No. 14668
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN RE THE MARRIAGE OF
SHIRLEY M. VASHLER,
Petitioner and Respondent,
and
JOHN J. VASHLER,
Respondent and Appellant.
Appeal from: District Court of the Thirteenth Judicial
District,
Honorable Nat Allen, Judge presiding.
Counsel of Record:
For Appellant:
Moses, Tolliver and Wright, Billings, Montana
For Respondent:
Sandal1 and Cavan, Billings, Montana
Submitted on briefs: August 1, 1979
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Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
This is an appeal from the judgment of the District
Court, Yellowstone County, dissolving the marriage of the
parties, dividing the marital estate and fixing maintenance
and support payments.
The husband John J. Vashler appeals from the division
of the marital estate and the fixing of maintenance and
support payments. We decide the matter on briefs without
oral argument.
The parties to this action were married on August 7,
1954, in Billings, Montana. At the time of the marriage the
husband was employed with a printing company and the wife
worked at a local laundry. After five years of marriage
the parties used the money that the wife had earned for a down
payment on a house. Thereafter, the wife terminated her
employment, became a homemaker, and did not work outside of
the home during the rest of the marriage.
Two children were born of this marriage, Jay Darrell
Vashler, age 18 years at the time of the divorce, and Loren
Lynn Vashler, age 9 years. Jay Vashler pursues his college
education at Montana State University. Loren Vashler resides
at the family residence and attends school in Billings,
Montana.
At the time of the dissolution the parties' property
consisted of a house, furniture, fixtures and other personal
property in or about the house, a 1974 Pontiac automobile,
a 1974 pick-up truck, a 1962 Pontiac automobile, a checking
account, and a savings account. It was agreed by the parties
that the total value of the marital estate was $48,450.
The District Court found that the husband's average net
take home pay was approximately $1,200 per month for the five
-2-
months of January through May 1978. The District Court also
found that the husband's average take home pay was $1,300
per month from June 1, 1978 through August 1978, due to a
wage increase. The District Court found the wife to be
employable, but doubted whether she could find employment at
much over the minimum wage.
The decree of dissolution granted custody of Loren,
the minor child, to the wife subject to the husband's right
to visitation. The District Court ordered that the husband
pay $200 per month for the support of the minor child until
Loren reached the age of majority, or finished high school,
whichever occurs last.
The District Court ordered that title to the home remain
in the name of the husband and the wife as joint tenants with
right of survivorship. The wife was granted exclusive use
of the home, rent free, until Loren reached eighteen or
finished high school or until the wife should remarry. Upon
the occurrence of any one of these events, the home is to
be sold and the parties must equally divide the proceeds.
In addition, the District Court ordered the husband to
pay $250 per month for the first six months following the
entry of judgment, and $150 per month for the following thirty
months, to the wife for support and maintenance. The support
and maintenance award would terminate at the end of three
years, or earlier if the wife were to remarry.
The District Court equally divided the savings account.
The 1974 Pontiac was awarded to the wife and the 1974 pickup
truck and the 1962 Pontiac were awarded to the husband.
The issues presented on appeal are:
1. Was it proper for the court to keep title to the
house in joint tenancy?
-3-
2. Was the award of maintenance supported by the
evidence?
3. Was the award of maintenance in accord with the
Montana Marriage and Divorce Act?
4. Can the District Court properly take into consideration
certain overtime hours worked by the husband in determining
his gross income potential?
The substance of this appeal is whether the District
Court abused its discretion in the distribution of the marital
estate and in its award of maintenance. This Court has addressed
this issue in several recent decisions. Kaasa v. Kaasa (1979),
Mont . , 591 P.2d 1110, 36 St.Rep. 425; In Re Marriage
of Jorgensen (1979), Mont . , 590 P.2d 606, 36 St.Rep.
233; Kramer v. Kramer (1978), Mont . , 580 P.26 439,
35 St.Rep. 700; and Johnsrud v. Johnsrud (1977), Mont.
, 572 P.2d 902, 34 St.Rep. 1417.
The approach which we have used in considering this
issue was stated in Zell v. Zell (1977), Mont . I
570 P.2d 33, 35, 34 St.Rep. 1070, 1074, in this language:
"It is well settled in Montana that a district
court has far reaching discretion in resolving
property divisions and its judgment will not be
altered unless a clear abuse of that discretion
is shown. (Citation omitted.) The criteria for
reviewing the district court's discretion is:
Did the district court in the exercise of its
discretion act arbitrarily without employment of
conscientious judgment, or exceed the bounds of
reason in view of all the circumstances."
The husband contends that it was an abuse of discretion
for the District Court to leave the title to the house in joint
tenancy with right of survivorship. He contends that this runs
counter to the principle that the husband is entitled to one-
half of the residence, because he would be divested of an
interest if he were to die before the youngest child reached
eighteen or finished high school.
The District Court judge has a wide range of discretion
in disposing of marital property under section 40-4-202, MCA.
In this case the disposition of the property was well within
the permissible boundaries of this statute. Nowhere in this
statute or in the judgment is it provided that the husband
is entitled immediately to one-half of the residence. The
husband's interest in the real property as a joint tenant
is uneffected by the court's decree. The husband's right
of survivorship is not disturbed. All the order of the
District Court does is postpone any transfer of the interest
of the husband until the conditions of the decree have been
met.
It was not an abuse of discretion for the District
Court to decree that the title to the house was to remain in
joint tenancy with right of survivorship.
The husband next contends that the award of maintenance
was not supported by the evidence and that the award of
maintenance was not in accord with the applicable statutory
provisions. We will consider these contentions together.
Section 40-4-203, MCA, provides as follows:
"Maintenance. (1) In a proceeding for dissolution
of marriage or legal separation or a proceeding for
maintenance following dissolution of the marriage
by a court which lacked personal jurisdiction over
the absent spouse, the court may grant a maintenance
order for either spouse only if it finds that the
spouse seeking maintenance:
"(a) lacks sufficient property to provide for his
reasonable needs; and
"(b) is unable to support himself through appropriate
employment or is the custodian of a child whose
condition or circumstances makes it appropriate that
the custodian not be required to seek employment
outside the home.
"(2) The maintenance order shall be in such
amounts and for such periods of time as the court
deems just, without regard to marital misconduct,
and after considering all relevant facts including:
"(a) the financial resources of the party seeking
maintenance, including marital property apportioned
to him, and his ability to meet his needs independently,
including the extent to which a provision for support
of a child living with the party includes a sum for
that party as custodian;
"(b) the time necessary to acquire sufficient educ-
ation or training to enable the party seeking mainten-
ance to find appropriate employment;
"(c) the standard of living established during the
marriage;
" (d) the duration of the marriage;
" (e) the age a
n
' physical and emotional condition
of the spouse seeking maintenance; and
"(f) the ability of the spouse from whom maintenance
is sought to meet his needs while meeting those of
the spouse seeking maintenance."
The wife received the house to live in free of debts,
plus an automobile and the other items from the marital estate
which are listed above. The record discloses that the wife
cannot provide for her needs with this property.
The District Court found that the wife could only earn
the prevailing minimum wage due to her lack of formal education
and training. In addition, she has custody of a nine year old
child, and this added responsibility further decreases her
ability to secure employment. The maintenance payments are
to be made for only three years and will decrease from $250
per month to $150 per month six months following the entry of
judgment. After the three year time period expires the wife
will be required to support herself. She will receive $200
per month as child support until the child reaches the age of
eighteen or graduates from high school. The District Court
also found that the husband has a net income of $1,200 to
$1,300 per month.
In light of these facts we hold that the award of
maintenance is supported by the evidence and is within the
scope of section 40-4-203, MCA.
The husband's last contention is that it was error for
the District Court to consider his overtime pay. The District
Court found that the husband averaged about four hours of
overtime per week for which he received increased compensation.
There is uncontested evidence that the husband averaged five
hours a week overtime for the full year of 1977, and that he
averaged six to seven hours of overtime from January 1, 1978
through May 1978. For the District Court to estimate that the
husband averaged four hours of overtime per week is not error.
We cannot say that the District Court's disposition of this
case was arbitraryrltzrithoutemployment of conscientious judgment,
or exceed[ed] the bounds of reason in view of all the circum-
stances." Zell, supra,
-- Mont. at , 570 P.2d 35,
34 St.Rep. at 1074.
The judgment is affirmed. The costs on appeal are
awarded to respondent pursuant to Rule 33, M.R.App.Civ.P.
.................................
Chief Justice