No. 14872
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MARRIAGE OF
KENNETH REESE,
Petitioner and Respondent,
VS .
MARTHA LOUISE REESE,
Respondent and Appellant.
Appeal from: District Court of the Fourth Judicial District,
Honorable E. Gardner Brownlee, Judge presiding.
Counsel of Record:.
For Appellant:
Datsopoulos and MacDonald, Missoula, Montana
For Respondent :
Garnaas, Hall, Riley & Pinsoneault, Missoula, Montana
Submitted on briefs: November 14, 1979
I)EC 3 1 1973
Decided :
Filed:
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Martha Louise Reese appeals from a property division
and maintenance award entered in a marital dissolution
action in the Fourth Judicial District, Missoula County.
Martha and Kenneth Reese were married on February 10, 1966
and resided together until their separation in October 1977.
Kenneth petitioned for dissolution in June 1978. Martha
responded and agreed to the dissolution in August 1978. She
prayed for $600 per month maintenance. Both parties sought an
equitable property division.
At the time of the marriage of the parties in 1966,
Kenneth was 44 years of age and had been an employee of the
Missoula City Police Department for a period of 16 years. Martha
was 49 years of age and was engaged in a contract cleaning
business with the Hoerner-Waldorf Company, located in
Missoula.
During the marriage, Martha received title to 136.95 acres
of land situated in Powell County, Montana, as an inheritance
from her mother. During the course of the marriage the parties
paid the taxes on the land from joint funds. Following the
separation of the parties, Martha divested herself of the land
by deeding it to her children in joint tenancy. Subsequently
one of the children died which resulted in that child's interest
in the property reverting to Martha who in turn divested herself
of the property by deeding it to her remaining children.
Kenneth did not claim ownership of any portion of this land
but asserted that it should be included as an asset in determining
the claim of Martha to maintenance.
During the course of the marriage, the parties accumulated
debts and obligations which totaled $15,000 at the time the
parties separated. The total assets of the parties consisted
of a trailer house valued at $3,200, a 1972 Jeep pickup
worth $2,000, a 21 foot 1978 travel trailer which cost $8,000,
a 1978 American Motors automobile which cost $5,000 and a
motorcycle with a value of $1,400. The assets were mortgaged
for a total amount of $15,000.
Martha presently has independent income of $425 per
month resulting from a payment to her by the Social Security
Administration of $135.90 per month and income from employment
in the cleaning business of $290 per month. Martha divested
herself of ownership of the cleaning business by transferring
it to her son for whom she now works. The maximum amount
which Martha can earn without incurring a reduction in Social
Security payments is the sum of $290 per month.
Kenneth receives income of $545 per month as a disability
pension from the City of Missoula. Since September 24, 1970
and at the time of trial he was employed as a security officer
by Hoerner-Waldorf and received $6.90 per hour. In addition,
Kenneth will become entitled to a pension from Hoerner-
Waldorf of $180 per month after completion of ten years of
service, and upon retirement, in lieu of the wages mentioned
above.
Both parties testified that they suffered from physical
disabilities. Martha testified she suffers from an arthritic
condition and Kenneth testified that physical disabilities
resulted in his being retired from the Missoula Police Depart-
ment.
Dissolution was granted in 1979 and Kenneth was ordered
to pay $100 per month maintenance. The property was divided
as follows: Martha was awarded the trailer house, furnishings,
and the car which was in her possession. Kenneth received the
rest of the property and assumed all of the debts incurred
before separation.
It is from this award that Martha appeals alleging the
following two issues as error:
- 3-
(1) The findings and conclusions of the District Court
are inadequate as a matter of law.
(2) The District Court erred in awarding only $100
.per month maintenance to Martha.
Martha contends that the District Court erred in failing
to include in its findings and conclusions, an express deter-
mination of the net worth of the parties at the time of
dissolution of their marriage. In a recent decision, this
Court stated:
"Ordinarily the trial court must first determine
the net worth of the parties at the time of their
divorce before a proper distribution of marital
property can be made. Vivian v Vivian (1978), Mont .
, 583 P.2d 1072, 35 St.Rep. 1359. But where,
as here, the only issue is the disposition of the
family home and furnishings, the net value thereof
was not an issue. Under such circumstances, the
failure of the District Court to find the net worth
of the marital property is of no consequence."
Schwartz v. ~chwartz (1979), Mont. I
P.2d , 36 St.Rep. 1980, 1981.
Similarly, here, net value of the family property is
not an issue. Furthermore, in the presence case, "[tlhere
is no evidence in the record that the trial court did not
establish the net worth of the marital estate prior to granting
maintenance to [the] petitioner." Maberry v. Maberry (19791,
Mont. , 598 P.2d 1115, 1116, 36 St.Rep. 1511, 1513.
Appellant additionally asserts that the facts do not
support the findings of the District Court. "Findings of fact
shall not be set aside unless clearly erroneous.. . ." Rule
52(a), M0nt.R.Civ.P. The substance of this issue is whether
the lower court abused its discretion in the distribution
of the marital property and in making the award of maintenance.
The judgment of the District Court will not be altered unless
a clear abuse of discretion is shown. In Re Marriage of
Vashler (1979), Mont. , 600 P.2d 208, 210, 36 St.Rep.
1726, 1728; In Re Marriage of Metcalf (19791, Mont . I
598 P.2d 1140, 1142, 36 St.Rep. 1559, 1562; In Re Marriage of
Aanenson (1979), Mont. , 598 P.2d 1120, 1123, 36
St.Rep. 1525, 1528; In Re Marriage of Kramer (1978),
Mont . , 580 P.2d 439, 442, 35 St.Rep. 700, 704; Zell v.
Zell (1977), Mont . , 570 P.2d 33, 35, 34 St.Rep.
1070, 1074.
The District Court in making its property and main-
tenance determinations must consider the factors enumerated
in sections 40-4-202 and 40-4-203, MCA. The record here
indicates that the District Court heard testimony and reviewed
other evidence concerning the relevant factors set out in
the statutes. We conclude that the District Court did not
err in awarding maintenance of $100 per month to the appellant.
The decision of the District Court is affirmed.
Justice
We Concur:
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Justices