Mark J. Vierling, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for Respondent)

Tim D. Wermager, Attorney at Law, P.O. Box 6, 906 Vermillion Street, Hastings, MN 55033 (for Appellant)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

Appellant Edward Parkin argues that the district court abused its discretion by refusing to terminate or modify his maintenance obligation after he voluntarily accepted early retirement. We affirm.

My intention after Jan. 1, 1996 is not to pay you one more dime. You have been paid well over the last five years. * * * [N]o more checks until I hear from my lawyer.

In February 1996, appellant moved to terminate his spousal maintenance obligation.[1] The district court denied the motion, finding that appellant retired early to reduce or eliminate his spousal maintenance obligation. Appellant challenges the district court's refusal to terminate or modify maintenance; respondent seeks appellate attorney fees.

Appellant contends that the district court erred by refusing to terminate or modify his maintenance obligation after he retired. See Kruschel v. Kruschel, 419 N.W.2d 119 (Minn. App. 1988) (holding that obligor's retirement may constitute a change in circumstances justifying a modification of spousal maintenance). A modification of maintenance under Kruschel is not automatic, however, if the obligor retired and limited his income in bad faith. Richards v. Richards, 472 N.W.2d 162, 164-65 (Minn. App. 1991). To determine bad faith income limitation in connection with early retirement

the [district] court should consider the obligor's health and employment history, the availability of and expectations regarding early retirement at the time of the [dissolution], and the prevailing managerial policies and economic conditions at the time of retirement, together with whatever subjective reasons the obligor may offer.

Id. at 165.

The district court made findings on each of the Richards factors. It found that appellant was age 62 and "in apparently good health." Appellant "had been employed [by] American Airlines for over ten years prior to his retirement * * * earned a gross income of over $51,000 for 1995 and could have continued to earn that amount in subsequent years." Further, the district court found that early retirement was neither available to, nor anticipated by, either party at the time of the marriage dissolution. Regarding appellant's subjective reasons for early retirement, the district court noted that appellant sent to respondent the above quoted letter stating his retirement intentions. It also noted that he had neither paid maintenance nor deposited the Braniff pension for January, February, or March 1996. These findings are supported by the record. The district court also considered appellant's early retirement incentives from American Airlines. The district court found that appellant acted in bad faith in reducing his income through early retirement. We conclude that the district court's findings are not clearly erroneous. They support the district court's conclusion that appellant is not entitled to maintenance modification or termination.

2. Respondent requests attorney fees incurred in this appeal. This court has discretion under Minn. Stat. § 549.21 (1996) to award reasonable attorney fees where a party has acted in bad faith by asserting claims that are known to be frivolous or an unfounded position solely to harass or delay the proceeding. Because we see no evidence that this appeal was taken in bad faith or is frivolous, we decline to award the requested attorney fees.

Affirmed.

[ ]¹Appellant originally moved to vacate the judgment. At the hearing, however, the district court construed the motion as a motion to modify the award rather than vacate the judgment. Appellant did not challenge the court's treatment of the motion.