No. 3 3 - 3 6 8
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
ILENE F. IIILT,
Petitioner and Respondent,
and
REESE A. IIILT,
Respondent and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Iionorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Timothy J. O'Hare, Lewistown, Montana
For Respondent :
Leonard H. McKinney, Lewistown, Montana
--------
Submitted on Briefs: December 22, 1983
Decided: April 5 , 1984
Filed:
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
In its amended decree the Fergus County District Court
awarded assets totalin? $285,214.41 in value to Ilene F. Hilt
(wife) and awarded Reese A. Hilt (husband) assets totaling
$283,170.59 in value. In addition the court awarded the wife
maintenance in the amount of $800.00 per month, which the
husband contests. We affirm the District Court.
The central issue is whether an award of maintenance in
the amount of 5800 .OO per month to the wj-fe is proper under
sections 40-4-202 and -203, MCA.
The undisputed findings of fact on the part of the
district court establish that the parties had been married 33
years; that there are four adult children of the marriage;
that the husband ~ ~ 0 r k for Peavey Company, also owns and
s
operates an insurance agency, and is a 1./2 partner in another
insurance agency; that the wife has been an excellent
homemaker and has cared for and raised the children; that at
various times during the marriage, the wife has worked at
jobs, assisted the husband in keeping books at his place of
work and keeping books for his insurance agency; that the
wife has entertained, socialized and made contact with
clients of the husband; that the earnings of the parties during
the marriage were used for marital purposes; through the
industry of the parties, they have amassed substantial
assets; and that it is proper that the accumulated property
be divided equitably between the parties.
The husband contends that the district court failed to
determine the wife's earning capacity from appropriate
employment and did not consider such wages in determining her
maintenance. In considering this contention as well as other
contentions on the part of the husband, it is important to
consider the findings as determined by the district court..
In particular, finding of fact 1 6 , as a-mended, provided:
"The division of the marital property herein made
is reasonable because it distributes a considerable
amount of income-earning and tax-free securities to
the Petitioner [wife], thereby enabling her to
acquire additional capital assets in the future, in
keeping with the practices of the parties in the
past.
"The division of the marital property is further
reasonable because it distributes to the Respondent
[husband] the two insurance agencies he has owned
and operated and which give him, with his
employment for Peavey, Inc., an income of
approximately $60,000.00 per year, thereby enabling
him to acquire additional capital assets. He will
have retirement income upon his retirement,
whenever that occurs.
"The parties were married to each other for 33
years and the division of the marital property
herein is designed to equalize, within reason, the
comparable income and future capital
a-sset-acquiring possibilities of the parties.
Given such equalization, on the basis of past
practices of the parties and their level of living,
it is the finding of this Court that the Petitioner
lacks sufficient property to provide for her
reasonable needs. It is also the finding of this
Court that the Petitioner is fifty years of age,
has no specialized training or education, other
than having worked with her husband in the family
business as bookkeeper and as a consultant and
social helper in meeting and developing friends and
potential and actual customers; these in addition
to her participation in the family's life as wife
and mother. The Petitioner suffers from a very
acute allergy to just about everything. This
seriously restricts her ability to participate in
many activities, predictably including further
education and employment.
"It is therefore the finding of this Court that the
Petitioner is unable to support herself through
appropriate employment, while the Respondent is
able, with his business income, to provide support
and maintenance to and for the Petitioner."
We have reviewed the transcript and find there is
substantial evidence to support the finding of fact 16, as
set forth above. The evidence shows an absence of training
and education, limited work experience, and acute health
problems of the wife, all of which seriously restrict her
ability to pa-rticipate in many activities including further
education and employment. The transcript shows that the wife
made a serious a.nd sustained effort to obtain employment by
registering at various places of business, hospitals, and
employment agencies. She was unsuccessful in obtaining such
employment. The record further indicates that she will have
a hard time finding any employment in the future, even if her
health would allow her to work. "Findings of fact shall not
be set aside unless clearly erroneous." Rule 52(a),
P4.R.Civ.P. Finding substantial evidence to support the
finding of the d.istrict court regarding the wife's lack of
earning capacity and employabil-ity,we affirm amended finding
of fact 16.
The husband further contends that the district court
determine6 the wife's need for maintenance from the
attorney's motion to amend rather than from the trial
evid-ence. Amended finding of fact 17 provided:
"That the standard of living achieved by the
parties would cost the Petitioner $1,600.00 per
month. The sum of $800.00 per month is a
reasonable amount for Respondent to pay Petitioner
as her maintenance and support during her life or
until she shall remarry. Respondent's income from
his business, his employment and his retirement
income are sufficient to enable him to pay $800.00
per month support and maintenance to Petitioner.''
Husband argues that because a portion of the testimony
on the part of the wife established a monthly requirement of
$1,283.00, nothing above that amount should have been
considered by the court. This disregards substantial
evidence in the record which shows tha.t the $1. ,283.00 figure
to which the wife testified did not include any provisions
for denta.1 and health insurance and that this standard of
living wa.s lower than that to which she had been accustomed
during the marriage. Again, we find substantial evidence to
support the conclusion on the part of the district court that
maintenance of the standard of living to which the wife had
been accustomed prior to the dissolution of marriage would
require $1,600.00 per month.
Was the award of $800.00 per month as maintenance to the
wife proper? This is the principal issue between the
parties. Referring to finding of fact 16, the district court
concluded that the division of the marital property was
designed to equalize, within reason, the comparable income
and future capital asset-acquiring possibilities of the
parties. Neither party contends that the division fa.iled to
accomplish such an equalization. This was the initial step
ta.ken by the court.
Following the equalization, the district court
considered the issue of rnaint.ena.nce. The court conclud.ed
that the wife lacked sufficient property to pr0vid.e for her
reasonable needs in order to obtain a standard of living
equal to tha.t prior to dissolution of marriage, and that. the
wife was therefore entitled to an award of maintenance. The
husband disagrees with this conclusion.
The record. discloses extensive evidence with rega.rd.to
asset values and earnings, some of which is contradictory in
na.
ture . It is the duty of the trial judge to resolve such
conflicts. Cameron v. Cameron (1978), 179 Mont. 219, 227,
The husband argues that the controlling case is In re
the Marriage of Johnsrud (1977), 181 Mont. 544, 572 P.2d 902.
In Johnsrud this Court stated:
"The comments of the code commissi.oners to these
statutes indicate the property division statute and
maintenance statute must be read together because
they have a dual purpose. In 9 Uniform Law
Annotated, Marriage and Divorce Act, S308, p. 494,
the comment under the maintenance section states in
pa.rt:
11 I ...The dual intention of this secti-on
[maintenanceI a.nd Section 307 [property
disposition] is to encourage the court to provid-e
for the financial needs of the spouses by property
disposition rather than by an a-ward of maintenance.
Only if the ava.ilable property is insufficient for
that purpose and if the spouse who seeks
maintenance is unable to secure employment
appropriate to his skills and interests or is
occupied with child care may an award of
maintenance be ordered.'" 181 Mont. at 549, 572
P.2d at 905.
We concluded that:
"[Lit is the first duty of the District Court to
equitably distribute the marital property. After
the court makes a decision on property division,
then any additional needs of a spouse petitioning
for maintenance should be readily apparent. If
these future needs cannot be met by a property
distribution, then a petitioning spouse is entitled
to maintenance if he fulfil.1~ the requirements of
section 48-322, R..C.M. 1947." 181 Mont. at 549-50,
572 P.2d at 905.
The district court in Johnsrud failed to support its
property distribution with appropriate findings The
fi.ndings were insufficient to form an adequate basis for
review. Ahsent adequate findinqs and an equitable property
distribution, this Court could not reach the secondary matter
of maintenance. As a result, the judgment was vacated and
the case was remanded for redetermination of the marital
assets. The Johnsrud opinion did not address the question at
issue here: Whether available property was sufficient to
provide for the wife's financial needs, without an additional
award of maintenance.
Sections 40-4-202 and -203 MCA, pertaining to division
of property and maintenance, must be considered together. As
noted in Johnsrud, an equitable distribution of property is a
condition precedent to a.n award of maintenance.
The equitable apportionment requirement of section
40-4-202, MCA is:
"In a proceeding for dissolution of a.
marriage, ...the court ... shall . ..
finally
equitably apportion between the parties the
property and assets belonging to either or both,
... In making apportionment, the court shall
consider the d.uration of the marriage . .
. ; the
a-ge, health, station, occupation, amount and
sources of income, vocational skills,
employability, estate, liabilities, and needs of
each of the parties; . . .
whether the
apportionment is in lieu of or in addition to
maintenance; and the opportunity of each for future
acquisition of capital assets and income. The
court shall also consider the contribution or
dissipation of value of the respective estates and
the contribution of a spouse as a homemaker or to
the family unit . . .."
On the question of maintenance, section 40-4-203, MCA
provides in pertinent part:
"(1) In a proceeding for dissolution of
marriage ... 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 himse1.f through
appropriate employment ...
"(2) The maintenance order shall be in such
amounts and for such periods of time as the court
deems just . .
. 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 . . .
(b) the time necessary to acquire sufficient
education or training to enable the party seeking
maintenance to find appropriate employment;
(c) the standard of living established during
the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional
condition of the spouse seeking maintenance; and
(f) the ability of the spouse for whom
maintenance is sought to meet his needs while
meeting those of the spouse seeking maintenance."
A substantial balancing of varying concepts is required
on the part of the district court. The fa.ctua1 record here
discloses that the district court took into consideration all
of the statutorily required elements.
This case is unusual in that there is substantial
property of income-producing capacity, which has been
distributed to the wife. As an offset, similar
income-producing property was distributed to the husband. We
recognize that it may be unusual to require maintenance where
the property distributed to the wife has a value of
approximately $285,000. However, "each case must be looked
at individually, with an eye to its unique circumstances."
In re Marriage of Aanenson (1979), 183 Mont. 229, 234, 598
P.2d 11-20, 1123.
Here, the district court thoroughly explained the need
for its award of maintenance to the wife, in terms consistent
with section 40-4-203, MCA. After formulating an equitable
division of property, pursuant to section 40-4-202, MCA, the
court specifically found that the wife lacked sufficient
property to provide for her reasonable needs, even after the
distribution of income-producing assets to each of the
parties. The court also found that the wife is unable to
support herself and tha-t the standard of living achieved hy
the parties would cost the wife $1,600.00 per month.
It is inappropriate for this Court to retry questions of
fact. Where the trial court's division of property and. award
of maintenance are supported by a-dequate findings and
substantial evidence, they will not be disturbed. In re
Marriage of Jorgensen (1979), 180 Mont. 294, 304, 590 P. 2d
606, 612; In re Marriage of Aanenson (1979), 183 Mont. 229,
235, 598 P.2d 1120, 1123. We conclude that there is
substantia-levidence to support the distribution of property
and the maintenance award.
We therefore affirm the decree of the District Court.
We Concur: