No. 8 6 - 5 4 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
PAUL W. HERRON,
Petitioner and Respondent,
and
SHARON M. HERRON,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Lei£ Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
I. James Heckathorn, Kalispell, Montana
For Respondent:
M. Dean Jellison, Kalispell, Montana
Submitted on Briefs: Feb. 26, 1 9 8 7
Decided: A p r i l 30, 1987
Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Sharon M. Herron appeals from a judgment following
remand entered by the District Court, Eleventh Judicial
District, Flathead County. We affirm.
This cause was before us in Herron v. Herron (19801, 186
Mont. 396, 608 P. 2d 97. Therein we set forth the pertinent
facts relating to the marriage of the parties. We reversed
the District Court and remanded it for retrial on the issues
of property distribution and maintenance.
As to the judgment entered by the District Court after
remand, Sharon appeals from the provisions of that judgment
involving the division of the marital property, the provision
for maintenance of the wife, and the support provision for
the minor child of the parties.
Relating to the marital property division, our remand
indicated that both parties should share equally in the
portion of the value of the property attributable to
contribution from the marriage and appreciation during the
marriage, but that the parties should not share equally in
the total value of the property since much of the marital
assets came to the marriage principally as gifts for Sharon
from her deceased father, George Robbin. 186 Mont. at 402,
608 P.2d at 102.
On remand, the District Court found that the net value
of the marital estate subject to distribution was $508,389,
summarized as follows:
Ranch $200,000.00
Lake place 40,000.00
Medical practice 75,089.00
Rohbin estate 104,500.00
Gold coins 32,000.00
Third Avenue East home 55,000.00
Savings account 1,800.00
TOTAL MET VALUE $508,389.00
The District Court then divided the net value of
$508,389 as follows:
To Paul
Medical practice $ 75,089.00
Husband's portion coin
collection 32,000.00
One-half Robbin estate 52,250.00
To Sharon
Ranch $ 200,000.00
House 55,000.00
One-half Robbin estate 52,250.00
Lake lot 40,000.00
Savings 1,800.00
Sharon objects to the division of marital property on
the grounds that she is required to pay Paul $52,250 out of
the sale of the assets given to her; that the award does not
take into account that sale of the ranch will require costs
of commissions and expenses; and that the valuation of
$104,500 determined by the court to be remaining from the
George Robbin's estate for division is contrary to the
evidence. Sharon maintains that the remaining estate merely
consists of stock plus a savings account and that the other
assets have been distributed or dissipated.
Contrary to Sharon's contentions, however, the District
Court in its findings carefully considered the assets of the
marital estate, including the lake place, the value of Paul's
medical practice, the sale of the Kalispell medical arts
building, and the George Robbin estate. The District Court
traced the acquisition of the assets, beginning with
contributions from George Robbin when he was alive, amounts
of property received from his estate, contributions made by
the parties during their marriage which increased to the
value of the marital assets, and the effect of appreciation.
In accordance with our remand, it determined the value of
direct gifts from George Robbin totalling $117,500, and
determined that this amount should be credited to Sharon's
favor in distributable marital assets. In distributing
property, the court was faced with the biggest single asset,
that of the ranch, which it had to consider in relation to an
equitable division. In its conclusion of law, the District
Court stated:
The Supreme Court remand also directs this court to
consider assets received by devise or inheritance
as made principally for respondent's [Sharon]
benefit. 608 P.2d at 100. However, this court
found it necessary to split the inherited assets
now remaining in the Robbin estate. The two major
assets available for distribution in the marital
estate are the ranch and the Robbin estate. An
award of both of these assets to respondent
entirely would result in an inequitable division of
the assets in view of the joint marital
contributions and appreciation factor during the
marriage. 608 P.2d at 102. The parties chose to
divide the gold coin collection equally and
Respondent did not rebut Petitioner's contention
that the remainder of the two certificates of
deposit were depleted on joint obligations. The
division of the remainder of the Robbin estate is
reflective of an equitable value allocation of the
available assets rather than a finding that the
parties share equal entitlement to the estate
assets.
It is clear that the District Court followed in the best
manner available the directions of our remand in dividing and
allocating values to the parties out of the marital estate.
The findings of fact by the District Court cannot be set
aside by us unless they are clearly erroneous, Rule 52,
Montana Rules of Civil Procedure. The conclusions of law by
the District Court are reasonable based upon its findings and
are equitable in the circumstances. We therefore affirm the
division of the marital property by the District Court.
The next issue raised by Sharon is the award of
maintenance. In the first decision of the District Court,
Paul was ordered to pay Sharon the sum of $400 per month for
a period of four years. On remand, the District Court
determined that Paul should pay Sharon maintenance in the
amount of $1,000 per month for a period of two years
commencing in July, 1986. Sharon attacks the maintenance
award upon the ground that it is insufficient; that she has
but $7,000 per year income of her own; and that she is
required to pay the mortgage payments, the delinquent taxes
and the costs of repairing the ranch house to make it
saleable, in addition to her own living expenses and that of
their child.
Yet the District Court was careful in its findings to
consider the factors set out in 5 40-4-203, MCA, regarding
maintenance. In our remand, we requested the District Court
to consider carefully the advisability of placing any time
restrictions on the duration of maintenance payments. 186
Mont. at 406, 608 P.2d 102-103.
After determining the distribution of the parties'
marital property, the District Court considered the assets
awarded and what they might eventually provide in the way of
financial security at a comfortable level for Sharon. The
District Court recognized that a certain adjustment period
would be necessary until she would be able to convert the
assets to income producing property. On that ground the
District Court determined, in consideration of her age, her
loss of professional skills, and other factors, that she
would need maintenance for two years after which the
availability of her more than adequate resources would
provide maintenance and should provide security. The
District Court stated in its conclusions that the
distribution was intended to be a means by which Sharon could
establish independent financial security fitting her station
in life without the need for indefinite maintenance which, in
the light of petitioner's job situation, could not be
assured. Since the case first came to us, it appears that
Paul's medical practice had been severely limited due to his
loss of rights at the hospital and that the possibility of an
assured income from his medical practice was "tenuous at
best. "
In resolving the problem by awarding maintenance in the
sum of $1,000 per month for two years, the District Court
took into account the earning capability of the husband, his
assets available to make those payments, and the period of
adjustment necessary for the wife to establish her own
independent security. This case illustrates the constant
problem of district courts in marital dissolutions, that is,
the shaping of the most equitable and least futile solution
for a problem created by imperfect people in imperfect
situations. We hold that the District Court acted properly
in making the maintenance award.
The final issue raised by Sharon is that the District
Court did nothing about the support payments due the wife
from the husband. The parties have four children, three
having reached majority, and the fourth child is 17 years
old, with a fairly severe learning disability. She is
probably unemployable and requires the care of her mother.
The former award to Sharon as support money for this child
was $300 per month. The evidence here indicates that the
husband has been paying Sharon $225 per month. The District
Court on remand refused to consider the issue because it was
outside the scope of our order of remand. There is no issue
therefore upon which we can act with respect to the support
money payments. Whatever rights or obligations accrue to
either of the parties arising out of the original order of
support money for the minor child are undisturbed by the
decision of the District Court on remand, and by this
Opinion.
We affirm the District Court.