No. 53-432
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
IN RE THE MARRIAGE OF
FRED L. THOMPSON,
Petitioner and Appellant,
and
ANN W. TIIOMPSON,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Iionorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Landoe, Brown, Planalp, Kornmers & Lineberger;
Gene I. Brown, Bozeman, Montana
For Respondent:
Nash & Nash; Michael M. Nash, Bozeman, Montana
Submitted on Briefs: December 1, 1983
Decided: February 9, 1984
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This is an appeal in a domestic relations case arising
in the District Court of the Eighteenth Judicial District in
and for the county of Gallatin.
The parties to this marriage, Fred and Ann Thompson,
were married for the second time on August 24, 1975. Their
previous marriage had lasted approximately eleven years and
resulted in a divorce in 1973. The parties had only been
married to each other, and three children were born of their
marriages, namely Wendy, born in 1965, Scott, born in 1968
and Chris born in 1978.
The parties separated on August 27, 1981, after living
several years in West Yellowstone, Montana. Respondent and
the children moved to Spokane, Washington where respondent
attended graduate school at Whitworth College, and at the
time of the hearing was within several months of obtaining
her masters degree in education. She was employed at that
time as a school teacher in the Spokane Public School
System.
Upon going to Spokane in August of 1981, respondent,
who had previously taught school there, was unable to get a
job teaching school so she went to work as a receptionist at
a medical lab and attended graduate school at night. Her
earnings at the medical lab were approximately $800 per
month. This figure included money she received from
appellant as partial support payments for their children,
who were with her in Spokane. During this time while
working and attending school she testified she received
approximately $5,000 from her parents which went to support
her family and help pay for her education costs.
On January 6, 1983, respondent commenced employment as
a school teacher with the Spokane Public School System as a
teacher of the fifth grade. Her approximate gross annual
income was $20,000, and her net take-home pay amounted to
$1,056.72 per month. In addition she testified that after
several months in the school system, she would be entitled
to participate in the medical plan offered through the
school system, and that she had delayed medical treatment
for herself and the children during this period due to the
fact that there was no money available for this purpose.
Respondent testified that her estimated current monthly
expenses were $1,630 and as long as she was attending
college she occupied student quarters which were
considerably cheaper than that which she could obtain in the
community and that as soon as she graduated in May of 1983,
she would have to leave campus housing to lease a home in
Spokane at considerably greater cost. Respondent estimated
that she had an anticipated deficit of approximately $897
per month in meeting her personal and the childrens' monthly
expenses.
Appellant at the time of the hearing, was 41 years
old, had two years of college training, and was in good
health. Since the separation of the parties he has resided
in Casper, Wyoming, where he is employed as a real estate
salesman. He also lives and works out of West Yellowstone,
Montana. The home that the parties own in West Yellowstone
has an approximate value of $110,000 with a considerable
indebtedness against the same, and appellant testified that
the property was up for sale, but there was not much of a
market for a home of that value in West Yellowstone.
The testimony of both parties indicates that not only
in West Yellowstone where they lived for three years, but in
Wyoming and Utah, they had established a rather high
standard of living. This turned out to be based upon
appellant's ability to borrow considerable sums of money
from banks and other lending institutions without putting up
much security. Appellant estimated that his income for the
past two years was in the vicinity of $28,000 per year, but
respondent's estimate of his income was closer to $60,000.
This estimate by the respondent was based upon statements
that he had made to her during the period, and her knowledge
of his capacity to earn a substantial income in the sales
field.
At the time of the hearing the District Court found
the parties' assets consisted of the family home, equity in
a storage business in West Yellowstone, respondent's
automobile, household furnishings and personal effects.
The District Court issued its findings of fact and
conclusions of law, and directed appellant to pay respondent
the sum of $500 per month for her maintenance and support
until respondent dies, remarries, or July 5, 1993, whichever
occurs first. In addition the court ordered appellant to
pay the sum of $200 per month per child for the two minor
children until they reach the age of majority. The Court
also ordered the residence owned by the parties be sold and
the joint obligations paid out of the net proceeds, with the
remainder to be divided equally between the parties. From
these findings of fact and conclusions of law and judgment
appellant appeals.
Two issues are presented for our consideration:
(1) Did the District Court properly follow the
statutory requirements in establishing an award for spousal
maintenance?
(2) Is the amount of the award for maintenance and the
time frame imposed excessive?
The first issue concerns awarding respondent spousal
support in the sum of $500 per month upon the previously
noted conditions. Appellant argues that under Section
40-4-203(1), MCA the trial court failed to follow the
conditions set forth in considering the award of
maintenance. Section 40-4-203(1), MCA provides:
"In a proceeding for dissolution of
marriage or legal separation or a
proceeding for maintenance following
dissolution of the marriage by a court
which lacked personal jurisdiction over
the absent spouse, 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 himself through
appropriate employment or is the
custodian of a child whose condition or
circumstances make it appropriate that
the custodian not be required to seek
employment outside the home."
Arguing that maintenance is not favored, and that the
amount is excessive, appellant contends that the court did
not follow the statutory requirements set forth in the above
statute.
The standard of review of a district court ruling is
set forth in our rule 52(a) M.R.Civ.P., as follows:
"Findings of fact shall not be set aside
unless clearly erroneous, and due regard
shall be given to the opportunity of the
trial court to judge the credibility of
the witnesses. If
An examination of the record indicates that the trial
court was called upon to judge the credibility of appellant.
He appeared at the divorce proceedings alleging that he did
not want the divorce, even though he had filed for it. His
wheeling and dealing operations over a number of years,
borrowing from various financial institutions putting up
little security, raised considerable questions about his
credibility. He failed to bring with him the papers
necessary to substantiate much of his testimony casting a
shadow of doubt over his story. For example, on direct
examination he was unable to give a definite answer of his
annual salary. He alleged that his employer's bookeeper had
died of a heart attack and those records were not available
for a period of years including the past three where he had
not filed any income tax returns.
In addition it is interesting to note that after the
second marriage respondent sold a house in Spokane and
deposited somewhere between $12,000 and $14,000 in a bank in
Ogden, Utah where appellant was in the auto business. The
undisputed testimony of respondent is that appellant somehow
got $12,000 of that money out of the bank to finance a
flooring loan on his automobile business, and that she was
unaware at the time that he had used the money in that
manner. In addition, the trial court heard appellant's
testimony of how he handled his financial operations in such
a manner that not only did his wife lose money but it
appeared that even his own mother lost money. Furthermore,
practically every financial institution that he dealt with,
as many as five or six, holds paper that has little or no
value. The r e c o r d l e a v e s no q u e s t i o n t h a t t h e a b o v e a m o u n t s
w e r e t a k e n from t h e w i f e , and i n c o n s i d e r i n g how t o h a n d l e
t h i s matter, the trial c o u r t o b v i o u s l y made a n effort to
recompense h e r f o r t h a t l o s s .
W e n o t e d i n Kowis v. Kowis (Mont. 1 9 8 3 ) 658 P.2d 1084,
40 S t . R e p . 1 4 9 , c i t i n g Cameron v . Cameron ( 1 9 7 8 ) 1 7 9 Mont.
219, 587 P.2d 9 3 9 , t h e f o l l o w i n g :
"The s c o p e o f t h i s C o u r t ' s r e v i e w when
c o n s i d e r i n g t h e f i n d i n g s and c o n c l u s i o n s
of a t r i a l c o u r t s i t t i n g without a j u r y
i s c l e a r and w e l l s e t t l e d i n Montana. A
b r i e f c o n s i d e r a t i o n of t h o s e r u l e s i s
appropriate a t t h i s point.
"'This Court's function i n reviewing
f i n d i n g s of f a c t i n a c i v i l a c t i o n t r i e d
by t h e d i s t r i c t c o u r t w i t h o u t a j u r y i s
n o t t o s u b s t i t u t e i t s judgment i n p l a c e
of t h e t r i e r o f f a c t s b u t r a t h e r i t i s
"confined t o determining whether t h e r e is
s u b s t a n t i a l c r e d i b l e evidence t o support"
t h e f i n d i n g s of f a c t and c o n c l u s i o n s of
law. ' ( C i t a t i o n s o m i t t e d )
" A l t h o u g h c o n f l i c t s may e x i s t i n t h e
e v i d e n c e p r e s e n t e d , it i s t h e d u t y of t h e
t r i a l judge t o r e s o l v e such c o n f l i c t s .
H i s f i n d i n g s w i l l n o t be d i s t u r b e d on
appeal where they are based on
s u b s t a n t i a l though c o n f l i c t i n g e v i d e n c e ,
u n l e s s t h e r e is a c l e a r preponderance of
evidence against such findings."
( c i t a t i o n s o m i t t e d ) 658 P.2d a t 1 0 8 7 , 40
St.Rep. a t 152.
As noted above, before a district court can award
either spouse maintenance, it must find that the spouse
seeking maintenance l a c k s s u f f i c i e n t p r o p e r t y t o provide f o r
her reasonable needs. Section 40-4-203(1)(a), MCA. I t is
we11 s e t t l e d that sufficient property a s used h e r e means
income p r o d u c i n g , n o t income consuming p r o p e r t y . See I n re
Marriage of L a s t e r , (Mont. 1 9 8 2 ) 643 P.2d 597, 39 S t . R e p .
737; and I n r e M a r r i a g e o f H e r r o n ( 1 9 7 9 ) , 1 8 2 Mont. 1 4 2 , 595
Here the judgment gave respondent an automobile
together with the monthly payments, her personal effects and
one-half of the net proceeds from the sale of the family
home in West Yellowstone after payment of debts which were
well in excess of $30,000. While the home has been listed
for sale for over a year, it has not been sold and she has
received no income from the property. In addition the
interest on the debt obligations continue to erode her
equity in the home. Following the findings of the District
Court she also must now make a monthly payment of $257.52 on
an automobile which raises her monthly deficit from
practically $900 to $1,054.52 each month.
The record reveals ample evidence to support
respondent's testimony. She testified to a monthly deficit
of $897 per month in the amount needed to meet her needs and
those of the minor children. In addition, the property
distributed to her was income consuming property, not income
producing property. Thus we find the award of maintenance
by the District Court was based on substantial evidence.
The second issue is whether the District Court abused
its discretion in determining the amount of maintenance and
imposing limitations on its continuance.
Section 40-4-203(2), MCA sets forth relevent facts for
the district court to consider in determining maintenance
and the time period for its duration:
"(a) the financial resources of the party
seeking maintenance, including marital
property apportioned to him, and his
ability to meet his needs independently,
including the extent to which a provision
for support of a child living with the
party includes a sum for that party as
custodian;
"(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 from whom
maintenance is sought to meet his needs
while meeting those of the spouse seeking
maintenance."
We held in Jorgensen v. Jorgensen (1979), 180 Mont.
294, 590 P.2d 606 that, "What is important as far as the
maintenance award is concerned is the amount of income
available to the spouse to make the maintenance payments at
the time required to be made." 180 Mont. at 303, 590 P.2d
The District Court did its best to make specific
findings as to each statutory element with little or no help
from appellant during the trial. The record here clearly
indicates that there is sufficient support for the amount
reached by the District Court. Appellant had provided up to
$800 per month support during 1982. The court awarded her
$400 per month child support for the minor children, Scott
and Chris. Even totalling her income of $1,058 with the
$400 child support, she is still short approximately $500 of
her expenses not including the $257.52 car payment. Also
while she has aquired a masters degree and is employed as a
teacher, this does not yield a sufficient income to care for
the family's needs. The record indicates that her current
standard of living is considerably lower than that which she
enjoyed during her marriage and that the standard of living
of appellant did not experience any noticeable change after
she left.
Also the conditions of maintenance imposed by the
trial judge are not excessive. The District Court ordered
that payments be made until remarriage, death or passage of
ten years. Although the court did not specify in its
findings why it set those conditions, they are not beyond
substantiation. First the record indicates that respondent
is facing medical problems, namely a cataract condition,
which will have to be cared for in the next few years.
Second, respondent has custodial responsibilites which will
continue for at least another thirteen years. Finally, the
District Court could well have considered the fact that
respondent's pay as a school teacher in the next ten years
needed supplementation to restore not only her standard of
living but to properly care for those in her home.
While appellant cites numerous cases, within and
without this jurisdiction, where $500 per month maintenance
was determined excessive, each of those cases was decided on
its specific facts. Here the trial court heard the facts,
weighed the credibility of the witnesses, and determined the
case according to the facts and the law.
The decision of the District Court is affirmed.
We concur:
Chief ~ustice'