In Re the Marriage of Jones

No. 86-298
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

IN RE THE MARRIAGE OF
DOROTHY AYJNE JONES,
Petitioner and R.espondent,
and
ALFRED LEROY JONES,
Respondent and Appellant.

APPEAL FROM: District Court of the Eighteenth ~udicialDistrict,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Morrow, Sedivy & Bennett; J. H. Morrow, Rozeman,
Montana

For Respondent:
Landoe, Brown, Planalp, Komrners & Johnstone; James A.
Johnstone, Bozeman, Montana

Submitted on Briefs: Oct. 23, 1986
Decided: January 8, 1987

Filed: JAN 6 - 1:33
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Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.

Respondent Alfred Jones appeals the judgment entered by
the Eighteenth Judicial District Court in the dissolution
action between respondent and petitioner Dorothy Jones.
Respondent appeals the property distribution. and maintenance
award in favor of petitioner. We affirm.
The parties were married on September 27, 1964, in Reno,
Nevada. Alfred is now 48 years of age; Dorothy is 42. The
children of the marriage have reached the age of majority and.
are self-supporting. Alfred has been employed as a store
manager of tire shops throughout the pacific northwest during
the duration of the marriage. The past eight years he has
been the store manager for Whalen Tire Shop in Bozeman,
Montana. Alfred's salary is $2500 a month, plus he is
covered by health and life insurance, and the company
supplies him with a car for personal and business use. In
addition, he has received yearly bonuses ranging from $4000
to $8000, and has a vested interest in a profit sharing plan
and a retirement pension plan with Whalen Tire Shop.
Dorothy has experience in light bookkeeping and
secretarial work. Dorothy's most recent employment was with
the Gallatin County Health Department at a net monthly salary
of $769.
Dorothy filed a petition for dissolution on May 8, 1985,
and moved out of the family home. On July 8, 1985, the
District Court entered the decree of dissolution, reserving
property distribution and maintenance award until a later
date. Alfred was ordered to make Dorothy's monthly car
payment and provide $100 monthly maintenance pending final
resolution of the case. The parties' home was sold, with
Dorothy and Alfred each taking $1500 and the remainder,
approximately $45,000, being placed in an account.
Dorothy quit her secretarial job in November, 1985,
desiring to move to Spokane. She filed a motion for
distribution of funds, requesting $4500 be distributed to her
from the home sale proceeds to fund her move to Spokane and
provide living expenses while she searched for employment.
The court granted Dorothy's motion for distribution of funds.
On December 2, 1985, the issues of maintenance and
property distribution were heard. The District Court entered
its findings of fact and conclusions of law on these matters
January 8, 1986. Dorothy was awarded $400 monthly
maintenance for a period of 5 years, half of which was to be
placed in an individual retirement account (IRA). After five
years maintenance would be reduced to $200 with all amounts
to be placed in an IRA. The property was divided as follows:
ASSETS : VALUE TO WHOM DISTRIBUTED
HUSBAND WIFE
Furniture
Furniture
Blazer
Riviera
Trailer
Tractor
Insurance
Stock
Pension Plan
Profit Sharing
Plan
Cash from sale
of home 4,500.00 4,500.00
Inheritance Undetermined Undetermined
Balance of home
sale
Leroy IRA
Dorothy IRA
Home furniture
P.E.R.S.
GROSS
LIABILITIES VALUE
-- TO WHOM DISTRIBUTED
HUSBAND WIFE
First Bank $ 3,766.00 $ 3,766.00
First Security 1,578.00 1,578.00
First Bank 3,480.00 3,480.00
Visa 2,800.00 2,800.00
TOTAL DEBT $ 11,624.00 ($ 11,624.00)
NET ASSET $102,272.15
NET DISTRIBUTION

Both parties filed motions to amend the court's findings
of fact and conclusions of law. Alfred objected to the
property valuations adopted by the court and also requested
that the maintenance award be eliminated. Dorothy objected
to the $4500 furniture award believing such furniture was
listed twice as an asset thereby overstating her actual.
award. Dorothy also requested that the maintenance award be
amended to eliminate the requirement that $200 be invested in
an IRA each month.
Following oral argument on the motions to amend, the
District Court entered its order amending the maintenance
award to eliminate the IRA requirement, hut adding a
provision that maintenance would terminate should Dorothy
remarry or cohabit with a man for a period in excess of two
months. The court affirmed. its judgment in all other
respects. Alfred appeals and raises the following issues:
1) Did the District Court abuse its discretion in
awarding Dorothy maintenance for a period of ten years?
2) Did the District Court abuse its discretion in
making the property distribution?

Alfred contends Dorothy is not entitled to maintenance
because there are no minor children to support, she is in
good health and capable of working, and she received a
substantial amount of property from the marital estate.
Section 40-4-203, MCA, addresses the question of maintenance
and provides for a maintenance award where the recipient
spouse is unable to support herself and lacks sufficient
property to provide for reasonable needs. Relevant factors
in making a maintenance award are: 1) the financial
resources of the recipient spouse; 2) the time necessary to
acquire sufficient education to find appropriate employment;
3) the standard of living established during the marriage; 4)
the duration of the marriage; 5) the age and physical and
emotional condition of the recipient spouse; 6) the ability
of the spouse providing the maintenance to meet his own
needs.
A review of the record makes it clear the District Court
considered all the relevant factors listed in S 40-4-203,
MCA, in determining the maintenance award. Alfred has
substantial income and is capable of paying $400 monthlv
maintenance. Dorothy has moved to Spokane and is
temporarily unemployed. Based upon her training and
education, the job Dorothy obtains will not supply adequate
income to meet the standard of living she enjoyed during the
marriage. As noted by the District Court, Dorothy worked in
the home and raised children for 20 years in addition to
holding secretarial jobs to supplement the family income.
The District Court has broad discretion in determining
maintenance awards and this Court will not reverse the
District Court unless clearly erroneous. In Re the Marriage
of Schenck (Mont. 1984), 6 9 2 P.2d 6, 41 St.Fep. 2137. We
find no abuse of discretion by the District Court in making
the monthly maintenance award.
The next issue is whether the property distribution was
equitable. Alfred contends the District Court erred in
speculating as to the parties' future income and ability to
acquire property. This is incorrect. Section 40-4-202, MCA,
specifically states the court shall consider "the opportunity
of each for future acquisition of capital assets and income."
In this instance, the District Court properly considered the
parties' potential future incomes, as well as insurance and
IRA protections.
The District Court correctly valued Alfred's retirement
and profit sharing plans based on the evidence before it.
The court's computation placed an up to date value on these
plans rather than the 1984 figure submitted by Alfred. We
find no error.
The District Court's findings of fact reveal that the
factors listed in 5 40-4-202 (I), MCA, were considered by the
court in making the distribution. The property distribution
awarded an identical net amount to each party. The record.
clearly supports the property distribution.
The valuations adopted by the District Court regarding
the parties' furniture, vehicles, and other items, were those
submitted by Dorothy in her proposed findings of fact.
Alfred disputed several of Dorothy's valuations yet he failed
to place a value on these items in his proposed findings of
fact. The District Court adopted Dorothy's valuations
finding them to be more reasonable. We will not set aside
the District Court's findings of fact unless clearly
 erroneous. There is substantial credible evidence supporting

the valuations listed in the property distribution.

The record reveals the District Court judgment to be

sound in all respects. Affirmed.

We Concur:
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