No. 8 7 - 4 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
LAVON MEES FEISTHAMEL,
Petitioner and Respondent,
and
GEORGE J . FEISTHAMEL,
Respondent and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Rosebud,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Moses Law Firm; Michael Moses, Billings, Montana
For Respondent:
Lucas & Monaghan; Gary L. Day, Miles City, Montana
Submitted on Briefs: April 9, 1987
Decided: June 30, 1 9 8 7
'JUN 3 0 1987
Filed:
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
George Feisthamel appeals a maintenance and property
distribution award in a marital dissolution action from the
Sixteenth Judicial District Court in Rosebud County, Montana.
We reverse in part, affirm in part and remand for
further consideration in accordance with this Opinion.
The issues on appeal are:
1. Did the District Court err in making a determination
of a need for a maintenance award without considering certain
resources which were the subject of an antenuptial agreement
between the parties?
2. Did the District Court abuse its discretion in its
order of property disposition?
George and LaVon Feisthamel were married on October 18,
1974. They entered into an antenuptial agreement dated
October 5, 1974, prior to the marriage. They separated in
July, 1984.
The respondent, LaVon Feisthamel, is a 62 year old woman
in fair health. LaVon has had a history of problems relating
to high blood pressure, depression, post-menopausal problems,
and osteoarthritis. She underwent eye surgery for glaucoma
shortly before the trial in this matter and further surgery
may be needed.
LaVon has not been in the employment market
significantly. While she is a registered nurse, she is not
currently licensed since her training occurred many years ago
and she has never worked in that capacity. LaVon worked as a
housewife and homemaker in a previous marriage and, following
her first husband's death, was employed for a short time as a
secretary/receptionist in a Billings Chiropractic Office.
During her marriage to the appellant, she worked as a
homemaker and housewife. She has made numerous attempts to
obtain full employment and obtained a temporary Vista
volunteer job for which she receives $357 per month. That
job was to end in May, 1987.
The appellant, George Feisthamel, is a 59 year old male
in generally good health. Appellant has been employed by
Long Construction Company and Western Energy for many years
as a heavy equipment mechanic. The appellant is a member of
the International Union of Operating Engineers.
He continues to reside in the family home located in
Colstrip, Montana. The respondent moved from the family home
in July, 1984.
Both of the parties owned certain properties, both real
and personal, prior to their marriage. The trial court found
that the antenuptial agreement dated October 5, 1974,
excluded from consideration all real and personal property
owned by either party prior to the marriage in determining
the issues of maintenance and division of marital assets.
This provision was honored in the final decree.
The trial court divided the net marital assets equally
between the parties and awarded petitioner maintenance in the
amount of $500 per month commencing November 1, 1986, and
ending November 31, 1991.
The appellant contests the award of maintenance and the
property disposition.
Appellant contends the District Court abused its
discretion in awarding respondent this maintenance. He
argues that the court erroneously failed to consider the
financial resources of the respondent arising out of property
subject to the antenuptial agreement. He states both parties
knowingly signed the antenuptial agreement. Despite this, he
argues the particular provisions disallowing the
consideration of properties acquired before the marriage.
should be declared void as against public policy as they
relate to a determination of the need for maintenance.
The provision involving the maintenance issue in the
October 5, 1974 antenuptial agreement states:
That in the event, after entering into the
marriage, said parties find they cannot live
together congenially as husband and wife and decide
to separate and/or to secure a divorce. - -
L
and it
is necessary - - - an equitable division of their
to make
property rights - - a determination - -
and of therights,
if any, - Second Party to separate maintenance or
- of
temporary or permanent a l i m o n y , - - -
all real and
personal property now owned b~ - parties shall
the
- - taken
not be into consideration. Provided,
however, in event of such separation and/or
divorce, Second Party shall be entitled to an
equitable division of the property accumulated and
acquired as a result of and in connection with
their marriage. Provided, further when said
accumulated property has been equitably divided
said parties shall execute and deliver to each
other, a release of any and all right, title and
interest which they may have or claim in and to the
property now owned or hereafter accumulated by
either party. Provided, further that in the event
a divorce is granted by a Court of competent
jurisdiction to either party the terms of this
contract shall be binding upon said Court, and at
the time of granting said divorce this contract
shall be incorporated in said decree. (Emphasis
added. )
Appellant claims that the District Court should have
considered a certain annuity of $248 as well as other income
or benefits she might receive from a trust provided by her
deceased first husband.
Respondent LaVon's position is that the annuity income
of $248 per month and any trust benefits are covered by the
antenuptial agreement and should not be considered for
determining the appropriateness of maintenance. She further
argues that maintenance is appropriate even if the annuity
was to be considered because she still lacks sufficient
property to provide for her reasonable needs and is unable to
support herself through appropriate employment.
This issue requires an analysis of several statutes.
Montana's maintenance statute S 40-4-203, MCA, states:
Maintenance. (1) 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.
(2) The maintenance order shall be in such amounts
and for such periods of time as the court deems
just, without regard to marital misconduct, and
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, 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;
(dl the duration of the marriage;
(el 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.
Section 4 0 - 4 - 2 0 3 , MCA.
The rights of two parties to contract with one another
are elemental and firmly established by the laws of this
state and our federal Constitution. Contracts between
parties prior to their marriage as well as contracts between
married parties, if fair and equitable, are enforceable
contracts if they do not conflict with the laws and public
policy of this State.
Section 28-2-201, MCA, allows all persons who are
capable of contracting except minors, persons of unsound
mind, and persons deprived of civil rights to enter into
contracts. More specifically 5 40-2-301, MCA, permits either
a husband or a wife to enter into any engagement or
transaction with the other or with any other person
respecting property which either might, if unmarried, be
allowed to enter into subject to the general rules on trusts
which control the actions of persons occupying confidential
relationships with each other.
This Court has also enforced antenuptial agreements as
valid in the State of Montana if they meet the requirements
of a contract. Stefonick v. Stefonick (1946), 118 Mont. 486,
167 P.2d 848; In Re Herzog's Estate (1973), 162 Mont. 410,
513 P.2d 9.
In the case before us, the trial court honored the
provision in the Feisthamel antenuptial contract which
disallowed consideration of each parties' property owned
prior to the marriage for purposes of determining maintenance
and property disposition.
We hold that this was error as it relates to the
maintenance provision because such a provision conflicts with
the inherent public policy expressed in S 40-4-203, MCA.
A grant of maintenance under the statute has specific
preconditions which must be met. Section 40-4-203 (1)(a),
MCA, states a spouse must lack sufficient property to provide
for his or her reasonable needs to qualify for a maintenance
award. This requires the trial court to consider all of the
financial resources available to the spouse seeking
maintenance, including, but not limited to the resources
listed in S 40-4-203(2) (a), namely, the marital property
apportioned to him or her and the ability to meet one's needs
independently.
As a general rule this Court will honor and uphold
antenuptial agreements between two consenting parties in
accordance with the contract and domestic relations laws of
this State. However, a contract provision which disallows
full consideration of one party's financial resources when
determining the maintenance rights between the parties to a
dissolution is not enforceable as against the public policy
of this State.
The trial court is required by S 40-4-203 (2)(f), MCA,
to consider the ability of the other spouse, the one from
whom maintenance is sought, to meet his or her needs while
meeting those of the spouse seeking maintenance. To this end
we hold that appellant's financial resources whether included
in the antenuptial contract or otherwise, must also be
considered in making a determination of maintenance.
Thus the trial court must consider all of the resources
available to the parties before an award of maintenance may
be granted.
The trial court also found that respondent testified she
was not receiving social security benefits. In keeping with
the above holding, we note that social security benefits are
a potential financial resource of the parties. The United
States Code through the Social Securities Act, provides that
a divorced spouse of an individual entitled to social
security retirement or disability benefits is entitled to
spousal benefits if certain criteria are met. - 42 USCS SS
See
402, 416.
According to one treatise, 2 Social Security, - -
Law and
Practice 5 15:7 (John A. Glenn ed. 19871, a spouse is
entitled to benefits if he or she:
(1) applies for such benefits;
(2) is at least 62 years old;
(3) is not entitled to his or her own primary
benefit in an amount equal to or greater than
one-half that due his or her spouse; and
(4) is not married. ...
A divorced spouse who is otherwise eligible for
spousal benefits may receive those benefits
regardless of whether the insured former mate has
begun to receive benefits. In order to be
eligible, both the claimant and the insured must be
age 62 or older and must have been divorced for at
least two years prior to the date the spouse
applies for benefits. Prior to 1985, a divorced
spouse could not receive benefits unless the
insured former mate had applied for and begun to
receive benefits. Id. at 9.
The U.S. Code defines a "divorced wife" in 42 USCS 5
416 (c) to mean:
A woman divorced from an individual, but only if
she had been married to such individual for a
period of 10 years immediately before the date the
divorce became effective.
Also 42 USCS 402(e) provides for an entitlement of
widow's social security insurance benefits if certain
criteria are met.
Upon remand the trial court is instructed to consider
the issue of respondent's potential eligibility for social
security benefits in determining the need for a grant of
maintenance to respondent.
This case is therefore remanded to the trial court with
instructions to consider the resources included in the
antenuptial contract and other available resources when
determining an award of maintenance under these facts.
We find no abuse of discretion in the trial court's
consideration and findings on the remainimg statutory
preconditions for a maintenance award listed in §
40-4-203 (2)(b) through 2 (f), MCA. The above decision,
therefore, does not necessarily preclude a maintenance award
at the discretion of the trial court upon remand.
With respect to the second issue of property
distributions, appellant contends that the trial court erred
and abused its discretion by acting arbitrarily, which
resulted in substantial injustice to appellant in the
following respects:
First, the trial court included the appellant's
retirement plan in the marital estate. Appellant argues the
plan was part of the property subject to the antenuptial
agreement of the parties. We hold the plan was properly
included in the marital estate as a benefit of the employment
of appellant similar to wages which are also includable.
Further, the plan vested during the duration of the parties'
marriage. It was not error to include the plan.
Second, appellant contends the trial court erred in its
valuation of $2,000 for the 1975 pick-up and $2,800 for the
1977 Cadillac. A review of the record indicates the trial
court arrived at a value for the 1975 pick-up between the
Blue Book value and appellant's approximation of the value.
The record further indicates appellant states he was
offered $1,700 for the 1977 Cadillac but he did not state its
worth. Respondent's affidavit states it was worth $2,800
according to the Used Car Guide.
We find no abuse of discretion by the trial court in its
determination of these values.
The last contention by appellant is that the trial court
incorrectly used the appraisal value of the family home of
$97,300, dated October 1, 1984. He contends the correct
value was the one placed on it by himself of $78,000 at the
date of the divorce proceedings in 1986.
Our review of the record indicates no error. This Court
has recognized that valuation of the marital assets is
preferably done at the time of distribution using fair market
values. In re Marriage of Krause (Mont. 1982), 654 P.2d 963,
39 St.Rep. 1809. However, respondent had the home appraised
by an independent appraiser at $97,300 in October of 1984.
At trial, in August 1986, appellant speculated the home was
worth $78,000 but when questioned by the trial court, he
presented no concrete evidence. Without more, the trial
court did not exceed the bounds of reason but employed
conscientious judgment in adopting the respondent's valuation
of the family home.
We find no error on the property valuation and
distribution as argued by appellant. This case is affirmed
in part, reversed in part and remanded in accordance with
this Opinion.
W e Concur:
Chief J u s t i c e