No. 14315
IN THE SUPREEJE COUR!F O THE STATE O !0 T m
F F 1N A
1978
Petitioner and Appellant,
and
Respondent and Respondent.
Appeal frm: D i s t r i c t Court of the Thirteenth Judicial District,
Honorable Leonard H. Langen, Judge presiding.
Counsel of Record:
For Appellant:
Sandall and Cavan, Billings, Mntana
John Cavan argued, Billings, Pbntana
For Respondent:
Berger, Anderson, Sinclair & Murphy, Billings, Mntana
Richard Anderson argued, Billings, Mntana
Sdmitted: November 15, 1978
Decided: OEc 1 2 1978
Filed: DF' - ???8
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Petitioner Dale A. Madson brought this action in the
district court of the Thirteenth Judicial District, Yellow-
stone County, seeking a dissolution of his marriage to
respondent, Shirley E. Madson. Trial was had before the
court sitting without a jury. The district court entered
its findings and conclusions on February 28, 1978, and its
judgment and order decreeing the dissolution, property
division, custody award, and award of maintenance and child
support on March 7, 1978. Petitioner appeals from the award
of maintenance set forth in the judgment and decree.
Dale, age 50 at the time of the decree, and Shirley,
then age 48, were married August 22, 1950. They have five
children: Bruce 26, Mark 24, Jeff 22, Peter 19, and Marilyn
16. Peter and Marilyn were living at home at the time of
the dissolution and respondent was given custody of Marilyn.
Petitioner and respondent have been separated since January
30, 1970.
Petitioner is vice-president and manages the Billings
operation of the Colborn School Supply Company, a closely-
held corporation. Petitioner also owns the largest single
block of stock in that corporation (23% of the outstanding
shares). Petitioner in addition is president of M & L Realty
Company which owns the buildings housing the Billings,
Montana and Grand Forks, North Dakota operations of Colborn.
Petitioner's salary as an officer of Colborn is approximately
$53,000.00 annually. Petitioner also holds insurance policies
with cash values of approximately $18,000.00 and participates
in a profit sharing plan of which his share is approximately
$21,000.00 Petitioner's stock holdings in Colborn included
in the marital estate were valued by the district court at
$78,590.00 (542 shares at $145.00 per share). There was
however, conflicting testimony on the value of these shares.
The court valued petitioner's stock holdings in the realty
company, included in the marital estate, at $21,150.00 (141
shares at $150.00 per share). In addition, petitioner holds
demand notes from the two companies totaling $18,150.00 and
has a 50% interest in a Mazatlan, Mexico condominium valued
at $10,000.00.
It was testified at trial that petitioner contributed
approximately $18,000.00 in 1976 to support respondent and
the two children at home. It was further testified that
petitioner over the course of the seven and one-haIf year
separation, contributed approximately $132,000.00 to the
support of his family. Petitioner also testified that
during this time period his net worth was increasing.
Respondent has not worked for remuneration during the
27 years of the marriage. She was at the time of the marriage
in 1950 engaged in nurses training but terminated when she
was married. Since her marriage she has devoted her time
and energy to raising her family in part due to the wishes
of petitioner. She testified at trial that she possesses no
technical skills and that she had been advised not to
return to her nurses training because of its physical and
mental demands. Respondent testified the only work she had
ever done for remuneration was as a maid and babysitting in
high school. Respondent testified she suffers from an
ailment which can be surgically corrected, and occasionally
from sciatica, and varicose veins. Respondent also indicated
a willingness to take training to prepare herself for
remunerative work.
Respondent admitted at trial she often aids her older
children financially and gives them gifts. She does little
socially and travels infrequently.
In its findings the district court determined the
marital estate to have a value of $238,762.00. This con-
sisted of the family home in Billings and its furnishings,
valued at $85,000.00, Colborn stock held by petitioner (the
court excluded stock devised to petitioner by his father
during the separation from respondent), realty company stock
(excluding shares devised to petitioner during the separation),
life insurance cash values, interests in the pension and
profit sharing plans of Colborn, demand notes and petitioner's
interest in the condominium in Mexico. The court awarded
respondent $120,000.00 as her equitable share to be made up
of the home, its furnishings and $35,000.00 cash.
The district court, after making detailed findings
concerning the value of Colborn and the realty company stock
and dividing the marital assets, found respondent had no
employment or income history. The court found the respondent
suffered from physical ailments, some of which could be
corrected, and that respondent was willing to undergo
vocational training and could become employable. The court
then made findings concerning the income of petitioner and
determined he could afford to pay $12,000.00 annually in
maintenance until respondent remarries or dies. The court
provided for an increase in maintenance sh~uldthe cost of
living increase as determined by federal government stat-
stics.
The district court entered its decree and judgment
based on its findings and conclusions on March 7, 1978.
Petitioner appeals from that portion of the judgment setting
the maintenance award.
Petitioner contends the district court abused its
discretion by not making specific findings on respondent's
reasonable needs before awarding maintenance. In conjunction
with this contention petitioner argues the district court
also abused its discretion by not requiring non-income
producing property (the family home) awarded to respondent
to be converted into income-producing property, and by not
requiring respondent, who it found could become employable,
to seek training and employment before it determined and
awarded maintenance. Our review of the record, however,
reveals no abuse of discretion; thus we affirm the judgment
of the district court.
The criteria by which this Court measures alleged
abuses of discretion has been recited many times. We will
not alter the judgment of a trial court sitting without a
jury, particularly in dissolution matters, unless the record
demonstrates the district court acted arbitrarily, without a
reasonable basis, resulting in substantial injustice. In Re
the Marriage of Caprice (1978), Mont . , 585 P.2d 641,
35 St.Rep. 1460, 1464; Jerome v. Jerome (1978), Mont . I
574 P.2d 997, 35 St.Rep. 148. It is true the district
court here did not specifically enumerate what it considered
to be respondent's reasonable needs. However, it did find
respondent was a 48 year-old woman, with health problems,
who had no employment history, and was without practical
means of support. The court heard uncontradicted testimony
concerning the amounts petitioner had voluntarily contributed
to the support of the family during the seven year separation.
The court also heard uncontradicted testimony concerning
amounts respondent spent in 1976 for living expenses. The
credibility of the witnesses is for the trial court to
determine and not this Court. Easton v. Easton (19781,
Mont . , 574 P.2d 989, 35 St.Rep. 123. After a
review of the record we do not find the district court
abused its discretion by not making a specific finding of
reasonable needs.
-5-
The petitioner has also argued that in this case
section 48-322, R.C.M. 1947, requires the non-income producing
property awarded to respondent be sold and the proceeds
invested to produce income, and requires respondent be
ordered to seek job training to become employed before
maintenance may be properly awarded. Petitioner has cited
no authority supporting this position and we are unable to
find any. Moreover, jurisdictions interpreting the identical
section have stated the criteria of lack of sufficient
property for reasonable needs and inability to support
through appropriate employment are relative. Lindsay v.
Lindsay (1977), 115 Ariz. 322, 565 P.2d 199, 203; Casper v.
Casper (Ky. 1974), 510 S.K.2d 253, 255; Sharp v. Sharp ( K y .
1974), 516 S.W.2d 875, 877; Colley v. Colley (Ky. 1970), 460
S.W.2d 821, 827. The appropriate construction of the language
of section 48-322(1) (a) and (b), R.C.M. 1947, is whether the
spouse seeking maintenance lacks sufficient property and is
unable to support herself through appropriate employment
according to the standard of living established during the
marriage. Lindsay, supra; Casper, supra; Colley, supra.
Evidence was introduced at trial indicating the standard of
living enjoyed by the respondent during recent years, but no
evidence was introduced as to respondent's earning cap-
abilities or the income producing potential of the real
property awarded to respondent. We recognize there are
public policy considerations behind rehabilitative spousal
maintenance awards which, under appropriate circumstances,
may give incentive to the spouse receiving maintenance to
procure job skills so as to become selfsufficient. However,
this public policy must be balanced with some:
"realistic appraisal of the probabilities that the
receiving spouse will in fact subsequently be able
to support herself in sone reasonable approximation
of the standard of living established during the
marriage, especially when a marriage of long-term
duration is involved and the employment history
shows a long-term absence of the spouse from the
labor market with lack of a presently existing employ
ment skill." Lindsay, 565 P.2d at 205. (Emphasis
added. )
It is noteworthy that in this case we have a husband
who has been generous in the support given to his wife
during their separation. Our conclusicn here is that the
needs of his wife have been established, principally through
his generosity, and his income warrants the district court's
award of maintenance, especially in the light of the income
tax impact on a high earner such as the husband.
We find no abuse of discretion in the findings, con-
clusions and judgment of the district court, and affirm its
decision.
Justice
We Concur:
C h i p Justice
// Justices