No. 85-626
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
JEANNIE F. GOODMAN,
WILLIAM WOLF GOODMAN, JR.,
APPEAL FROM: District Court of the Eleventh Jud-icial District,
In and for the County of Flathead,
The Honorable Frank I. Haswell, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Keller and German; Robert S. Keller, Kalispell, Montana,
For Respondent :
Hash, Jellison, O'Brien and Bartlett;
M. Dean Jellison, Kalispell, Montana.
Submitted on Briefs: June 6, 1986
Decided: August 7, 1986
Filed: AUG 7 - 1986
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Clerk
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from an amended judgment of the
Eleventh Judicial District in and for Flathead County
Montana, which divided the marital estate, provided for child
support, and denied maintenance. We affirm in part and
reverse and remand in part.
Jeannie F. Goodman and William Wolf Goodman, Jr., were
married in September 1 9 6 9 . The marriage was dissolved in
August, 1 9 8 5 . Four children were born to the Goodmans, ages
thirteen, eleven, seven and five at the time of this appeal.
Both Jeannie and William are healthy people in their
late-thirties. Jeannie has not had outside employment during
the marriage, and other than doing some weaving which she
sells from time to time, has earned no income. She has three
and one-half years of college credit toward a degree in
English.
William earns $400 a month as a part-time teacher in
the Kalispell Montessori School, with the expectation of
becoming a full-time teacher earning about $1,000 a month.
At the time of the marriage, however, he had inherited
assets, including a trust account, valued at just over
$700,000.
The couple bought Salmon Prairie Ranch in the Swan
Valley shortly after the marriage and lived there until 1 9 7 9 .
William engaged in ranching and had a log home construction
enterprise. In 1 9 7 9 the couple bought a home in Kalispell in
order that the children could attend better schools.
Expensive remodeling of this home was subsequently
undertaken. William occupies this home and Jeannie lives in
another home which William paid for and which payment is to
be considered part of the property settlement.
At trial William projected his earnings at $30,000 a
year. The court found Jeannie presently could earn $6,000 a
year without further education. Jeannie testified it was her
intention to pursue further education to become a speech
pathologist which would produce an income of $12,000 to
$16,000 a year rather than moving to a city where a degree in
English could be marketed.
The total marital estate was determined to have a net
worth of $1,057,640. The court allowed William to retain the
value of his at-marriage net worth of $712,128 with an equal
division of the remaining $343,862 with Jeannie. Jeannie
would receive her share, $171,931, in a combination of
property and cash. No maintenance was awarded.
The court found that an alternating, joint custody
arrangement is in the best interests of the children. The
children are to reside with William during the school year
1985-1986, with Jeannie during the summer months of 1986,
with the residency alternating each succeeding year.
Applying the Carlson formula, In Re the Marriage of Carlson
(Mont. 1984) 693 P.2d 496, 499-500, 41 St.Rep. 2419, 2423,
the court ordered that William pay child support of $250 per
month per child when the children reside with Jeannie and
that Jeannie pay child support of $50 per month per child
when the children reside with William.
Jeannie appeals, arguing the court erred in its
distribution of the marital estate; in its determination she
is capable of earning an annual income of $6,000 without
further education, and is not in need of maintenance; and
that application of the Carlson formula is error because she
has insufficient income to meet her minimal needs.
We will reverse the District Court only if its findings
are clearly erroneous, resulting in an abuse of discretion.
Rule 52(a), M.R.Civ.P. The test of abuse of discretion is
whether the trial court acted arbitrarily without employment
of conscientious judgment or exceeded the bounds of reason
resulting in substantial injustice. [Citing cases.] In Re the
Marriage of Perry (Mont. 1985), 704 P.2d 41, 43, 42 St.Rep.
In apportioning the marital estate, the District Court
must follow the requirements of 5 40-4-202 (I), MCA, and case
law. Smith v. Smith (Mont. 1981), 622 P.2d 1022, 1024, 38
St.Rep. 146, 148; Tefft v. Tefft (Mont. 1981), 628 P.2d 1094,
1099, 38 St.Rep. 837, 844; Peterson v. Peterson (1981), 195
Mont. 157, 163, 636 P.2d 821, 824. Section 40-4-202 says in
pertinent part:
(1) In a proceeding for dissolution of a
marriage, ... the court, ...
shall, ... equitably apportion between
the parties the property and assets
belonging to either or both, however and
whenever acquired and whether the title
thereto is in the name of the husband or
wife or both. In making the
apportionment the court shall consider
the duration of the marriage ... ;
... the age I health, station,
occupation, amount and sources of income,
vocational skills, employability, estate,
liabilities, and needs of each of the
parties; custodial provisions; 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. In dividing
property acquired prior to the
marriage; ... the court shall consider
those contributions of the other spouse
to the marriage, including: (a) the
nonmonetary contribution of a homemaker
(b) the extent to which such
contributions have facilitated the
maintenance of this property; and (c)
whether or not the property division
serves as an alternative to maintenance
arrangements.
It is agreed William brought more than $700,000 into
the marriage. There is substantial credible evidence on the
record which reflects Jeannie's nonmonetary contribution to
the marriage. Jeannie testified she milked cows, raised and
canned vegetables, ground her own flour to make bread, and
sewed many of the clothes the family wore. The marital
estate was worth $1,057,640 at the time of the dissolution.
We have held if the assets have not appreciated during the
marriage, their value at its dissolution cannot be a product
of contribution from the marital effort. In Re the Marriage
of Balsam (1979), 180 Mont. 129, 134, 589 P.2d 652, 654; In
Re the Marriage of Herron (1980), 186 Mont. 396, 403, 608
P.2d 97, 101. William's assets have appreciated, indicating
contribution.
At trial, it was agreed the assets owned by William at
the start of the marriage totaled $712,128. They consisted
of the following:
Memphis Residence
Furniture
Art
Stereo
Trust Funds (stocks)
Trust Funds (bonds)
Personally Held Securities
Cash
TOTAL
"In order to have a proper distribution of the marital
property, we have stated the trial court must first determine
the net worth of the parties at the time of the divorce
[citing cases] ." In Re the Marriage of Brown (1978), 179
Mont. 417, 423, 587 P.2d 361, 365.
The District Court determined the net estate at the
time of the dissolution included the following:
Salmon Prairie Ranch
House at 738 Second Ave. E.
Home Furniture (two houses)
D.A. Davidson account
Four cars
Stereo
Art work
Two small land tracts
Accounts receivable
Log homes (Salmon Prairie)
Husband's IRA
Wife's jewelry
Wife's loom
Wife's guitar
Wife's sofa
Wife's knitting machine
Sailboat
House at 835 First Avenue
E. (equity)
Lake cabin (equity)
TOTAL
The District Court found the following constituted an
equitable division of the assets of the net estate to arrive
at the marital estate:
VALUE WIFE HUSBAND
Salmon Prairie Ranch
House-738 2nd Ave. E.
Home furnit. (2 houses)
D.A. Davidson Account
Four cars
Stereo
Art Work
2 small land tracts
Accounts receivable
Log homes (Salmon Prairie)
Husband's IRA
Wife's jewelry
Wife's loom
Wife's guitar
Wife's sofa
Wife's knitting machine
Sailboat
House-835 1 Ave.E (equity)
Lake cabin (equity)
SUBTOTALS $1,057,640
Less Husband's
Separate Property
Less Wife's
Separate Property
TOTALS
TO EQUALIZE
The property and assets of the parties are extensive
and complex. We will not attempt to review every element of
a complex property distribution . . . Our function is to
examine whether there is substantial evidence to support the
property distribution. In Re the Marriage of Williams (Mont.
1986), 714 P.2d 548, 554, 43 St.Rep. 319, 327. We find there
is substantial credible evidence to support the property
division.
We conclude, however, there is not substantial credible
evidence to support the lack of a maintenance award, or use
of the Carlson formula to determine each party's share of
child support. The only evidence on the record Jeannie is
capable of earning $6,000 per year is testimony by William to
that fact. There is no evidence Jeannie has marketable
skills to acquire appropriate employment. We have held that
"appropriate employment" as used in $ 40-4-203 (1)(b), MCA,
must be determined with relation to the standard of living
achieved by the parties during the marriage. In Re the
Marriage of Madson (1978), 180 Mont. 220, 590 P.2d 110.
There are no findings .the court considered appropriate
employment possibilities or the standard of living achieved
by the parties during the marriage.
Maintenance can be awarded only to parties lacking
sufficient property to provide for their needs and are unable
to provide for themselves through appropriate employment.
Section 40-4-203 (1) , MCA. In Re the Marriage of Laster
(1982), 197 Mont. 470, 477, 643 P.2d 597, 601; see also
Herron, supra and In Re the Marriage of Bowman (Mont. 1981) ,
633 P.2d 1198, 38 St.Rep. 1515. We have determined that the
term "sufficient property" as used in § 40-4-203(1) (a), MCA,
means income producing property, not income consuming
property. Herron, supra, and Bowman, supra. Much of the
property awarded to Jeannie is income consuming, and that
which is not is insufficient to meet her needs.
The District Court erred in applying the algebraic
formula set out in Carlson, supra, to determine the
respective contributions of each party to child support,
because there is no evidence of Jeannie's actual earning
capability. Carlson says the "earning capacity of the
parents must realistically reflect what the parents are
capable of earning, using their actual earnings as a
guideline. " 693 P.2d at 500, 41 St.Rep. 2423. Absent
evidence of actual earning, the capability formula cannot be
applied. This is not to suggest that either party is excused
from providing child support consistent with the means to do
SO.
Use of the [Carlson] formula rejects
romantic notions of women being supported
by their ex-husbands, or fathers refusing
employment they don't like. Married
parents have no such luxury, and it
should not be a luxury afforded divorced
parents. 693 P.2d at 500, 41 St.Rep. at
2423.
In this case the award of child support payments from
William to Jeannie will continue as ordered by the District
Court, but payments from Jeannie to William when the children
are living with him will commence when she has found
employment, at an amount to be determined by the District
Court.
We remand this case to the District Court to determine
the amount and duration of a maintenance award in accordance
with the factors set forth in § 40-4-203, MCA, and an
appropriate level of child support to be paid to William by
Jeannie when the children are living with him after she has
obtained employment. On remand, the District Court,
consistent with this opinion, should consider the sufficiency
of the property award, the standard of living achieved during
the marriage, and Jeannie's appropriate employment
possibilities with relation to that standard of living.
We Concur:
Mr. Justice L. C. Gulbrandson, concurring in part and dis-
senting in part:
I concur with that portion of the majority opinion
affirming the property division, but I respectfully dissent
to the remand for determination of a maintenance award in
accordance with S 40-4-203, MCA, and to that portion of the
opinion which modifies the ordered child support payments. I
believe that the District Judge has complied with the provi-
sions of S 40-4-203, MCA, and prior decisions of this Court.
The majority opinion contains the statement that there
is no evidence of wife's actual earning capability and that,
absent such evidence, the Carlson formula should not be
applied.
In my view, the statements of the majority ignore the
testimony of the wife that she had three and one-half years
of college, six months of Montesorri training at London,
England, and that she has sold her weavings in the past, and
the testimony of the husband that wife is capable of earning
at least a minimal wage in the amount of $300 per month. The
wife made no effort to refute the testimony of husband that
she could earn a minimal wage but testified that she would
like to attend the University of Montana for three and
one-half additional years before obtaining employment. The
majority opinion quote from Carlson regarding "fathers refus-
ing employment they don't like," should perhaps apply equally
to mothers.
The District Court's Findings of Fact contain the
following:
12. The wife testified that she needs
maintenance in the amount of $535.00 per
month in addition to child support. The
Court determines that the wife is not in
need of maintenance in addition to the
property division hereinafter provided
and, further, that the husband is not
capable of paying any maintenance after
he meets his own needs and the child
support obligation. The wife is a
healthy, employable woman in her
mid-thirties. The house where she
resides has been set aside to her in the
division of the marital assets and the
parties have represented to the Court
that the mortgage due on the home has
now been paid. The wife has received
sufficient marital assets to assist in
her readjustment following this dissolu-
tion and through prudent investment a
portion of these assets will be income
producing.
13. The wife is able to provide for her
own needs and will receive an adequate
amount from the husband to meet the
needs of the children when they reside
primarily with her. Three of the four
children are school age. The child
support the wife receives is adequate to
provide day care, babysitting or
pre-school, among other things. The
wife is ca.pable of working outside the
home.
The District Court's Conclusions of Law contain the
following:
5. No separate maintenance should be
awarded to the wife.
7. That the property division hereinbe-
fore set forth in the Findings of Fact
should be made in lieu of maintenance
for the wife.
The majority opinion is silent regarding the District
Court's specific finding that "the husband is not capable of
paying any maintenance after he meets his own needs and the
child support obligation." Husband's testimony that, after
paying $1000 per month child support and paying for his own
needs, he will be unable to make any maintenance payments
without drawing against his capital assets clearly supports
the Court's finding.
I cannot concur in this Court's remand for a mainte-
nance award which obviously will have the effect of
re-determining the property division which has now been
approved by the majority and which was clearly awarded in
lieu of maintenance.
I would affirm. f 'A
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