed to account for the consequences of

the 25% tax burden she incurred as a result of its spousal maintenance award. Klein also

moved the district court for amended findings, arguing that the district court had

misinterpreted this court’s use of the $8,015 figure for Doyle’s reasonable monthly

expenses, and that this figure contradicted the district court’s own factual findings. The

district court denied both motions, stating that the court of appeals had decided both

issues.

          Klein moved the district court to preclude enforcement of the cost-of-living

adjustment provision from the original dissolution decree, arguing that it was not

authorized under Minn. Stat. § 518A.75 (2012) because two years had not elapsed since

the district court’s action on remand after Doyle II. Doyle moved the district court to

enforce the cost-of-living adjustment provision.      The district court granted Klein’s


                                             5
motion, and denied Doyle’s, ruling that its intention when awarding permanent spousal

maintenance after remand from Doyle II had been to “provide a level of maintenance not

subject to yearly cost-of-living adjustments.”

       Doyle appealed both the district court’s denial of her motion for amended findings

and its denial of her motion to implement the cost-of-living adjustment provision. By

order of July 30, 2014, this court consolidated the appeals. Klein filed a timely notice of

related appeal.

                                      DECISION

                                              I.

       Doyle challenges the district court’s denial of her motion to “gross up” her

permanent spousal maintenance award to account for the tax consequences of her receipt

of spousal maintenance. We review a district court’s spousal maintenance award for

abuse of discretion. Dobrin v. Dobrin, 569 N.W.2d 199, 202 (Minn. 2997). It is within a

district court’s discretion to consider tax consequences, but the district court is not

required to do so. See Maurer v. Maurer, 623 N.W.2d 604, 607 (Minn. 2001) (holding

that a “bright-line rule would leave little, if any, room for the exercise of discretion”); cf.

id. at 608 (holding that “it would be inequitable to preclude a [district] court from

considering future tax consequences” (emphasis added)).

       Doyle cites no authority requiring the district court to consider the tax

consequences of a permanent spousal maintenance award. Instead, she argues that the

district court’s practice of considering tax consequences in its other calculations requires

that it continue to do so when awarding permanent spousal maintenance. But Doyle also


                                              6
cites no authority requiring a district court to continue considering tax consequences if it

has considered them in the past.       As such, her argument amounts to an assertion

unsupported by legal authority, and we therefore affirm the district court’s denial of

Doyle’s motion. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518,

519-20, 187 N.W.2d 133, 135 (1971) (“[A]ssignment of error based on mere assertion

and not supported by any argument or authorities in appellant’s brief is waived and will

not be considered on appeal unless prejudicial error is obvious on mere inspection.”).

                                            II.

       Klein challenges the district court’s permanent spousal maintenance award,

arguing that it erroneously used a 2% annual salary increase for Doyle. District courts

have “broad discretion” when determining how to proceed on remand, Janssen v. Best &

Flanagan, LLP, 704 N.W.2d 759, 763 (Minn. 2005), but “[i]t is the duty of the [district]

court on remand to execute the mandate of this court strictly according to its terms,”

Halverson v. Vill. of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982), and “[t]he [district]

court may not vary the mandate . . . or decide issues beyond those remanded,” In re

Estate of Boysen, 351 N.W.2d 398, 400 (Minn. App. 1984).

       On remand after Doyle II, the district court stated that its use of the 2% annual

wage-increase amount was based on the court of appeals’ remand instructions. In Doyle

II, we noted that a witness had testified that Twin Cities attorneys generally were

expected to experience “2% wage inflation increases between 2011 and 2013” as well as

between 2007 and 2010. 2013 WL 2922755, at *8. Although we did not specifically

instruct the district court to use the 2% wage-inflation figure as the sole factor in


                                             7
predicting Doyle’s future income, we held that the district court’s predictions that Doyle

would receive “aggressive” salary increases were unsupported by the record. Id. Based

on this holding, the district court did not abuse its discretion by proceeding on remand

based solely on the 2% annual wage-increase evidence that remained unchallenged in the

record.1

                                             III.

       Klein also challenges the district court’s use of $8,015 as the amount of Doyle’s

post-emancipation reasonable monthly expenses. As a threshold matter, we consider

whether our statements in Doyle I and Doyle II addressing the $8,015 figure should

preclude Klein from raising it here. The law-of-the-case doctrine “applies where an

appellate court has ruled on a legal issue and has remanded the case to the [district] court

for further proceedings.” Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994). “Issues

determined in a first appeal will not be relitigated in the [district] court nor reexamined in

a second appeal.” Mattson v. Underwriters at Lloyds of London, 414 N.W.2d 717, 720

(Minn. 1987). “[T]he underlying principle [is] that an adjudication of the merits of an

issue is conclusive, and should not be relitigated . . . .” Loo, 520 N.W.2d at 744. The

doctrine “is based upon the ground that there would be no end to a suit if every obstinate

litigant could, by repeated appeals compel a court to listen to criticisms on their opinions



1
  We also note that, if Doyle’s future wage increases exceed the district court’s 2%
annual prediction, Klein may bring a motion to modify the permanent spousal
maintenance award in light of Doyle’s actual income. See Minn. Stat. § 518A.39, subd.
2(a)(1) (2014) (allowing a motion for modification of spousal maintenance to address
“substantially increased . . . income of an . . . obligee”).

                                              8
. . . .” Lange v. Nelson-Ryan Flight Serv., Inc., 116 N.W.2d 266, 269 (Minn. 1962)

(quotation omitted).

       Klein contends that, notwithstanding our statements in Doyle I and Doyle II, his

challenge to the district court’s post-Doyle I adoption of the $8,015 figure for Doyle’s

post-emancipation expenses is not barred because the law-of-the-case doctrine applies

only to legal issues, not factual matters. See Dean Van Horn Consulting Assocs., Inc. v.

Wold, 395 N.W.2d 405, 408 (Minn. App. 1986) (holding that the law-of-the-case doctrine

did not apply to a factual matter). But our statements in Doyle I and Doyle II addressed a

legal issue: the sufficiency of the district court’s findings regarding Doyle’s expenses.

Klein is therefore precluded from relitigating, as he attempts to here, whether the district

court’s factual finding is sufficiently supported by the record.

       The law-of-the-case doctrine “may also be applied to unappealed [district] court

decisions made at an earlier stage of the same case.” Emp’rs Nat’l Ins. Co. v. Breaux,

516 N.W.2d 188, 191 (Minn. App. 1994), review dismissed (Minn. Sept. 16, 1994). Even

if we allowed that Klein could have reasonably contested the $8,015 finding

notwithstanding our statement in Doyle I, he did not raise that issue in Doyle II, and he

did not file a petition for further review with the supreme court in either Doyle I or Doyle

II. As such, he forfeited his opportunity to contest the issue and is precluded from

challenging it now even if “none of the principles or doctrines requiring that judicial

decisions have preclusive effect apply to this case in a technical sense.”        Loo, 520

N.W.2d at 743-44; see also id. at 744 n.2 (holding that, even where the law-of-the-case

doctrine (or the related doctrine of res judicata) does not “quite fit,” preclusion applies


                                              9
when necessary to protect the “finality of judgments”). We echo the sentiment expressed

by the supreme court in General Mills, Inc. v. Commissioner of Taxation, 303 Minn. 565,

565, 228 N.W.2d 261, 261 (1975): “[T]here comes a time when litigation must end. We

believe that time has arrived in this case.”

                                                IV.

       Having addressed issues arising from the long-running litigation over the terms of

the district court’s 2008 judgment and decree, we turn now to Doyle’s motion to enforce

a cost-of-living adjustment provision.         Doyle argues that the district court erred by

denying her motion to implement a cost-of-living adjustment to her permanent spousal

maintenance award.       “A district court has broad discretion over issues of spousal

maintenance, and generally we will not reverse a decision regarding maintenance absent

an abuse of this discretion.” Grachek v. Grachek, 750 N.W.2d 328, 330-31 (Minn. App.

2008), review denied (Minn. Aug. 19, 2008).              But when the issue involves the

interpretation of a statute, we review it de novo. Id. at 331.

       A district court must include a cost-of-living adjustment provision when it

establishes, modifies, or enforces a spousal maintenance agreement.                Minn. Stat.

§ 518A.75, subd. 1(a) (2014). But it “may waive the requirement of the cost-of-living

clause if it expressly finds . . . that the order for maintenance . . . has a provision such as a

step increase that has the effect of a cost-of-living clause.” Id., subd. 1(b) (emphasis

added).

       The district court here stated that its 2% annual adjustments to Doyle’s expected

income on remand after Doyle II “effectively provide a level of maintenance not subject


                                                10
to yearly cost-of-living adjustments.”    Klein argues that this is a finding that these

adjustments are step increases that have the effect of a cost-of-living clause. But the

district court’s and Klein’s analyses turn the meaning of a cost-of-living adjustment on its

head. A cost-of-living adjustment is “[a]n automatic increase or decrease in the amount

of money, usu[ally] support or maintenance, to be paid by one party to another, the

adjustment being tied to the cost-of-living-adjustment figures maintained and updated by

the federal government.” Black’s Law Dictionary 399 (9th ed. 2009); see also Minn.

Stat. § 518A.75, subd. 1(a) (noting the sources that may be used to calculate cost-of-

living adjustments). A cost-of-living adjustment is therefore based on expected changes

in a maintenance recipient’s expenses, not her income. The district court’s consideration

of presumed 2% annual increases in Doyle’s income would leave her expected expenses

unchanged and have the effect of decreasing, rather than increasing, her spousal

maintenance award. As such, they are not step increases having the effect of a cost-of-

living-adjustment clause within the meaning of Minn. Stat. § 518A.75, subd. 1(b). We

therefore reverse the district court’s denial of Doyle’s motion to implement a cost-of-

living adjustment, and remand with instructions for the district court to implement a cost-

of-living adjustment in Doyle’s spousal maintenance award in a manner consistent with

this opinion.

       Affirmed in part, reversed in part, and remanded.




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