No. 84-374
IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE MARRIAGE OF
LINDEN EDWARDS ,
Petitioner and Appellant,
and
MARILYN EDWARDS,
Respondent and Respondent.
APPEAL FROM: District Court of Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert M. Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Keller & German; Ann C. German, Libby, Montana
For Respondent :
Douglas & Bostock; William A. Douglas, Libby, Montana
Submitted on Briefs: Feb. 22, 1985
Decided: May I, 1985
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Husband appeals from a decree of dissolution entered in
the District Court of the Nineteenth Judicial District,
Lincoln County. Appellant claims it was an abuse of discre-
tion to award the wife indefinite monthly alimony in addition
to a disproportionate property share when the wife is not
disabled. On appeal, the husband also claims that the court
erroneously considered the husband's living arrangements,
thus compensating the wife for his "marital misconduct."
We affirm the lower court judgment. The court consid-
ered the statutory factors under the Uniform Marriage and
Divorce Act regarding property division and maintenance and
referred to the factors in its findings of fact and conclu-
sions of law. The record shows the employment of conscien-
tious judgment in arriving at a substantially just result.
Where the record fails to show an arbitrary exercise of
discretion and the ruling is not clearly erroneous, we will
not overturn a iudgment.
Appellant brings this appeal to our Court upon the
following issues:
1. Did the lower court abuse its discretion in award-
ing the wife "lifetime" alimony of $500 monthly where she got
the family residence, he got the property he had acquired
through inheritance, and she was not disabled?
2. Did the court erroneously consider marital miscon-
duct in dividing the marital property and awarding
maintenance?
Linden and Marilyn Edwards were married. at Coeur
dlAlene, Idaho, on March 7, 1959. Linden adopted her two
children and the couple had. five more children of their own.
At Linden's insistence, Marilyn stayed home and occupied
herself as wife, mother and housekeeper. As the breadwinner,
Linden had a varied career including logging and mining. For
a number of years he has worked at ASARCO, now as a supervi-
sor making $33,000 per year. Parties resided the last twen-
ty-three years of their marriage in the home in Libby. Tn
1980 they purchased acreage at Troy, Montana, with an inheri-
tance from Linden's mother.
After the parties separated in August 1983, Marilyn
secured part-time seasonal employment performing menial tasks
at H & R Block during the 1984 tax season. She had acquired
her high school equivalency degree in 1976 and had attended
some adult education classes to improve her chances of suit-
able employability . Unfortunately, her inability to type
more than 30 words per minute hampered her in her numerous
applications for jobs.
Following separation in August 1983, the parties divid-
ed their cash in the bank, $1300 to Linden and $1200 to
Marilyn, and apportioned a $2500 certificate of deposit for
Marilyn's use. Linden made voluntary payments of $700 per
month from September 1 , 1983, to April 1, 1984, for the
support of their daughter, Theresa, her baby and Marilyn. He
modified his payments to $600 per month in May 1984.
Linden's petition for dissolution was filed December 7,
1983. He proposed paying respondent $400 per month for the
support of Theresa to the age of majority or completion of
high school, whichever comes later. Theresa was eighteen in
October 1984 and should graduate from high school in June
1985. He proposed to pay respondent the sum 0-f $200 per
month for "spousal support" for a period of five years.
Finall-y, Linden's petition stated: "VIII. That the parties
have accumulated real and personal property which should be
distributed as follows:
- PETITIONER
TO - RESPONDENT
TO
Real Property in Troy, MT-
House in Libby, MT
1971 ~ o r d
Pickup 1976 Ford
1976 Fort [sic] Pinto"
Respondent answered with a prayer for $200 per month
for the support of Theresa and $690 per month as support for
respondent till she should. marry or die, provided that the
amount should be red-ucedby any amounts of monthly income she
would earn. She agreed to his proposed property divi-sion,
but asked the court to consider additional items of personal
property to make an equitable d-istribution.
At the hearing on May 22, 1984, Marilyn testified that
she was residing in the family home. She acknowledged that
two adult children living at home were contributing toward
their share of expenses a total of $250 per month. 1,inden
testified that he lived in an apartment and not on the prop-
erty at Troy because the house was still uninhabitable. He
admitted sharing expenses with a lady roommate who was earn-
ing about $16,000 per year. He was not contributing to the
roommate's support.
The court divided the property in the manner both
parties requested and granted custody of Theresa to respon-
dent with $200 per month support to age eighteen or comp1.e-
tion of high school. The court awarded respondent $500 per
month alimony to continue until she remarry, cohabit or die.
Issue - - I:
No. Abuse - discretion - awarding indefi-
of in
nite alimonx? Appell-ant contends that he proposed an "ineq-
uitable" property division so that respondent would have the
bulk of the marital- estate and then he would not "be no
welfare state." In the motion for reconsideration, he con-
tended that the court gave him no credit for the amount of
his inheritance invested in his real property at Troy. He
criticized the court for noting the inheritance in the
findings of fact but not debiting it from the marital estate
in the conclusions of law.
The appellant has changed his theory on the property
several times. In his petition in December 1983, he referred
to property "the parties have accumulated" and proposed the
present distribution. Petitioner's proposed findings of fact
and conclusions of 1.aw in May 1984 reccmmended a formula
which included $3,000 of the $35,000 inheritance in the
family pot, and then debited $32,000 from the total property
for Linden's inheritance. This formula would leave the
marital share at $25,412.50 each, Marilyn to have a $15,000
excess. After judgment, his motion for reconsideration with
the identical property division as proposed all along,
Linden's share of the marital estate had dropped to $15,415
and Marilyn's was at $40,000. Finally on appeal., Linden's
share remained at $15,415 and Marilyn's had risen to $42,500.
The court awarded the property as both parties request-
ed. Acquiring property by gift or devise is only one factor
to be considered in determining the respective contributions
of both parties. In re the Marriage of Collett (Mont. 1981),
621 P.2d 1093, 1096, 38 St.Rep. 36, 39. The court referred to
the inheritance in the findings of fact, es we11 as to
Marilyn's twenty-five years as a homemaker. The court is not
required to distribute equally but rather to consider the
criteria set forth in § 40-4-202 to make an equitable distri-
bution. In re the Marriage of Hecht (Mont. 1982), 649 P.2d
1257, 1259, 39 St.Rep. 1455, 1458. The statute is flexible
and vests discretion in the District Court to look at each
case individually. In re the Marriage of Laster (Mont.
1982), 643 P.2d 597, 601, 39 St.Rep. 737, 740; In re the
Marriage of Martens (Mont. 19811, 637 P.2d 523, 526, 38
St.Rep. 2135, 2138.
We hold that the court did not abuse its discretion in
its distribution of property. The court submitted detailed
findings which noted the source of the marital properties and
the nature of the marital contributions. "The findings were
detailed, reasoned, and supported by the evidence presented
a.t trial.. ... It Marriage of Levandowski (Mont. 1981), 630
In the conclusions of I.aw, the court distributed the
property as proposed by appellant:
"4. That the property of the parties is
distributed as follows:
PETITIONER'S PROPERTY
Real Property $47,000.00
Other property
per Exh. "B"
Total $53,615.00
Less debt 8,200.00
NET TOTAL $45,415.00
RESPONDENT'S PROPERTY
Real Property $36,000.00
Other Property
per Exh. "A" 4,070.00
TOTAL
The court let stand the proposed division as equitable.
Whether considered as a disproportionate share of marital
property to either party is irrelevant where both parties
agreed to a division which is substantially fair. The court
concluded:
"The Court will- not order adjustment of
differences in property distribution
because of Petitioner's ability to pay
in the light of support requirements
herein. l1
The court then proceeded to determine the necessity for
maintenance.
The award of maintenance is based upon the particular
circumstances, and not upon a mandatory adjustment for prop-
erty division. The court has the discretion to grant mainte-
nance to the party seeking maintenance who lacks sufficient
property to provide for his or her reasonable needs and is
unable to meet those needs through appropriate employment.
Section 40-4-203, MCA. "The Act provides for the coordina-
tion of property distribution and maintenance to assure that
a spouse without the ability to support herself will be
maintained at a similar standard of living." Levandowski,
630 P.2d at 242.
"Sufficient property" is income-producing property.
Laster, 643 P.2d at 601; In re the Marriage of Bowman (Mont.
1981), 633 P.2d 1198, 1200, 38 St.Rep. 1515. The court does
not abuse its discretion in refusing to force the sale of a
family home. In re the Marriage of Madson (1979), 180 Mont.
220, 223, 590 P.2d 110, 112. In denying petitioner's motion
for reconsideration, the court reasoned that it was to peti-
tioner's benefit for respondent to receive the family home.
If there were an inequality in the marital property division
in so doing, it inured to petitioner's benefit in lesser
monthly expense to maintain respondent's standard of living.
Appellant argues that he should not pay extended main-
tenance because he did not receive income-producing property.
He is not the party seeking maintenance and he does have an
income. Respondent received property which cannot provide
for her reasonable needs. The issue is whether respondent is
able to support herself through suitable employment. The
evidence supported a conclusion that she has made efforts to
become employable and has tried to find employment. Linden's
projection of her trainability and improved employability was
vague, while her efforts were clearly on the record. The
judge reasonably concluded that Marilyn could earn about $200
per month on a yearly basis. Determining her reasonable
needs based upon a conservative projected monthly budget of
$720 per month after the daughter leaves home, the court
concluded that she would need $500 per month in maintenance
in addition to what she could earn.
We hold that the court did not abuse discretion in this
award of maintenance. The court considered her financial
resources including the property apportioned to her in the
decree and her ability to meet her needs independently. The
court looked at the duration of the marriage and the standard
of living established during the marriage, adjusted down by
necessity to the "living condition expectancies of respon-
dent," i.e., her reasonable budget.
Where appellant did not testify specifically as to
respondent's rehabilitative capability, the court made a
realistic appraisal of respondent's ability to support her-
self in some reasonable approximation of the standard of
living established during the marriage. This Court approved
the court's conscientious effort, particularly in a marriage
of long-term duration in which there is a long-term absence
of the spouse from the labor market and no presently existing
employable skill. Madson, 590 P.2d at 112-113. As in
Madson, this Court will not require respondent to sell her
house and get job training. There was no basis on the record
for the lower court to conclude that she would be totally
self-supporting at the end of "some kind of training," as
proposed by appellant.
The court concluded, based upon petitioner's monthly
expenditures, that he has the ability to meet his needs and
pay her the sum she will need. Petitioner's expenditures are
not as conservative as respondent's. He has been able to
make support and maintenance payments of $ 6 0 0 - $ 7 0 0 per month
and still support a higher standard of living for himself
than respondent enjoys.
No.
Issue - - 2: Appellant raises - final issue:
a Did the
--
court erroneously consider "marital misconduct" - apportion-
in
maintenance? There is no basis in the record, the judg-
ment, or the findings of fact and conclusions of law for such
a contention. The court considered the living arrangements
of both parties. From the record it is apparent that Marilyn
is not supporting or supported by her adult children and
Linden is not supporting or supported by his roommate. The
court heard only limited testimony as to financial matters;
no other questions or issues were raised anywhere on the
record.
We have allowed a fiancee's income to he considered in
determining the future financial status of a spouse and his
ability to pay for maintenance. Laster, 6 4 3 P.2d at 6 0 2 . We
have allowed a second wife's income to be considered as part
of a husband's family's net income. In re the Marriage of
Cromwell, (1979), 180 Mont. 40, 44, 588 P.2d 1010, 1 0 1 2 .
Here, the roommate's income was noted in the findings of fact
on petitioner's share of household expenses. We can find no
consideration of marital misconduct.
We apply the following test in reviewing a lower court
judgment in a dissolution: Did the District Court in the
exercise of its discretion act arbitrarily without employment
of conscientious judgment, or exceed the bounds of reason
resulting in substantial injustice? Laster, 6 4 3 P.2d at 601.
We find the record replete with competent evidence. The
court conscientiously coordinated the maintenance and proper-
ty division.
We hold that .the judge had. a reasonable basis for
awarding indefinite maintenance with the limits of remarriage
or cohabitation with another mate. Respondent had made a
concerted effort to adjust to a single life, but the record
indicates that she will have a continued limited ability to
meet her reasonable needs and that petitioner can afford to
pay maintenance and still meet his needs.
Affirmed.
We concur: