No. 80-189
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
IN RE THE MARRIAGE OF
RICHARD JAMES LEVANDOWSKI,
Petitioner and Appellant,
-vs-
DONNA MARIE LEVANDOWSKI,
Respondent and Respondent.
Appeal from: District Court of the Eighth Judicial District,
In and for the County of Cascade, The Honorable
John M. McCarvel, Judge presiding.
Counsel of Record:
For Appellant:
Asselstine & Cruikshank, Great Falls, Montana
For Respondent :
Alexander & Baucus, Great Falls, Montana
Submitted on Briefs: March 11, 1981
Decided : #L ;C
Filed: -2 - 1981
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
Appellant, Richard Levandowski, filed a petition for
dissolution of marriage, for property division and for the
custody of the minor children. Respondent, Donna
Levandowski, filed a response, admitted that the marriage
was irretrievably broken, sought child custody, property
division, maintenance and attorney fees from appellant.
Following a trial the District Court granted the
dissolution of the marriage, made a property division,
awarded appellant custody of the minor boy and respondent
custody of the minor girl, and ordered appellant to pay
respondent maintenance payments, support for the minor
child, and attorney fees. From these findings of fact,
conclusions of law and order appellant appeals.
The parties were married on June 20, 1959. Four
children were born of the marriage. The marr iage was
dissolved on February 25, 1980.
Respondent married appellant shortly after high
school. She had no formal training except for recent
studies. Respondent worked as a secretary. Her gross
earnings were approximately $7,000 for the year prior to
separation.
Appellant is a battalion chief for the City of Great
Falls Fire Department. He has seventeen years' experience.
Appellant also worked a parttime job and belonged to the
Naval Reserves. His gross earnings were in excess of
$22,000.
The District Court found that respondent's actual
earning capacity was in line with her present training and
capabilities. The substantial assets of the marriage were
the family home, personal property and appellant's pens ion.
The pension's value was approximately $8,900; the value of
the personal property was approximately $2,500. The family
home was encumbered by a mortgage of approximately $7,000 at
the time of dissolution, and its appraisal ranged from
$45,000 to $52,000.
The District Court awarded the pension solely to
appellant. The District Court ordered that the home be sold
in approximately two years and the net proceeds be divided
equally at that time. The personal property was also to be
sold at the time of the sale of the house and equally
divided .
Respondent was allowed to stay in the house until the
parties' minor child graduated from high school or until
respondent remarried. Appellant was responsible for the
house payments, insurance, taxes and any repairs in excess
of $100. Respondent was continuing her education at the
College of Great Falls and expected to graduate in two
years. She was granted maintenance on a temporary basis for
her schooling in the amount of $200 per month. Appellant
also was ordered to pay respondent's reasonable attorney
fees .
We are asked to review the following issues:
Whether the findings of fact, conclusions of law and
judgment were proper and whether there was sufficient
evidence to support those findings; whether the property
division was proper; whether the order to pay maintenance
was proper; and whether the District Court erred in awarding
attorney fees to respondent.
A review of the record indicates that the District
Court did not e r r in its findings, conclusions and o r d e r .
The f i n d i n g s were detailed, reasoned and s u p p o r t e d by t h e
evidence presented a t t r i a l . The D i s t r i c t C o u r t c o o r d i n a t e d
t h e maintenance and p r o p e r t y d i v i s i o n judgment without
abusing its d i s c r e t i o n . In dividing the property, the court
f o u n d t h a t t h e p a r t i e s had made e q u a l c o n t r i b u t i o n s t o t h e
marital estate.
S e c t i o n 40-4-202, MCA, requires the court t o consider
the following prior t o dividing the marital property:
". . . t h e d u r a t i o n of t h e marriage . . . the
a g e , h e a l t h , s t a t i o n , o c c u p a t i o n , amount and
sources of income, vocational skills,
e m p l o y a b i l i t y , e s t a t e , l i a b i l i t i e s and n e e d s
of e a c h of t h e p a r t i e s ; . . . whether t h e
apportionment is i n l i e u of o r i n a d d i t i o n t o
m a i n t e n a n c e ; and t h e o p p o r t u n i t y o f e a c h f o r
f u t u r e a c q u i s i t i o n of c a p i t a l a s s e t s and
income. The c o u r t s h a l l a l s o c o n s i d e r t h e
c o n t r i b u t i o n o r d i s s i p a t i o n of v a l u e of t h e
r e s p e c t i v e e s t a t e s and t h e c o n t r i b u t i o n o f a
s p o u s e a s a homemaker o r t o t h e f a m i l y u n i t
. . . I1
The standard for review of the District Court's
d e c i s i o n is w e l l - s e t t l e d :
"A D i s t r i c t C o u r t h a s f a r - r e a c h i n g d i s c r e t i o n
i n r e s o l v i n g p r o p e r t y d i v i s i o n s , and its
judgment w i l l n o t be a l t e r e d u n l e s s a c l e a r
a b u s e o f d i s c r e t i o n i s shown. . . The t e s t
f o r reviewing t h e D i s t r i c t C o u r t ' s d i s c r e t i o n
is: Did t h e D i s t r i c t C o u r t i n t h e e x e r c i s e
of i t s d i s c r e t i o n a c t a r b i t r a r i l y w i t h o u t
employment o f c o n s c i e n t i o u s j u d g m e n t , o r
e x c e e d t h e bounds o f r e a s o n i n v i e w o f a l l o f
the circumstances? [Citations omitted. 1" In
Re t h e M a r r i a g e o f J a c o b s o n , ( 1 9 7 9 ) ,
Mont . , 600 P.2d 1 1 8 3 , 1 1 8 6 , 36 S t . R e p .
1 7 7 3 , 1776.
The District Court did not act arbitrarily in
dividing the marital estate. The record is r e p l e t e w i t h
competent c r e d i b l e evidence concerning t h e f a c t o r s s e t f o r t h
in section 40-4-202, MCA. The court determined the net
v a l u e of t h e m a r i t a l e s t a t e and t h e n d i v i d e d i t .
Appellant's pension was by far the greatest
unencumbered asset. His contributions at the time of the
dissolution of the marriage were approximately $8,900. That
figure does not include the matching contribution of his
employer. The court awarded the pension to appellant as his
sole property.
Further, the distribution of the District Court
particularly considered (a) the present and future earning
capacity of the parties; (b) the education, vocational
skills, employability and needs of the parties; and (c) the
needs of the wife for additional maintenance. Appellant's
earning capacity was three to four times greater than that
of respondent. She had no formal training since she was
married one month out of high school. The court found that
her employment matched her education and training. She is
presently enrolled in a two-year associate degree program at
the College of Great Falls, which the court further
considered in structuring the property division and
maintenance award.
The court used good judgment in structuring its
order. Respondent suddenly found herself on her own after
twenty-one years of marriage. Her net income was equal to
that earned by appellant at his parttime job. Until she
completes her present schooling, respondent needs
maintenance in add it ion to the property distribution. The
property distribution is properly delayed for approximately
two years. In the interim, the court's award of $200 per
month to respondent to help her through school and the
exclusive use of the family home was the only method by
which respondent could get to a position where she could
properly care for herself during the remainder of her
lifetime.
Appellant argues that t h e D i s t r i c t Court failed to
determine t h e p r e s e n t value of t h e m a r i t a l e s t a t e . However,
t h e f i n d i n g s and o r d e r d e t a i l t h e v a l u e s o f t h e p r o p e r t y and
their encumbrances. S e c t i o n 40-4-203, MCA, enumerates
factors to be considered in awarding maintenance. The
f a c t o r s a r e s i m i l a r t o t h o s e employed i n t h e d i s t r i b u t i o n o f
property: (a) the respective earning capacity of the
parties; ( b ) t h e s t a n d a r d of living established during the
marriage; (c) the time necessary to acquire a sufficient
education; and ( d ) each spouse's ability to independently
meet t h e i r needs.
The A c t provides for the coordination of property
d i s t r i b u t i o n and m a i n t e n a n c e t o a s s u r e t h a t a s p o u s e w i t h o u t
the ability to support herself will be maintained at a
s i m i l a r standard of l i v i n g . The D i s t r i c t C o u r t c o o r d i n a t e d
the property division with the needs of respondent for
maintenance. T h i s m a i n t e n a n c e was a l s o d i r e c t l y r e l a t e d t o
h e r c o m p l e t i o n o f a two-year a s s o c i a t e degree i n business a t
the College of Great Falls. The maintenance payment
terminates upon the completion or termination of her
education.
The d e c i s i o n o f t h e D i s t r i c t Court is soundly based
upon the income, property, needs and abilities of the
parties. The f i n d i n g s a r e d e t a i l e d i n t h i s r e g a r d and w i l l
n o t be d i s t u r b e d on a p p e a l .
Appellant argues that the District Court erred in
awarding a t t o r n e y f e e s t o respondent. Respondent's counsel
t e s t i f i e d t h a t a s o f t h e c o n c l u s i o n o f t h e h e a r i n g h e would
have expended twenty-three hours in the preparation and
t r i a l of t h e c a s e .
This a c t i o n was a vigorously contested dissolution
wherein respondent had limited resources and income to
retain an attorney. Appellant's attack on the award of
a t t o r n e y f e e s is n o t b a s e d upon t h e need o f respondent o r
the amount of time expended by her counsel. However,
appellant claims that there was no independent testimony
w i t h r e g a r d t o t h e r e a s o n a b l e n e s s o f a f e e o f $55 t o $60 p e r
hour. A t best, t h i s constituted harmless e r r o r .
The District Court awarded attorney fees in the
reduced amount of $700. The District Court reduced
counsel's fee to a r a t e of approximately $30.44 per hour,
b a s e d upon t w e n t y - t h r e e h o u r s of t i m e .
This Court has recognized t h a t a t t o r n e y f e e s may be
properly awarded absent independent testimony of
reasonableness. See Bailey v. Bailey (1979), Mont.
, 603 P.2d 259, 36 S t . R e p . 2162. A r e h e a r i n g on t h i s
i s s u e would s e r v e no u s e f u l p u r p o s e i n l i g h t of t h e r e d u c e d
award by the District Court. The award of the District
C o u r t of a f e e of $30.44 p e r hour i s r e a s o n a b l e .
Affirmed.
We concur:
Mr. J u s t i c e Frank B . M o r r i s o n , J r . , c o n c u r r i n g :
I c o n c u r b u t do n o t t h e r e b y a p p r o v e o f d i v i d i n g t h e
m a r i t a l e s t a t e a s was done h e r e . There i s a s i g n i f i c a n t d i f -
f e r e n c e i n t h e f u t u r e e a r n i n g c a p a c i t y of t h e husband and
wife. Though t h e husband h a s t h e g r e a t e r o p p o r t u n i t y t o
acquire f u t u r e a s s e t s t h e wife received l e s s than half the
estate. See Smith v. Smith ( 1 9 8 1 ) , ,
Mont. - 622 P.2d 1022,
" 38 St.Rep. 146; T e f f t v. T e f f t ( 1 9 8 1 ) , -Mont. f -P.2d -,
38 St.Rep. 837.
Only b e c a u s e t h e w i f e d o e s n o t h e r e complain do I v o t e t o
affirm.