IN THE SUPREME COURT OF THE STATE OF MONTANA
IN RE THE PJARRIAGE OF
CHARLES R. ANDERSON,
Petitioner and Respondent,
AND
LINDA L . ANDERSON,
Respondent and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mulroney, Delaney & Scott; P. Mars Scott, Missoula,
Montana
For Respondent:
Mark A. Vucurovich, Butte, Montana
Submitted on Briefs: Sept. 25, 1-987
Decided: January 8, 1988
Filed:
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-I 75"
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
This case concerns a marriage dissolution. The issues
on appeal concern the distribution of the marital estate,
maintenance, and child support. We affirm issues 1, 3 and 4
and reverse issue 2.
The District Court of the Second Judicial District
entered its final decree on February 13, 1987. The wife,
Linda L. Anderson, received property valued at $120,222.00,
the husband, Charles R. Anderson !Rick), received property
worth $108,724.00. Rick was given responsibility for
$83,146.00 of the marital debts, Linda was given
responsibility for $30,000. Rick was ordered to pay $350 a
month per child for child support. In addition, he is
primarily responsible for medical and dental services for the
children and must keep them as beneficiaries of existing life
insurance policies.
Linda presents these issues for review:
(1) Did the District Court err by refusing to award
rehabilitative maintenance to the wife?
(2) Did the District Court err in setting child support
payments at $700.00 a month rather than $900.00 as requested
by the wife?
(3) Did the District Court err in inventorying, valuing
and distributing the marital estate in the following
particulars:
(a) the valuation of the clothing store "Linda's" and
ordering Linda to be solely responsible for its debts?
(b) failing to identify the cash value of life insur-
ance policies in the division of marital property?
(c) not ordering the Georgetown bake property sold and
the proceeds split between the parties?
(d) valuing the Bayard Street property?
(4) Did the District Court err in refusing to award
attorney fees and costs to Linda?
ISSUE I
The parties were married on September 13, 1969. Two
children were born of the marriage, both are minors. The son
is 16 years old and the daughter is 15 years of age. The
parties have stipulated to joint custody of the children,
with Linda as the primary custodian. Rick received a law
degree from the University of Montana. He is currently a
partner in a law firm. His earnings in 1986 were $117,000,
including bonuses. Linda has a high school education and is
currently living in Seattle where she is employed by
Nordstroms part time as a salesclerk earning $7,824.00
annually.
During the marriage and while Rick was in school both
parties were employed outside the home in various positions.
At one point Linda was the owner and operator of two retail
clothing stores, "Linda's" and "Matty's Kids". The parties
still own "Linda's".
Linda contends that the District Court erred when it
refused to award her $2,000.00 a month for five years as
rehabilitative maintenance in order to offset Rick's greater
future earning capacity, compensate Linda for the high stan-
dard of living achieved by the couple and prevent unjust
enrichment to Rick.
The decision to award maintenance is governed by 5
40-4-203, MCA, which provides:
(1) In a proceeding for dissolution of mar-
riage 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 mainte-
nance 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;
(d) the duration of the marriage;
(e) 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.
The standard of review for awarding maintenance was articu-
lated in In re the Marriage of Aanenson (1979), 183 Mont.
229, 235, 598 P.2d 1120, 1123. "The District Court has wide
discretion in the determination of maintenance awards, and
that discretion is not to be disturbed unless clearly
erroneous." Linda's claim for maintenance fails to meet the
statutory requirements. Linda has received a substantial
portion of the marital estate, including income producing
property and her business, "Linda's". The District Court
also found that Linda was able to support herself through
appropriate employment. Thus, the District Court did not
abuse its discretion when it refused to award maintenance.
ISSUE I1
Linda has contended that the court erred in setting the
amount of child support. The District Court awarded Linda
$700 a month instead of $900 a month as she requested. The
award made by the District Court will not be disturbed unless
there is clear abuse of discretion resulting in substantial
injustice. In re Marriage of Alt, (Mont. 1985), 708 P.2d
258, 42 St.Rep. 1621. Section 40-4-204(1), MCA, provides the
statutory guidelines for setting appropriate child support
obligations:
(1) In a proceeding for dissolution of marriage,
legal separation, maintenance, or child support,
the court may order either or both parents owing a
duty of support to a child to pay an amount.
reasonable or necessary for his support, without
regard to marital misconduct, after considering all
relevant factors including:
(a) the financial resources of the child;
(b) the financial resources of the custodial
parent;
(c) the standard of living the child would
have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of
the child and his educational needs;
(e) the financial resources and needs of the
noncustodial parent; and
(f) for the purposes of determining a minimum
amount for support, the amount received by children
under the AFDC program, as defined in 53-2-702.
Here the amount arrived at by the District Court disregards
two important statutory factors, the standard of living the
children would have enjoyed had the marriage not been
dissolved and the financial resources and needs of the
noncustodial parent. The sum awarded by the District Court
is not commensurate with Rick's financial resources nor with
the standard of living enjoyed by the children prior to
dissolution. Upholding the District Court's award would
result in substantial injustice to the children who are
entitled to share in the high standard of living achieved by
their father. Linda documented the children's monthly needs
and requested $900.00 a month, which is less than would be
required to pay under the Carlson formula calculations. In
re Marriage of Carlson (Mont. 1984), 693 P.2d 496, 500, 41
St.Rep. 2419, 2423. We reverse on this issue and remand to
the District Court with instructions to grant $900.00 a month
for child support.
ISSUE 1x1
Linda also maintains that the District Court erred in
valuing several items of property. The standard for review-
ing a District Court's division of marital property was
articulated in In re the Marriage of Hall (Mont. 1987) , 740
P.2d 684, 686, 44 St.Rep. 1321, 1323:
We have concluded that in a property distribution
review in marriage dissolution, this court will
reverse a district court only upon a showing that
the district court has acted arbitrarily or has
committed a clear abuse of discretion, resulting in
either instance in substantial injustice.
(a) The first item of property, "Linda's", was valued at
$28,642 with an accompanying debt of $30,000. Linda was
awarded the store and was made responsible for it's debts.
As the District Court stated "the value of 'Linda's' was
troublesome." Though the valuation was difficult and con-
flicting evidence was presented, the figures arrived at by
the District Court are supported by evidence. The accountant
valued the business at $73,000 in 1985. In 1986 the store
suffered financially. Jolene Morton's testimony about
insufficient inventory provided some evidence that Linda was
responsible for the store's present condition. There is no
clear abuse of discretion resulting in substantial injustice,
thus, we will uphold the District Court.
/b) The second items are insurance policies. Linda
claims that the District Court erred when it failed to ac-
count for the cash value of the life insurance policies in
the property distribution. The District Court did make a
finding concerning the policies: "He shall also keep the
children as beneficiaries on the existing life insurance
policies." (Finding of Fact No. 3). As we held in In re the
Marriage of Larson, (1982), 200 Mont. 134, 139, 649 P.2d
1351, 1.354, "Item-by-item findings are not required in
property division cases, but findings nevertheless must be
sufficiently adequate to ensure that this Court need not
succumb to speculation while assessing the conscientiousness
or reasonableness of the District Court's judgment." Here,
we are able to assess the reasonableness of the District
Court's judgment. The District Court provided for
disposition of the life insurance policies and did so within
it's discretion.
(c) Linda also contests the valuation of the Georgetown
Lake property. The District Court valued the property at
$25,000 based upon recent sales of similar property as
testified to by Rick. The figure arrived at by the District
Court is supported by the evidence. There is no abuse of
discretion.
(dl Finally, Linda asserts that the District Court
erred in valuing the Rayard Street property. Once again, the
figure arrived at by the District Court was supported by
evidence. Rick testified as to his equity in the Bayard
property. Linda never presented any evidence to contradict
this testimony. The District Court did not exceed its
discretion in adopting this value.
ISSUE IV
The final issue on appeal concerns the District Court's
refusal to grant Linda attorney fees. Section 40-4-110, MCA,
MCA, governs awards of attorney fees in dissolution actions.
This Court has held that the award of fees is permissive
under this statute. In re Marriage of Obergfell, (Mont.
1985), 708 P.2d 561, 4 2 St.Rep. 1 4 1 4 . The standard of review
is whether the District Court abused its discretion in refus-
ing to award such fees. In re Marriage of Gallinger (Mont.
1986), 719 P.2d 777, 4 3 St.Rep. 976. The District Court did
not exceed its discretion when it refused to grant Linda
attorney fees on the grounds that she received more than half
the marital estate including income producing property and
that she is capable of supporting herself through appropriate
employment.
We affirm on all issues except issue 2 which we reverse
and remand to the District Court for entry of a decree in
conformance with this opinion.
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/ Justices