No. 8 6 - 2 0 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
WILLIAM H KEEL,
Petitioner and Appellant,
and
DONNA L. KEEL,
Respondent and Respondent.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable R.C. McDonough, Judge presiding.
CQTJNSEL OF RECORD:
For Appellant:
Ronald S. Efta, Wibaux, Montana
For Respondent :
Kathleen M. Fritsch, Glendive, Montana
Submitted on Briefs: August 7, 1 9 8 6
Decided: September 26, 1986
Filed: SET. 2 T 1986
-- -
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from an order of the District Court
for the Seventh Judicial District in and for Dawson County,
Montana, awarding maintenance and child support. Petitioner
appeals. We remand.
The issues on appeal are whether the District Court
abused its discretion in awarding maintenance to the wife and
ordering support payments higher than petitioner reasonably
can be expected to pay.
Petitioner, William Keel (husband), brought proceedings
in the District Court seeking dissolution of his fourteen
year marriage to respondent, Donna Keel (wife). His petition
stated the wife was a fit and proper person to be awarded
custody of the couple's three minor children and the only
issues to be decided by the District Court were division of
the property, the parties' debts, child support and
visitation. Following a bench trial the District Court
issued its findings, conclusions and decree. The husband
appeals that part of the decree requiring him to pay the sum
of $ 2 0 0 per month per child for their support, to pay all
medical, optical, dental, and drug bills incurred on behalf
of the children not covered by insurance, and to pay the wife
$300 per month maintenance for a period of four years or
until she remarries or cohabits with an adult male.
The scope of this Court's review when
considering the findings and conclusions
of a trial court sitting without a jury
is clear and well settled in Montana.
This Court's function ... is not to
substitute its judgment in place of the
trier of facts but rather it is "confined
to determining whether there is
substantial credible evidence to support"
the findings of fact and conclusions of
law. (Citations omitted.)
In Re the Marriage of Thompson (Mont. 1984), 676 P.2d 223,
There is very little conflict in the testimony and
evidence presented regarding the husband's income and the
parties' debts. Clearly the parties had no assets of any
value to divide in excess of the amount of liabilities owed.
The evidence shows the following assets:
Mobile home
1983 Ford ton pickup
Satellite TV receiver
Television
Retirement
Tools
Miscellaneous household
Tax refund
TOTAL
The debts and obligations owed by the parties jointly are as
follows:
Ford Motor Credit (pickup) $6,257.00
Koch Furniture 1,442.76
1st Nat. Bank of Willmington
(VISA card) 5,098.95
CITIBANK (Ready Credit Account) 5,713.97
Montgomery Ward 1,025.00
Chevron USA 130.71
Gate City Dairy 135.88
Dr. Thompson 100.00
Badlands Clinic 98.00
Robert Peterson (lot rent) 150.00
Eckroth Music 413.50
Mountain Bell 136.50
State Farm Ins. (pickup) 229.24
State Farm Ins. (mobile home) 215.00
1st Fidelity Bank (Ready Reserve) 800.00
Dawson County (taxes) 1,014.00
Mobile Home 7,900.21
Debt to wife's mother 925.00
Debt to wife's sister 500.00
TOTAL $32,285.72
The court divided the property and the marital debts as
follows: To the husband:
Mobile home, possession to be delivered
when respondent moves to the state of
South Dakota.
Satellite TV receiver and system.
Magnavox TV set.
Tools and tool chest.
Tax refunds.
Husband's retirement and profit. sharing
funds.
Husband's personal effects.
To the wife:
1981 Ford pickup and topper.
All furniture and household goods and
appliances, with the exception of the
previously mentioned Magnavox TV.
Children's personal effects.
Wife's personal effects.
The marital debts were divided as follows: To the
husband:
All indebtedness with the exception of
those listed below as being the
obligation of the wife:
To the wife:
Ford Motor Credit - balance due on
pickup.
Debt to wife's mother.
Debt to wife's sister.
Before awarding maintenance, the District Court must
consider two factors set out in 5 4 0 - 4 - 2 0 3 , MCA: Whether the
spouse seeking maintenance lacks sufficient property to
provide for her reasonable needs and whether the spouse
seeking maintenance is able to support herself 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.
In this case there is no marital real property to be
divided and that which was divided was to a large extent
agreed upon by the parties. Neither party received income
producing property which is the measure of sufficiency
necessary to provide for one's reasonable needs. Thompson,
supra, 676 P.2d at 226, 41 St.Rep. at 241; In Re the Marriage
of Laster (1982), 197 Mont. 470, 477, 643 P.2d 597, 601.
Consequently, neither party has sufficient property to
provide for his or her needs. Additionally, much of the
property is encumbered by debt, but that received by the
husband has the larger liens against it and will consume
larger amounts of his income.
The second factor to consider is whether the wife is
able to support herself through appropriate employment. (The
remainder of the statutory section is not relevant in this
case.) Although the wife has no work experience, there is no
evidence she cannot obtain suitable employment. In fact, she
requested permission from the court to move with the children
to South Dakota to seek employment. The court properly
concluded maintenance should be awarded to the wife, but, as
will be shown, there is not sufficient credible evidence as
to the amount.
We will consider the amount of child support to be paid
together with the amount of maintenance. The husband' s
employment is related to oil drilling. At the time of the
divorce he was receiving a gross monthly salary of $2,850,
based on a sixty hour work week, which he cannot anticipate
will continue. His net pay is between $1,500 and $1,600 per
month. Subsection (2) of S 40-4-203, MCA, sets forth the
factors to be considered by the court when determining amount
of maintenance and period of time it is to be paid:
[It] shall be in such amounts and for
such periods of time as the court deems
just, ... considering ...
(a) the financial resources of the party
seeking maintenance, including marital
property apportioned to him, and his
ability to meet his needs
independently, ...
(e) the age and 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.
The husband's financial obligations very nearly exceed
his financial resources. During the three months the couple
was separated before the dissolution he was able to reduce
his living expenses by living with friends. During this time
he also reduced the couple's debts by approximately $5,000.
He is responsible for all the balance of the couple's debts
except the balance due on the pickup and the debts to the
wife's mother and sister. The minimum payments due on the
large outstanding obligations are almost $500 per month.
Much of each payment is interest due, resulting in only a
small reduction in principal. We do not find sufficient
evidence in the record showing the husband has "the
ability . . . to meet his needs while meeting those of [the
wife]" pursuant to $ 40-4-203(2) (f), MCA. "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." In Re the
Marriage of Jorgenson (19791, 180 Mont. 294, 303, 590 P.2d
606, 611-612. Nor is there evidence the wife's age, physical
or emotional condition prevents her from seeking employment
necessary to meet her needs independently.
Child support is awarded after considering the factors
set forth in 5 40-4-204(1), MCA, and the factors set forth in
In Re Marriage of Carlson, (Mont. 1984), 693 P.2d 496, 41
St.Rep. 2419, including the needs of the children, the
financial resources of the custodial parent and the financial
resources and needs of the non-custodial parent. There is no
evidence the District Court applied the Carlson formula in
awarding child support. Numerous deductions from husband's
gross pay, including medical and dental insurance premiums
for his benefit and that of the children reduce his take-home
pay to between $1,500 and $1,600 per month. He must pay al-1
medical, dental, optical and drug bills incurred on behalf of
the children and not covered by insurance. He must make
monthly payments of approximately $500 on the largest of the
couple's outstanding debts. Further, he is responsible for
paying the major portion of the balance of the debts. He
must pay $900 per month child support and maintenance. This
does not leave him enough to meet his own personal needs.
We remand the case to the District Court to redetermine
the amount of child support, the degree of responsibility for
expenses not covered by insurance, and the amount and
duration of maintenance, consistent with this opinion.
We concur: /