No. 84-235
IN THE SUPREP.IE COURT OF THE STATE OF MONTANA
1984
114 RE THE MARRIAGE OF
JOY M. SCHENCK,
Petitioner and Respondent,
-vs-
JOSEPH W. SCHENCK,
Respondent and Appellant.
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 FSXORD:
For Appellant:
Hartelius & Ferguson; Cameron Ferguson, Great Falls,
Montana
For Respondent:
Church, Harris, Johnson & Williams; Don A. LaBar,
Great Falls, Montana
Submitted on Briefs: July 27, 1984
Decided: November 15, 1984
Filed: MOV 1 5 f904
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Joseph W. Schenck appeals from a decree of dissolution
of his marriage to Joy M. Schenck, entered in the District
Court, Eighth Judicial District, Cascade County, which
awarded Joy spousal maintenance of $500 per month.
On appeal, Joseph argues that the court did not consider
the statutory requirements for an award of mai~tenance to
Joy, that the award of maintenance awarded was excessive, and
that there should have been a limit on the duration of the
maintenance award. On consideration of these issues, we
a£firm.
The parties were married on January 30, 1965. Two
children were born during the marriage. Both have reached
majority, the younger on September 20, 1984. At the time of
the divorce, Joseph was 42 years old and Joy was 37 years
old. She was in normal health except for a back condition
which prevents her from lifting heavy objects.
Joseph is employed- by the Burlington Northern Railroad
as a car man. His 1983 gross income was $34,201 and his net
income, including his overtime, $24,030. His base pay for
1983 would have allowed him $1,700 per month in take-home
Pay
Joy had worked at various tempora.ry jobs during the
marriage, but she was primarily a homemaker. She has,
however, worked as a real estate salesperson since the middle
of 1982. Her net income in the year 1983 appears to have
been $10,668, less business expenses of S5,079.
The District Court found the net marital estate to be
$63,855. Joy was award.ed:
Personal Property Distributed $7,825
Less ~iabilities-~ssumed
Difference in Value of Personal
Property (to be paid when house
sells) $5,525
Excess in Savings Account after
Equal Division 573
Half of Equity in House after
Distribution to her of
$5 ,525
($43,979 - $5,5253 x 50% =
Total
Essential-ly the District Court awarded Joy one-half of
the marital estate. The principal asset of the estate is a
house "in the country" valued at $110,000 in which the
parties have an equity of a-pproximately $44,000. The
District Court provided that Joseph should make payments of
$686 per month until the house is sold. The proceeds of the
sale of the house are to be divided equally between the
parties in accordance with the court's directions.
Joseph showed month1.y 1iving expenses of approximately
$500. Joy showed average monthly 1-iving expenses of $1,000
for herself and the child. The court actually awarded to Joy
$250 in monthly child support to be paid by Joseph until the
younger child turned 18, and $250 in maintenance. After
September 20, 1984, the amount of maintenance shall be $500
per month.
On the first issue, whether the District Court should
have awarded maintenance to Joy, Joseph argues that under
section 40-4-203, MCA, the court may on1.y grant maintenance
for a spouse if two conditions are present: the spouse
seeking maintenance lacks sufficient property to provide for
her needs and j.s unable to support herself through
appropriate employment. Here, Joseph contends, after the
sale of the house Joy will have approximately $22,000 to
invest and a net income from her real estate business of at
least $500 per month. He maintains, therefore, that the
qualifications required under the statute for maintenance
were not established in this cause.
On the first issue Joy answers that this Court will not
substitute its judgment for that of the District Court but
rather determine whether there is substantial evidence to
support the findings and conclusions of the District Court.
and Marriage of Thompson (Mont. 1984), 676 P.2d 223, 41
St.Rep. 237; Kowis v. Kowis (Ilont. 1983), 658 P.2d 1084, 40
St.Rep. 149; Carr v. Carr (Mont. 1983), 667 P.2d 425, 40
St.Rep. 1263.
Joy's answer to the first issue does not fully meet the
contention raised by Joseph that section 40-4-203, MCA,
requires a finding by the court that the spouse receiving
maintenance lacks sufficient property to provide for her
needs and is unable to support herself through appropriate
employment. The District Court, however, did recite that it
had considered this statute in making the maintenance award.
There are factors in the record which make it clear that
the District Court was correct in awarding maintenance to
Joy. At the time of the divorce, after a marriage of 19
years, she had little more than one year % experience as a
real estate salesperson. It was impossible for the District
Court to determine her probable income from such an
occupation without her further experience. After the
residence of the parties is sold, she will undoubtedly incur
rental expense. Considering the duration of their marriage,
the short period of her business experience, and the
husband's ability to pay, it appears satisfactorily from the
record that the requirements of section 40-4-203, MCA, are
met in that she does not have sufficient property to provide
for her needs nor is there sufficient proof in the record to
establish that she is able to support herself through
appropriate employment.
Joseph's second contention is the amount of maintenance
is excessive. Here we face a matter of judgment essentially
within the broad discretion of the District Court which we
may not set aside unless the District Court is clearly
erroneous. Joseph contends that his potential for future
railroad retirement benefits may have been considered by the
District Court, but nowhere in the record is there any
indication that the court did take his potential railroad
benefits into consideration.
The third issue is whether the District Court should
have placed a limit on the period of time that Joseph should
pay maintenance. Here, Joseph argues that a permanent award
in effect subsidizes Joy so she will have little incentive to
improve her earnings from her work as a real estate
salesperson. The factors, however, which the Court is
required to consider in connection with the award of
maintenance are those in section 4 0 - 4 - 2 0 3 ( 2 ) , MCA. These
include not only the financial resources of the parties
seeking maintenance, but the standard of living established
during the marriage, the duration of the marriage, the age
and physical condition of the spouse seeking maintenance, and
the ability of the spouse for whom maintenance is sought to
meet her needs while meeting those of the spouse seeking
maintenance.
The District Court found that the present monthly
expenses for Joy and her child living with her averaged $900
to $1,000 per month. It found that after the house is sold
and s h e must pay r e n t , h e r expenses w i l l i n c r e a s e $300 t o
$400 p e r month. She m u s t a l s o p r o v i d e f o r h e r own h e a l t h
insurance, dental care, and p l a n f o r h e r f u t u r e . Based on
her s a l e s experience, t h e D i s t r i c t Court found t h a t a f a i r
a s s e s s m e n t was s h e would n o t e a r n more t h a n $600 p e r month
n e t take-home pay. The c o u r t had b e f o r e it l i t t l e o r no
e v i d e n c e t o f o r e c a s t a d a t e i n t h e f u t u r e when t h e a.mount o f
m a i n t e n a n c e r e q u i r e d by h e r would b e less t h a n $500 p e r month
or nothing a t a l l . 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 , the
District Court made a determination which provides
maintenance without a t i m e l i m i t . The p r o t e c t i o n t o J o s e p h
for changed circumstances in the future lies in the
provisions f o r modification of t.he maintenamce award u n d e r
proper circumstances under s e c t i o n 40-4-208, MCA. In the
meantime, t h i s C o u r t h a s no more b a s i s upon which t o l i m i t
the duration f o r ma.intenance t h a n d i d t h e D i s t r i c t C o u r t .
The decree of the District Court with respect to
maintenance i s affirmed. n
Justice
W e Concur:
Chief J u s t i c e