No. 82-308
I N THE SUPREME COURT OF THE STATE O F M N A A
O T N
I N R THE PsLRRRIAGE OF
E
CHARLES D A V I D KOWIS ,
P e t i t i o n e r and Appellant,
-vs-
GLADYS SORENSON KOWIS,
Respondent and Respondent.
Appeal from: District Court of t h e Sixteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C u s t e r , The H o n o r a b l e
A. B. M a r t i n , J u d g e p r e s i d i n g .
C o u n s e l of R e c o r d :
For Appellant:
K e n n e t h R. W i l s o n , h l i l e s C i t y ,
For Respondent :
Brown a n d H u s s , Miles C i t y , Flontana
Submitted on B r i e f s : November 2 4 , 1982
Decided: February 4 , 1953
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Petitioner Charles Kowis appeals from the property
settlement and maintenance provisions of a decree of
dissolution of marriage entered in the Sixteenth Judicial
District Court. Petitioner raises a single issue for review:
Whether the District Court abused its discretion and acted
arbitrarily in distributing the marital ~ropertyand awarding
respondent $400 per month maintenance. We affirm the
District Court.
The parties were married in 1964, after residing
together for ten years. Petitioner, age 57, has a
ninth-grade education. He worked from 1951 to 1978 as a
janitor and an unlicensed boilerman at the Veteran's
Administration (V.A.) Hospital in Miles City. He was retired
in 1978 due to his high blood pressure, and became eligible
for lifetime disability retirement benefits, which, at the
time of this action, amounted to $1,319 per month, subject to
annual cost-of-livinq increases. Respondent, age 63, has an
eighth-grade education, and has not been employed since 1964
when she worked in the kitchen of the V.A. Hospital in Miles
City. She suffers from poor vision caused bv cataracts, and
cannot do heavy lifting. She is eligible for neither Social
Security benefits nor V.A. retirement benefits. The Rowises
had no children of the marriage and no debts at the time of
the dissolution.
In 1964, before her formal marriage to petitioner,
respondent received $19,324.49 in benefits following the
death of her son from a previous marriage. She resigned her
iob at the V.A. Hospital and withdrew all of her V.A.
retirement contributions in the amount of $1,804.33. Most of
respondent's money was spent on remodeling the three-room
Kowis home, which petitioner had bought for $2,800 some years
earlier. The remodeling included the addition of a bedroom,
patio, living room, bathroom, and fireplace. At the time of
this action, the Kowis house had an appraised value of
$39,900. Respondent (in 1964) also paid off $2,000 of
petitioner's accumulated debts; she paid $1,600 still owing
on the purchase price of the house; she purchased several
thousand dollars worth of household furniture, a 1964 Rambler
and several hundred silver dollars as an investment.
Respondent did not work outside the home during the 18
years of the marriage; petitioner supported the parties.
When he was retired, petitioner was earning approximately
$21,000 per year.
At the time of this dissolution, the Kowises were joint
owners of two interest-bearing certificates of deposit
(C.D.s), one in the amount of $24,170.71, one for $409.75.
Each party had a small individual checking account. The
marital property also included a V.A. Credit Union account
worth $1,144.25, and a 1973 Matador. Respondent lived in the
family home, and petitioner rented an apartment.
The District Court found the parties' monthly expenses to
Petitioner:
Rent
Food
Clothing
Laundry
Transportation and car expense
Medical and dental care
Recreation
Yiscellaneous
TOTAL $635.00
Respondent :
Taxes & insurance on home
Utilities
Food and household items
Clothing
Laundry
Transportation
Medical insurance
Medical and optical care
Recreation
TOTAL $511.15
The court listed the marital assets:
House at 2511 Clark, Miles City $39,900.00
C.D. at First Security Bank 24,170.71
C.D. at First Security Ba-nk 409.75
V.A. Credit Union 1,144.25
Household furniture and appliances 6,000.00
Petitioner's checking account 185.00
Respondent's checking account 159.00
TOTAL $71,968.71
The District Court noted that the marital assets also
included a 1973 Matador, 300 silver dollars, and petitioner's
V.A. pension, but that no specific value had been established
for these items. The value of the retirement benefits was
not constant, although the amount of the present monthly
payments was known. The court concluded:
"3. Considering the factors set forth in section
40-4-202, MCA 1981, an equitable division of the
property of the marriage would be as follows:
"a. Petitioner should receive the balance of the
C.D. at First Security Bank in the sum of
$24,170.71, the balance in the V.A. Credit Union of
$1,144.25, his checking account balance of $185.00,
the 1973 Matador and his V.A. Pension.
"b. Respondent should receive the family home at
2511 Clark, Miles City, Montana, the balance of the
C.D. at First Security Bank of $409.75, the 300
silver dollars and the household goods and
furnishings."
Finally, the District Court awarded respondent
maintenance of $400 per month, with cost-of-living increases
proportionate to those in petitioner's V.A. retirement
benefits, payable until respondent's remarriage or death.
Petitioner appeals, seeking either a reduction of
maintenance or a redistribution of the marital property.
Petitioner argues that because his financial
contribution to the marriage was far greater than
respondent's, and because her contribution in the form of
"housewifely duties" was negligible, the District Court's
award of twice the marital assets plus $400 per month
maintenance to respondent was an abuse of discretion.
We note first that the extent of respondent's
contribution as a homemaker was contested. Respondent
testified that, during the 18-year marriage, she cooked,
cleaned house, washed clothes, and, in short, did "evervthing
. . . a housewife would be expected to do". Petitioner
claimed he did the cooking and much of the cleaning. The
District Court concluded that respondent made a contribution
during her years as a homemaker, which assisted petitioner in
pursuing his occupation. With the exception of the death
benefits and V.A. benefits contributed by the respondent, and
the improved family home, the major marital
assets--petitioner's retirement benefits a.nd the jointly-owned
C.D.s--were derived from petitioner's employment at the V.A.
Hospital.
In Cameron v. Cameron (1978) 179 Mont. 219, 227, 587
P.2d 939, 944, this Court stated:
"The scope of this Court's review when considering
the findings and conclusions of a trial court
sitting without a jury is clear and well settled in
Montana. A brief consideration of those rules is
appropriate at this point. 'This Court's function
in reviewing findings of fact in a civil action
tried by the district court without a jury is not
to substitute its judgment in place of the trier of
facts but rather it is "confined to determining
whether there is substantial credible evidence to
support" the findings of fact and conclusions of
law. Hornung v. Estate of Lagerquist,l55 Mont. 412,
420, 473 P.2d 541, 546.' Olson v. Westfork
Properties, Inc. (1976), 171 Mont. 1 5 q 557 P.2d
821, 823, 33 St.Rep. 1133.
"Although conflicts may exist in the evidence
presented, it is the duty of the trial judge to
resolve such conflicts. His findings will not be
disturbed on appeal where they are based on
substantial though conflicting evidence, unless
there is a clear preponderance of evidence against
such findings. Westfork Properties, Inc., supra;
Butte Teachers1 Union v. Board of Education of
School District No. 1, ~ T l v e r~ o w C o u n t ~ 17)
(97,
Mont., 567 P.2d 51, 53, 34 St.Rep. 726; Rule 52(a),
We find there is sufficient evidence to support the District
Court's factual determination concerning respondent's
non-monetary contribution.
The standards governing review of a district court's
property distribution and award of maintenance are
well-settled in Montana. The District Court has far-reaching
discretion in making property divisions. Torma v. Torma
(1982) Mont . , 645 P.2d 395, 399, 39 St.Rep. 839, 843;
Zell v. Zel.1 (1977) 174 Mont. 216, 220, 570 P.2d 33, 35.
The reviewing court does not substitute its judgment for
that of the trial court, and will not alter a judgment unless
it finds an abuse of discretion, i.e., that the trial- court
acted arbitrarily without employment of conscientious
judgment or exceeded the bounds of reason resulting in
substantial injustice. Torma, 645 P.2d at 399, 39 St.Rep. at
843; Zell, 174 Mont. at 220, 570 P.2d at 35; Creon v. Creon
(1981) Mont. , 635 P.2d 1308, 1309, 38 St.Rep. 1828,
The District Court's findings and conc1usions are
extensive and detailed. The court painstakingly explained
its reasons for the distribution and award of maintenance,
applying the factors articulated in sections 40-4-202,203,
MCA, and recent decisions of this Court to the facts of this
case. Such procedure is expressly approved in In re Marriage
of Sell (1981) Mont . , 630 P.2d 222, 225, 38 St.Rep.
956, 959. The court properly considered the effect of
awarding respondent interest-consuming property without
awarding maintenance to prevent its dissipation, see Bowman
v. Bowman (1981) Mont. , 633 P.2d 1198, 1200, 38
St.Rep. 1515, 1518, and noted this Court's position in
D.C.V.M.C. (1981) Mont. , 636 P.2d 857, 859-60, 38
St.Rep. 2027, 2030:
"[Ilf the effect of not awarding maintenance is to
make a spouse a ward of the state, maintenance
should be awarded if possible. Stenberg v.
Stenberg (1973) 161 Mont. 164, 505 P.2d 110."
The court pointed out that petitioner's pension alone is
sufficient to meet his needs and provide the maintenance
awarded respondent.
The court considered the advanced age, ill health,
limited job skills and unemployability of both parties, as
well as their comparative future earnings potential and their
relative contributions to the marital estate. This is
proper. See Torma, 645 P.2d at 399, 39 St.Rep. at 843;
section 40-4-202, MCA. The court's consideration of
retirement benefits as part of the marital estate was also
appropriate. See In re Marriage of Laster,
(1982) Mont. 643 P.2d 597, 603, 39 St.Rep., 737, 743.
This Court has repeatedly held that, while a district
court, in its discretion, may equally divide the marital
assets, section 40-4-202, MCA, does not mandate equal
distribution. Martens v. Martens (1981) Mont. , 637
P.2d 523, 526, 38 St.Rep. 2135, 2138; In re Marriage of
Aanenson (1979) Mont. 598 P.2d 1120, 1123, 36
St.Rep. 1525, 1528. Here, the District Court thoroughly
explained the need for its apparently unequal division of
property, as well as its award of maintenance to respondent,
in terms consistent with the provisions of sections
40-4-202,203, MCA.
We find no abuse of discretion in the property division
and the award of maintenance. On the contrary, the court's
findings and conclusions reflect scrupulous care and
sensitivity in applying Montana law to the particular
circumstances of this case.
Petitioner decries the District Court's "wholesale
adoption" of respondent's proposed findings of fact and
conclusions of law, relying upon this Court's disapproval of
such procedure in Tomaskie v. Tomaskie (1981) Mont . I
625 P.2d 536, 539, 38 St.Rep. 416, 419. But, as this Court
noted in In re Marriage of Jensen, (1981) Mont. , 631
P.2d 700, 703-704, 38 St.Rep. 1109, 1113, and In re Marriage
of Hunter (1982) Mont . , 639 P.2d 489, 495, 39
St.Rep., 59, 67, where, as here, findings and conclusions are
sufficiently comprehensive and pertinent to the issues to
provide a basis for decision, and are supported by the
evidence, they will not be overturned simply because the
court relied upon proposed findings and conclusions submitted
by counsel.
We note in passing, that, except that the silver dollars
were awarded to respondent, the District Court's property
distribution is virtually identical to that proposed by
petitioner. Petitioner's dissatisfaction with the decree
arises from the court's award of $400 per month
maintenance--$225 per month more than that proposed by
petitioner. The court's award of maintenance has been found
to be properly related to the needs and future earning
capacities of the parties, and is well-supported by the
evidence. There is no abuse of discretion here.
Respondent has requested attorney's fees under Rule 32,
M.R.App.Civ.P., on the grounds that petitioner's appeal was
frivolous. While we agree that the questions of law have all
been settled in earlier Montana cases, we deny respondent ' s
request because the question of whether the District Court
abused its discretion was reasonably in issue. See Martens,
supra, Mont.at , 637 P.2d at 526, 38 St.Rep. at 2139.
Affirmed.
We concur:
Chief Justice