NO. 87-476
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN RE THE MARRIAGE OF
THOMAS LUISI,
Petitioner and Appellant,
and
JAN J. LUISI,
Defendant and Respondent.
APPEAL FROM: The District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Swanberg, Koby & Swanberg; Gorham E. Swanberg, Great
Falls, Montana
For Respondent:
Jardine, Stephenson, Blewett & Weaver; Joseph G. Mudd,
Great Falls, Montana
Submitted on Briefs: April 21, 1988
Decided: June 9 , 1988
Filed: JUN 9 1988
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Thomas Luisi (Tom) appeals from the decree of legal
separation ordered by the District Court of the Eighth
Judicial District, Cascade County. We affirm.
The issues before the Court are:
1. Did the trial court err by excluding the remaining
portion of Jan Luisi's inheritance from the marital estate?
2. Did the trial court err by awarding Jan Luisi 50
percent of the value of Tom Luisi's military pension?
3. Did the trial court fail to accurately value and
distribute the marital estate?
4. Did the trial court err by awarding maintenance?
Tom and Jan were married on July 22, 1967 in Setauket,
New York. Shortly thereafter, Tom enlisted in the United
States Air Force.
Tom has remained in the Air Force throughout the course
of the marriage and has achieved a measure of success. At
the time of trial, he held the rank of major and earned in
excess of $46,000 per year. Tom has also acquired two
college degrees, including a Masters, and a pension valued at
$460,000 while serving his country. Tom planned on retiring
shortly after trial.
The marriage was also blessed with three children. Two
of the children were minors at the time of trial. The third
was enrolled at Montana State University. Jan spent the
majority of the twenty year marriage raising the children and
maintaining the family home.
Although Jan has started college classes, she will not
receive a degree until June, 1990. In addition, her work
experience is extremely limited. The District Court
therefore found that Jan was marginally employable until she
completed her education and ordered maintenance of $650 per
month until June, 1990. The court also excluded the
remainder of Jan's inheritance from the marital estate and
awarded her 50 percent of Tom's pension. Of the remaining
property, Tom was awarded $98,000 and Jan $52,091. This
appeal followed.
The first specification of error concerns the propriety
of excluding the remainder of Jan's inheritance from the
marital estate. Tom initially argues that the court's
failure to recognize his contribution to the maintenance of
the inheritance, and the subsequent exclusion of the
inheritance from the marital estate, were error. He also
finds fault with the court's alleged failure to adequately
delineate the assets attributable to Jan's inheritance. We
conclude both arguments are without merit.
Generally, property acquired during the course of a
marriage, belonging to either or both parties, however
acquired, is deemed to be part of the marital estate. See §
40-4-202, MCA. However, the overriding goal of Montana's
property division statute is equity. The legislature has
therefore provided that in the case of property acquired by
gift, bequest, devise, or descent, the court shall, inter
alia, consider "the extent to which [the non-acquiring
spouse's] contributions have facilitated the maintenance of
[the] property" so acquired. Section 40-4-202 (1)(b). In the
absence of a significant contribution on the part of the
non-acquiring spouse, the court remains free to exclude such
assets or property from the marital estate. See Marriage of
Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101; Marriage
of Jorgensen (1979), 180 Mont. 294, 299, 590 P.2d 606, 610.
Although Tom testified that he contributed to the
maintenance of Jan's inheritance, the evidence demonstrates
the contrary. Jan received, by way of gifts and inheritance,
approximately S214,OOO from her parents during the late
1970's. However, a significant portion of the inheritance
has been spent.
As a result of Tom's failure to provide Jan with a
household budget sufficient to adequately feed, cloth and
shelter the family, Jan was forced to use her inheritance to
meet usual expenses. Tom also failed to provide Jan with any
support during the pendency of this proceeding. It is
apparent that such conduct is not conducive to the
maintenance of the inheritance. We therefore conclude that
the District Court correctly excluded the remainder of Jan's
inheritance from the marital estate.
In the alternative, Tom argues that the court failed to
adequately identify property subject to the inheritance
exclusion. Specifically, that the court failed to make a
finding of fact listing the inheritance assets. While we
agree that a separate finding of fact specifically listing
the property derived from Jan's inheritance is the preferred
method of excluding property in such cases, we do not find
the failure to make such a finding to be reversible error in
this instance.
Following the presentation of extensive evidence on the
extent, value and source of property held by the parties, the
District Court made findings delineating and distributing the
property contained within the marital estate. The court also
made detailed findings distributing personal property in
conformance with a stipulation between the parties and found
that $124,666.13 remained of Jan's inheritance. In light of
the court's detailed findings, the assets the court deemed to
be subject to the inheritance exclusion are clearly
discernible. We therefore find no error.
The second specification of error concerns the equal
division of the present value of Tom's military pension. The
crux of Tom's argument is that it is inequitable to exclude
the income generating property contained within Jan's
remaining inheritance and also award Jan a 50 percent
interest in Tom's pension. However, it is not the function
of this Court to conduct de novo determinations of equity.
Absent a clear error in the findings, the award of property
made by the District Court must be upheld. Rule 52(a),
M.R.Civ.P.; In Re Marriage of Loegering (Mont. 1984), 689
P.2d 260, 41 St.Rep. 1892; Grenfell v. Grenfell (1979), 182
Mont. 229, 596 P.2d 205.
Tom and Jan's marriage spanned 19 of the 20 years the
military pension was accruing. During that time, Jan was
foregoing employment, and the attendant retirement benefits,
in order to raise the couple's children and maintain the
family home. In addition, Jan's contribution as a homemaker
helped Tom acquire two college degrees and a significantly
higher earning capacity than her own. Under such
circumstances, we do not find the equal division of Tom's
pension to be a clear abuse of discretion. See, e.g. In Re
Marriage of Kecskes (Mont. 1984), 683 P.2d 478, 41 St.Rep.
1170.
The third specification error alleges that the District
Court improperly valued and distributed the marital estate.
However, Tom in essence, merely attaches his proposed
valuation on property, the majority of which the court
determined to be subject to the inheritance exclusion, and
argues that the court failed to adequately value and
distribute the property. In light of our holding on the
identification of property contained within Jan's
inheritance, we limit our discussion to the issue of
valuation.
Generally, the District Court is vested with wide
discretion in the performance of its duty to achieve an
equitable distribution of property in dissolution
proceedings. Contrary to Tom's position, the court is not
bound by the opinion of a particular party or expert.
Rather, the court remains free, in its discretion, to adopt
any reasonable valuation of property which is supported by
the record. See In Re Marriage of Hurly (Mont. 1986), 721
P.2d 1279, 1285, 43 St.Rep. 1271, 1278; In Re ~arriage of
Garst (1983), 206 Mont. 89, 669 P.2d 1063.
Upon review of the record, we find that the valuations
employed by the District Court are supported by substantial
credible evidence. We therefore affirm the District Court's
valuation and distribution of the marital estate.
Finally, it is argued that the award of maintenance was
reversible error. We disagree.
Generally, the award of maintenance is not favored in
states, such as Montana, which have adopted the Uniform
Marriage and Divorce Act. The intent of the drafters, as
demonstrated by the Commission Comments to 5 40-4-203, MCA,
indicates a desire to "encourage the court to provide for the
financial needs of the spouses by property disposition rather
than an award of maintenance." Commission Comments, Montana
Code Annotated Annotations, Vol. 5, pg. 126; see also In Re
Marriage of Johnsrud (1977), 181 Mont. 544, 572 ~ . 2 d902.
However, the practical reality of the myriad of diverse
factual situations confronted by district courts often
precludes strict adherence to the policy regarding
maintenance while achieving the overriding goal of an
equitable dissolution. Consequently, the court must first
equitably distribute the marital property. Any additional
needs of a spouse are then addressed through maintenance.
Johnsrud, supra.
As a condition precedent to an award of maintenance, the
court must find that the spouse seeking maintenance "lacks
sufficient property to provide for his reasonable needs and
is unable to support himself through appropriate employment."
Section 40-4-203 (I), MCA; see also In Re Marriage of Schenck
(Mont. 1984), 692 P.2d 6, 41 St.Rep. 2137; In Re Marriage of
Hilt (Mont. 1984), 679 P.2d 783, 41 St.Rep. 604. Although
the District Court specifically found that Jan satisfied the
statutory criteria, Tom argues that such findings were error.
Specifically that Jan's inheritance provides sufficient
income producing property and that Jan can find appropriate
employment to meet her reasonable needs.
We yet again note that this Court's function on appeal
is limited to a determination of whether the findings of the
court are clearly erroneous. In contrast, the discretion
vested in the District Court is necessarily as broad as ours
is limited. In Re Marriage of Tow (Mont. 1987), 748 P.2d
440, 44 St.Rep. 2154. Given the limited duration of the
maintenance award, we do not find the District Court clearly
in error.
The term "sufficient property," as used in § 40-4-203,
MCA, has been interpreted by this Court to mean income
producing property. See Tow, supra; Bowman v. Bowman (Mont.
1981), 633 P.2d 1198, 38 St.Rep. 1515. In addition, "this
Court has held that 'appropriate employment' ... must be
determined with relation to the standard of living achieved
by the parties during the marriage." In Re Marriage of
Madson (1978), 180 Mont. 220, 590 P.2d 110. Section
40-4-203, MCA, when read in conjunction with the
construction given it by this Court, mandates that an award
of maintenance is appropriate when a spouse is unable achieve
a similar standard of living after dissolution, and the other
spouse is able to meet his or her own needs as well as pay
maintenance.
In the instant case, Jan testified that her necessary
monthly living expenses amounted to $1,492. However,
substantial credible evidence demonstrated that the assets
awarded to Jan, including annuities held in trust for the
couple's children and a final installment from her trust,
would produce $761.11 per month. In addition, the District
Court determined that Jan was only marginably employable
until she completed her education. In light of Tom's earning
capacity and Jan's inability to support herself, the award of
maintenance until such time as Jan completes her college
degree is clearly within the court's discretion. See, e.g.
In Re Marriage of Voelkel (Mont. 1987), 734 P.2d 217, 44
St.Rep. 538; In Re Marriage of Singer (Mont. 1986), 721 P.2d
755, 43 St.Rep. 1242; and Bowman, supra.
The judgment of the District C o q t is affirmed.