No. 84-46
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
.
LAWRENCE C LOEGERING,
Petitioner and Appellant,
and
LOUISE M. LOEGERING ,
Respondent and Respondent.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. W. Heineman, Wibaux, Montana
For Respondent :
W. Gene Theroux, Wolf Point, Flontana
-
Submitted on Briefs: July 10, 1984
Decided: October 12, 1934
Filed:
-
Clerk
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e G p i n i o n of
t h e Court.
T h i s is a n a p p e a l from t h e f i n a l judgment e n t e r e d in
t h e D i s t r i c t Court of t h e F i f t e e n t h J u d i c i a l D i s t r i c t , S t a t e
of Xontana, i n and for t h e County of Roosevelt, dividing
t h e m a r i t a l a s s e t s of t h e p a r t i e s . The h u s b a n d a p p e a l s .
The parties were married on January 23, 1950, at
Poplar, Montana. There were four children born of the
marriage, w i t h t h e y o u n g e s t g r a d u a t i n g from h i g h s c h o o l i n
May, 1 9 8 1 , and a t t a i n i n g t h e a g e o f m a j o r i t y i n J u n e , 1 9 8 1 .
I n September of 1981, L a r r y L o e g e r i n g , p e t i t i o n e d f o r
divorce in the District Court of the Seventh Judicial
District, in Richland County, Montana. Louise Loegering
f i l e d a motion t o d i s m i s s and t o change venue t o t h e c o u n t y
o f h e r r e s i d e n c e , R o o s e v e l t C o u n t y , Montana. The v e n u e was
ordered t o be t r a n s f e r r e d and t h e a c t i o n was f i l e d i n t h e
F i f t e e n t h J u d i c i a l D i s t r i c t , R o o s e v e l t C o u n t y a t Wolf P o i n t ,
o n November 9, 1981. Louise f i l e d a motion f o r temporary
maintenance on November 27, 1981, requesting a hearing
before the District Court on December 8, 1981, on said
mot i o n .
On December 8, 1981, the District Court heard the
m o t i o n f o r t e m p o r a r y m a i n t e n a n c e and c o u n s e l f o r t h e p a r t i e s
s t i p u l a t e d t h a t s a i d h e a r i n g would a l s o b e f o r t h e p u r p o s e
of hearing evidence on the dissolution of the marriage
between the parties. The C o u r t o r d e r e d $1,200 per month
t e m p o r a r y m a i n t e n a n c e t o be p a i d by Lawrence t o L o u i s e u n t i l
t h e m a r i t a l e s t a t e had b e e n d i v i d e d b e t w e e n t h e p a r t i e s .
The District Court entered its findings of fact,
c o n c l u s i o n s of l a w and d e c r e e o f d i s s o l u t i o n i n t h i s m a t t e r
on J a n u a r y 1 5 , 1982, r e s e r v i n g t h e d i v i s i o n of the marital
property f o r a l a t e r d a t e convenient t o t h e p a r t i e s .
A h e a r i n g was h e l d o n the d i v i s i o n of the property
April 1 1983, a t which time both parties appeared and
presented t h e i r evidence. On O c t o b e r 3 1 , 1 9 8 3 , t h e D i s t r i c t
Court rendered its f i n d i n g s of f a c t , c o n c l u s i o n s o f law and
d i v i s i o n of m a r i t a l property. Larry f i l e d a motion f o r a
new trial and a motion to alter and amend judgment upon
w h i c h a h e a r i n g was h e l d o n December 13, 1983. The c o u r t
i s s u e d i t s amendment t o t h e f i n d i n g s o f f a c t a n d c o n c l u s i o n s
o f law, from which L a r r y h a s appealed.
Larry has worked many jobs, generally oil field
related. H i s l o n g e s t employment was from 1957 t o 1975 w i t h
Nurphy O i l Company. I n 1975, L a r r y and Louise purchased a
hardware store i n Poplar, Montana. Larry worked in the
s t o r e f o r two a n d o n e - h a l f years. From 1 9 7 5 u n t i l t h e s t o r e
c l o s e d i n May o f 1 9 8 2 , L o u i s e a l s o w o r k e d i n t h e s t o r e a n d
kept t h e books f o r t h e b u s i n e s s . At the t i m e the parties
purchased t h e s t o r e , t h e y borrowed $45,000 from t h e T r a d e r ' s
State Bank at Poplar, Montana, where there is still a
balance due and owing of $18,239.82, with interest from
September 15, 1982. An operating l o a n was taken out by
L a r r y a n d L o u i s e a t T r a d e r ' s S t a t e Bank o n A p r i l 2 2 , 1981,
in t h e amount o f $19,706 o f which t h e r e is an o u t s t a n d i n g
b a l a n c e owed o f $ 5 , 5 7 8 . 5 6 , w i t h i n t e r e s t f r o m May 5 , 1983.
There i s a b a l a c e due on t h e s t o r e p u r c h a s e o f $30,000 p l u s
i n t e r e s t of $2,400. Other b i l l s outstanding on t h e s t o r e
a r e : p r o p e r t y t a x e s f o r t h e y e a r 1982 o f $1,002.83; property
taxes for the year 1983 of approximately $1,000; and
i n s u r a n c e premiums o f $1,220.
The t o t a l o u t s t a n d i n g i n d e b t e d n e s s o f t h e P o p l a r s t o r e
was i n e x c e s s o f $ 5 9 , 4 2 1 . 2 1 . L a r r y t e s t i f i e d t h e s t o r e may
b e worth $15,000 t o $20,000. Larry t e s t i f i e d t h a t he t o l d
h i s s o n and L o u i s e t o c l o s e t h e s t o r e and l e f t i t up t o them
t o sell the i n v e n t o r y a n d a p p l y t h e money o n o b l i g a t i o n s .
Louise t e s t i f i e d t h a t she attempted t o sell t h e s t o r e , b u t
no one wanted it.
Larry and Louise discussed Louise moving to Sidney
after their youngest daughter s r a d u a t e d from h i g h school.
Bowever, L a r r y r e q u e s t e d a s e p a r a t i o n from L o u i s e i n J a n u a r y
of 1981, so Louise remained in Poplar. The testimony
r e v e a l e d , s i n c e 1 9 7 7 when L a r r y r e e n t e r e d o i l f i e l d w o r k , h e
p a i d L o u i s e $1,200 p e r month from which s h e m a i n t a i n e d t h e
home i n P o p l a r f o r h e r s e l f a n d m i n o r c h i l d r e n , made p a y m e n t s
on t h e house mortgage, a u t o m o b i l e and h e a l t h insurance of
the parties. Since January 1, 1 9 8 2 , she has received the
sum o f $1,200 per m o n t h u n d e r the order of the court for
temporary maintenance.
L o u i s e a t t h e time o f t h e h e a r i n g was f i f t y - s i x years
of age. She h a s r a i s e d f o u r c h i l d e n w i t h t h e y o u n g e s t c h i l d
graduating from h i g h school i n May o f 1981. She h a s an
eighth grade education. She has no other training or
schooling. Although not a trained bookeeper, Louise
maintained a set of records for the family business and
waited on customers in the s t o r e from 1975 u n t i l June of
1 9 8 2 , when t h e s t o r e was c l o s e d . She is p r e s e n t l y employed
3s a c l e r k i n B o u l d s Drug o f P o p l a r , M o n t a n a , e a r n i n g $ 3 . 8 5
per hour f o r a thirty-seven a n d a h a l f h o u r work week. Her
take-home p a y e q u a l s a p p r o x i m a t e l y $ 5 0 0 p e r month.
Larry is fifty-seven years of age and claims poor
health because of high blood pressure. In 1977, Larry moved
to Sidney, Montana, to become more available for oil field
work. In January of 1981, he commenced work as an
independent oil consultant. He transferred his consulting
service to a wholly-owned corporation, L. C. Loegering, Inc.
The income of Larry from operating as an oil field
consultant for the years 1979, 1980, 1981 and 1982 are as
follows: gross: $54,619.67 and net: $51,570.51 of which
approximately $l6,OOO was paid to federal and state income
tax; gross: $73,535.58; and net: $67,518.01, of which
approximately $25,000 was paid to federal and state income
tax; gross: $104,609; and net: $65,887 of which
approximately $25,000 was paid to federal and state income
tax; net: $94,292 of which approximately $33,000 was paid to
federal and state income tax.
Larry is now employed by Louisiana Land and
Exploration as a consultant with an annual salary of $50,000
and fringe benefits including life insurance, medical
insurance and a pension plan. He also possesses a pension
plan from Murphy Oil Corporation upon which no value is
placed. Larry has an operating loss carry-over from the
1982 operation of the hardware store. The operating loss
carry-over amounts to $45,535, which was applied to his 1982
personal income tax return. This amount at the average
federal tax imposed upon him of 29.30% in 1982 realized a
savings to him of $13,342, none of which he shared with
Louise.
The trial court's findings reveal at the time of the
marriage dissolution in January of 1.982, the marital assets
of the parties included:
house i n Poplar: $57,000.00
corporation accounts
receivable: $60,000.00
o i l well : $7,000.00
corporation pension plan: $13,665.00
f u r n i t u r e i n Sidney: $4,000.00
automobile: $4,000.00
Suburban: $9,400.00
E l Camino: ~$6,500.00
jewelry: $2,000.00
t r a i l e r deck: $2,390.00
new w i f e ' s v e h i c l e : $3,400.00
o f f i c e equipment: $2,000.00
s t o r e building i n Poplar: $25,000.00
p e r s o n a l bank a c c o u n t : $2,779.92
c o r p o r a t i o n bank a c c o u n t : $9,000.00
Murphy C o r p o r a t i o n r e t i r e m e n t : (husband
unable t o place a value)
stock i n corporation: (no value given)
The t r a n s c r i p t r e v e a l s t h e l i a b i l i t i e s a s f o l l o w s :
car l o a n :
house loan:
business loan:
store contract:
T h e t r i a l c o u r t made n o d e t e r m i n a t i o n of t h e n e t v a l u e of
t h e marital e s t a t e i n its o r i g i n a l f i n d i n g s , b u t upon m o t i o n
t o a m e n d , m o d i f y a n d f o r a new t r i a l , t h e c o u r t o n December
13, 1983, found t h a t m a r i t a l n e t worth of t h e p a r t i e s was
$150,000 w i t h $100,000 t o L a r r y and $50,000 t o L o u i s e .
Prior t o t h e d i s s o l u t i o n of marriage, L a r r y expended
t h e f o l l o w i n g sums f o r h i s f i a n c e e w i t h o u t t h e knowledge o r
c o n s e n t of Louise: $2,000 f o r jewelry; $2,390 f o r a deck on
h e r t r a i l e r ; and $3,400 f o r an automobile.
L a r r y ' s standard of l i v i n g p r i o r t o t h e d i s s o l u t i o n of
m a r r i a g e was q u i t e h i g h . H e w i t h d r e w $2,500 p e r month f r o m
the Richland Bank and $2,500 per month from the Montana
Bank. When L a r r y r e e n t e r e d t h e o i l f i e l d c o n s u l t i n g w o r k i n
1977, h e e s t a b l i s h e d a s e c o n d h o u s e h o l d a t S i d n e y , Montana.
Larry purchased a house for $143,000 in which he has
$80,000 e q u i t y . He a l s o r e t a i n s a corporate pension plan i n
t h e a m o u n t of $ 1 3 , 6 6 5 a n d h e i n v e s t e d i n a n o i l w e l l i n t h e
amount of $7,000. In addition, Larry has a personal bank
account of $2,779.92, and his corporation, L.C. Loeger ing,
Inc., has a bank account of $9,000. He also owns an El
Camino automobile valued at $6,500 and a Suburban automobile
valued at $9,400.
Louise received the following assets from the
dissolution of marriage: the house in Poplar valued at
$55,000, an automobile worth $4,800 and $10,000 in cash.
Louise was to pay the debt on the house of $5,762.84 and the
debt on the Oldsmobile of $918.64. The net award to Louise
is $65,618.52 plus monthly maintenance of $1,000 per month.
Larry received the following marital property: the
store in Poplar subject to the foll.owing bills: unpaid
purchase balance of $30,000, unpaid interest of $2,400,
unpaid insurance $1,220, unpaid taxes $1,002 and notes to
Poplar Bank $23,808.38. The total loss on the Poplar store
property was $43,430. Larry was awarded the value of the
assets purchased from his earnings after separation but
prior to the dissolutionment. Jewelry for fiancee, $2,000,
deck for fiancee's trailer $2,390, car payment for fiancee
$3,400, and one-fourth of the retirement account $3,416.25.
Larry also received the following property he acquired with
his earnings after the separation: the home in Sidney worth
$80,000, the El Camino valued at $6,500, accounts receivable
of $12,000, cash on hand $2,779, corporation cash $9,000 and
three-fourths of retirement account worth $10,248.75. The
husband received more than one-half of the marital assets.
The District Court ordered Larry to pay Louise the sum
of $1,000 per month for her support, care and maintenance
until she reached the age of 65 years. The court also
ordered Larry to pay the sum of $2,500 toward Louise's
attorney fees incurred in the dissolution of marriage and
the division of the marital property.
The appellant makes the following challenges to the
District Court's final disposition of marital assets:
(1) Whether the trial court committed error in failing
to determine net worth at time of separation or
dissolutionment.
(2) Whether the earnings of appellant after the
separation of the parties should not be included in the
marital estate .
(3) Whether the findings of the trial court support
the award of maintenance.
(4) Whether the findings of the trial court support
the award of attorney fees.
Appellant first contends that the trial court
committed error in failing to consider a date for
determination of the marital property. As a result, any net
worth determination is in error.
We have steadfastly adhered to the rule pronounced by
this Court, "A proper disposition of marital property in a
dissolution proceeding requires a finding of the net worth
of the parties at or near the time of dissolution." In re
the Marriage of Beck v. Beck (Mont. 1983), 661 P.2d 1282, 40
St.Rep. 565; In re the Marriage of Hamilton v. Hamilton
(Mont. 1980), 607 P.2d 102, 37 St.Rep. 247. The reasons for
the rule are obvious. "The reasonableness of such an award
can only be determined after there has been an equitable
division of the marital estate . . . " In Re Marriage of
Kramer (1978), 177 Mont. 61, 580 P.2d 439; it serves to
determine value of property when "the parties themselves
c a n n o t a g r e e a s t o what t h e c o u r t found t h e i r n e t worth t o
be." V i v i a n v. V i v i a n ( 1 9 7 8 ) , 1 7 8 Mont. 3 4 1 , 583 P.2d 1072;
". . . s u c h a d e t e r m i n a t i o n of n e t worth provides a b a s i s
f o r t h i s Court t o conduct meaningful review .. . I' In re
t h e M a r r i a g e of Hamilton v. H a m i l t o n (Mont. 1 9 8 0 ) , 607 P.2d
1 0 2 , 37 S t . R e p . 247.
H e r e t h e r e was a l a p s e o f f i f t e e n months between t h e
date of dissolution and the hearing on the property
distribution. In December of 1981, the court awarded
temporary maintenance for Louise, and g r a n t e d a d e c r e e o f
d i s s o l u t i o n on J a n u a r y 1 5 , 1 9 8 2 . A t that time, the counsel
of both parties desired that a hearing for property and
m a i n t e n a n c e award be h e l d a t a l a t e r d a t e . T h e c o u r t made
written findings and ordered that a postponement of the
p r o p e r t y d i s p o s i t i o n be a t a t i m e m u t u a l l y a g r e e a b l e t o both
counsel. On April 16, 1983, a hearing was held on the
property distribution. Although no determination of net
v a l u e was made in the t r i a l court's original findings, net
w o r t h was e s t a b l i s h e d on December 1 3 , 1 9 8 3 .
We have recognized that the District Court may
postpone d i s p o s i t i o n of the marital property, i n a hearing
separate from d i s s o l u t i o n m e n t . "The interests of justice
and judicial economy are best served by giving District
C o u r t s broad d i s c r e t i o n i n t h e conduct of t h e i r p r o c e e d i n g s
and the severance of the various e l e m e n t s of dissolution
decrees . . . " Miller v. Miller (Mont. 1 9 8 0 ) , 616 P.2d
313, 318, 37 S t . R e p . 1523, 1528. However, a postponement
should not be a routine matter. In Re the Marriage of
K r a u s e (Mont. 1 9 8 2 ) , 6 5 4 P.2d 9 6 3 , 39 S t . R e p . 1809.
The f a c t s of t h i s c a s e a r e u n p r e c e d e n t e d . T h e r e were
no marital assets that fluctuated in value during the
f i f t e e n month p e r i o d . No o i l s t o c k i n v e s t m e n t s w e r e made a s
was the case i n Krause, supra. No m a j o r stock or life
i n s u r a n c e p o l i c i e s w e r e i n v o l v e d , a s was t h e s i t u a t i o n i n I n
r e t h e M a r r i a g e of B e c k v . Beck (Mont. 1 9 8 3 ) , 6 6 1 P.2d 1282,
40 St.Rep. 565. The r e c o r d r e v e a l s t h e a s s e t s t h a t e x i s t e d
on t h e d a t e of d i s s o l u t i o n w e r e unchanged i n c h a r a c t e r a n d
value, a s on t h e d a y t h e p r o p e r t y d i s p o s i t i o n h e a r i n g was
held. Even t h o u g h a p p e l l a n t a c q u i r e d a d d i t i o n a l a s s e t s a s a
result of his earnings, he has retained those assets.
F u r t h e r , a p p e l l a n t unequivocably s t i p u l a t e d t o a l a t e r d a t e
f o r t h e p r o p e r t y d i s t r i b u t i o n h e a r i n g , and i t was a p p e l l a n t ,
t h e moving p a r t y i n t h i s e n t i r e m a t t e r , who p e t i t i o n e d t h e
t r i a l court for t h e property d i s t r i b u t i o n hearing fifteen
months later. These facts taken together do not
substantiate reversible error. A s we s t a t e d i n Rrause, "we
do not hold that an unwarranted delay will result in a
f a u l t y D i s t r i c t C o u r t judgment."
We hold in this unique and rare circumstance, the
trial court's failure t o value the marital estate a t the
t i m e of d i s s o l u t i o n , a t b e s t , c o n s t i t u t e s h a r m l e s s e r r o r .
As the second issue, appellant alleges that his
e a r n i n g s a f t e r t h e s e p a r a t i o n should n o t have been i n c l u d e d
in the marital estate.
The c a s e of In re t h e Marriage of Wagner v. Wagner
(Mont. 1984), 679 P.2d 753, 41 St.Rep. 409, is cited in
support of this contention. There, upon the parties'
separation, the financial status of each party took
divergent courses. The wife established herself i n a new
ranching operation without assistance from the husband.
With this basis and loans from her family, she purchased
several parcels of real property and had plans to acquire
additional property. However, the husband's financial
status deteriorated from the date of separation to final
disposition. The husband encumbered the ranch with numerous
loans until his credit was frozen pending final distribution
of marital property. The husband terminated all ranching
operations.
We held that neither the husband's increased financial
obligations, nor the wife's real estate and livestock
purchases should be denominated marital assets. Larry
claims the Wagner decision applies to this situation. He
submits that from the time of the parties' separation, he
was living in Sidney, Montana, without any marital benefits
of his wife. During this time period he worked to establish
his own consulting business, negotiating his own independent
Einancial security. While Louise, he contends, was not
doing a thing.
However, the record and the findings of the trial
court indicate otherwise. The Wagner decision differs
fundamentally from the present case in that here, Louise was
not a highly skilled business person capable of negotiating
her own financial independance. She was a mother of four
children and a housewife. She had no high school or
vocational education. Nor did she possess any marketable
skills. Whereas in Wagner, both parties were partners in
the ranching operation. Both were competent, experienced
and resourceful ranchers. Another difference between the
two cases is the fact that Louise did not unilaterally
encumber the financial stability of the Poplar hardware
store. Rather, the store from its very inception was in
d e b t a n d l o s i n g money. I n 1977, t h e husband l e f t t h e s t o r e
to return to the oil field, leaving h i s wife and son to
manage t h e s t o r e . Larry t e s t i f i e d he told h i s s o n and h i s
w i f e t o c l o s e t h e s t o r e a n d l e f t i t u p t o them t o s e l l t h e
i n v e n t o r y a n d a p p l y t h e money on o b l i g a t i o n s . Furthermore,
t h e p a r t i e s were n o t separated a t the t i m e Larry l e f t t h e
f a m i l y b u s i n e s s t o r e t u r n t o t h e o i l f i e l d s a s was t h e case
in Wagner. In Wagner, the parties established separate
financial operations with the intent to establish separate
and i n d e p e n d e n t c o u r s e s . Whereas h e r e , L o u i s e r a n t h e s t o r e
with her son with the intent to continue it as a family
business.
Appellant cites this Court to precedent involving
valuation of m a r i t a l a s s e t s a t t h e t i m e of s e p a r a t i o n r a t h e r
than the t i m e of dissolution. I n T u r e m a n v. Tureman ( M o n t .
1980), 520 P.2d 1200, 37 St.Rep. 1922, the parties were
separated and the final dissolution decree resulted eight
years later. An agreement was negotiated between the
p a r t i e s a t t h e time o f s e p a r a t i o n w h i c h i n s u b s t a n c e c u t o f f
any r i g h t s t h e w i f e would be e n t i t l e d t o i n t h e husband's
property. That is n o t the situation in this case. In
another case, I n R e M a r r i a g e of S e l l ( M o n t . 1 9 8 1 ) , 630 P . 2 d
222, 38 St.Rep. 956, the trial court's division of the
marital r e s i d e n c e on o t h e r than a 50-50 basis i n favor of
husband r e f l e c t e d a c a r e f u l and c o n s c i e n t i o u s c o n s i d e r a t i o n
of appropriate factors, including f a c t s t h a t although wife
acquired a vested interest in the property she did not
c o n t r i b u t e by work or labor i n improving t h e p r o p e r t y and
she did not reside with the husband during the period in
which the improvements to the property were made.
Both cases lack direct application to the present
matter. No property distribution agreement was ever
negotiated between the parties at the time of separation, as
was the case in Tureman, supra. The record indicates even
after the separation, Louise continued working in the store
which enabled Larry to continue his corporate operation.
Therefore, in reviewing the property division ordered by the
District Court, we hold any determination of the marital
assets at the time of separation would clearly have been
inequitable. This Court has long recognized the broad
discretion the district courts have under Montana law in
distributing marital property. This Court has a limited
scope of appellate review and will not intervene except when
the District Court has departed substantially from the norms
of equity, In Re Marriage of Sell (Mont. 1981), 630 P.2d
222, 38 St.Rep. 956; In Re Marriage of Herron (Mont. 1980),
608 P.2d 97, 37 St.Rep. 387; In Re the Marriage of Jacobson
v. Jacobson (1979), 183 Mont. 517, 600 P.2d 1183.
Appellant next argues that he cannot pay $1,000 a
month for support. Appellant submits that the District
Court committed error in failing to consider the amount
available to Larry after the award of maintenance to Louise.
The standard for review of the District Court's
decision is well settled: "The award made by the District
Court will not be disturbed on appeal unless there has been
a clear abuse of discretion resulting in substantial
injustice." Grenfell v. Grenfell (1979), 182 Mont. 229, 596
P.2d 205, following In Re the Marriage of Brown (1978), 179
Mont. 417, 587 P.2d 361. See also In Re the Marriage of
Levandowski v. Levandowski (Mont. 1981), 630 P.2d 239, 38
St.Rep. 1002. "The test 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 of the circumstances?" In Re the Marriage of
Jacobson v. Jacobson (1979), 183 Mont. 51.7, 521, 600 P.2d
The District Court did not act arbitrarily in
determining the amount of maintenance to Louise. The
hearings were extensive and provided ample opportunity for
counsel of both parties to place on the record evidence
regarding support and maintenance. Under section
40-4-203(1), MCA, maintenance may be awarded if the spouse
seeking maintenance lacks sufficient property to provide for
his reasonable needs and is unable to support himself
through appropriate employment. Section 40-4-203(2), MCA,
requires the court to consider the following prior to
awarding maintenance:
". . . the financial resources of the
party seeking maintenance, including
marital property apportioned to him, and
his ability to meet his needs
independently, . . .
the time necessary
to acquire sufficient education or
training to enable the party seeking
maintenance to find appropriate
employment; ...
the standard of living
. . .
established during the marriage;
the duration of the marriage; the . . .
age and the physical and emotional
condition of the spouse seeking
maintenance; and ...
the ability of the
spouse from whom maintenance is sought to
meet his needs while meeting those of the
spouse seeking maintenance."
The appellant contends the District Court committed
error by failing to consider his needs following the award
of maintenance as dictated by the ruling of In Re the
Marriage of Jorgensen (1979), 180 Mont. 294, 590 P.2d 606.
In Jorgensen we went on to state:
"This case is to be distinguished from
those in which there were marriages of
long standing, and the circumstances were
such that the wife was not able to go out
and successfully compete in the job
market. See, for example, Cromwell v.
Cromwell (1977), 174 Mont. 356, 570 P.2d
1129; and Johnsrud v. Johnsrud (1977),
175 Mont. 117, 572 P.2d 902, 906 where we
said that an award of maintenance is
related only to the needs of the spouse
seeking maintenance."
The long-standing marriage and support situation this
Court had in mind in Cromwell and Johnsrud is present here.
The District Court specifically found in its findings of
fact and conclusions of law that:
". . . petitioner is a skilled oil field
consultant and is an able bodied man
capable of earning large sums of money
from his employment. ..
". . .that petitioner earned sums in the
oil field during the period of time he
was an independent oil field consultant
ranging from $375 per day as testified to
on December 8, 1981, ranging to the sum
of $232,805 for the fiscal year November
1, 1981, and ending October 31, 1982.
Said latter sum was earned under the name
of L.C. Loegering, Inc., and from such
sum the petitioner withdrew $132,752.
". . . that petitioner is now employed by
Louisiana Land and Exploration as a
consultant with an annual salary of
$50,000 per year and fringe benefits
including life insurance, medical
insurance and a pension plan. ..
"
The District Court correspondingly found that the wife
is fifty-six years of age. She lacks sufficient property to
provide for her reasonable needs, is unable to support
herself through appropriate employment. After thirty-two
years of being a wife and mother she does not have
sufficient education or training to find appropriate
employment. The wife testified that her standard of living
was higher prior to dissolution of marriage and appellant
testified that he set her standard of living at $1,200 per
month. The wife has become accustomed to the standard of
living established during the marriage.
The award of $10,000 in cash to Louise lies at the
heart of the husband's argument in this maintenance issue.
He contends if the wife receives the $10,000, she certainly
can pay-off the house and car indebtedness of $6,680, which
would reduce her monthly needs. The District Court provided
the amount of $10,000 as a reasonable sum to be paid by the
husband in reimbursement for expenditures made by him prior
to the dissolution of marriage without the knowledge or
consent of the wife. Such sums expended from the marital
estate include: $2,000 for jewelry for his fiancee; $2,390
for a deck for his fiancee's home; and S3,400 for his
fiancee's vehicle. The award of $10,000 to the wife was
proper and equitable.
Section 40-4-110, MCA, controls the district courts
concerning the issue of attorney fees. The statute vests in
the district court the discretion to award costs and
attorney fees in a dissolution proceeding. In Re the
Narriage of Brown (1978), 179 Mont. 417, 587 P.2d 361.
Appellant's attack on the award of attorney fees is premised
upon the financial inability of appellant to pay. The
District Court found that Louise lacked sufficient property
t o p r o v i d e f o r h e r r e a s o n a b l e n e e d s a n d t h a t s h e was u n a b l e
to support herself without a maintenance award. The
D i s t r i c t C o u r t made a f i n d i n g t h a t t h e w i f e d o e s n o t p o s s e s s
s u f f i c i e n t f u n d s w i t h which t o pay h e r a t t o r n e y f e e s . Since
t h e r e a s o n a b l e n e s s o f a t t o r n e y f e e s were n e v e r q u e s t i o n e d b y
the husband and was accepted by the District Court as
reasonable, we uphold the award of attorney fees to the
wife.
T h e j u d g m e n t o f t h e D i s t r i c t C o u r t is a f f i r m e d .
W e concur:
1
Chief ~ u s t i c e * \