No. 89-304
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1989
I N R E T H E MARRIAGE O F
RONALD L . SKINNER,
P e t i t i o n e r and A p p e l l a n t ,
and
LUCINDA G . SKINNER,
R e s p o n d e n t and R e s p o n d e n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t
I n and f o r t h e C o u n t y of M i s s o u l a
T h e H o n o r a b l e J a m e s W h e e l i s , Judqe p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
J a m e s P. O t B r i e n , O ' B r i e n Law O f f i c e s ,
Missoula, Montana
For R e s p o n d e n t :
1
- P a u l e t t e C . Ferguson, M i s s o u l a , M o n t a n a
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S u b m i t t e d on B r i e f s : October 20, 1989
Decided: December 1 9 , 1989
L
Clerk
Justice John Conway Harrison delivered the Opinion of the
Court.
Ronald Skinner appeals the decision of the District
Court of the Fourth Judicial District, Missoula County,
awarding his former wife, Lucinda Skinner, property,
maintenance payments and attorney's fees and requiring him to
pay all marital debts. We affirm.
The appellant presents the following issues for review:
1. Did the District Court err in failing
to make adequate findings of fact before
dividing the marital property?
2. Did the District Court err in
awarding maintenance to the respondent in
the amount of $300/month for three years?
3. Did the District Court err in
awarding attorney's fees to the
respondent?
Ronald and Lucinda Skinner began living together in
mid-1980 and on December 5, 1982 the couple married. This
was the second marriage for both and each had children from
previous marriages, but no children were born of this union.
Both parties are 40-year-old high school graduates with some
college education.
Throughout the marriage Ronald has been employed as a
millwright at Stone Container's Frenchtown plant. He was
making approximately $14.50 per hour when the couple wed and
at the time of these proceedings his wage was $17.65 per
hour. Lucinda worked at various jobs during the marriage but
at the time of dissolution was making $6.32 per hour as a lab
assistant at Missoula Community Hospital where she has been
employed since 1984. At one time Lucinda was a maintenance
enqineer for Champion International but had quit, at Ronald's
request, in order to work at the couple's ranch and be
available to Ronald's children and her daughter.
Prior to the marriage Ron bought property, known as the
"Kidd property," which was sold and money from sale of the
Kidd property was used to purchase the "Hoover property" in
1980. The Hoover property, located just outside of
Stevensville, Montana, became the marital residence. When
the couple separated in 1986, Ronald remained at the marital
home, while Lucinda rented an apartment in Stevensville.
Ronald Skinner petitioned for dissolution in June,
1987. Following a hearing, the District Court entered a
Decree of Dissolution on November 2, 1987, but reserved all
other issues for final hearing. A hearing on the remaining
issues was held January 14, 1988 from which the court made
Findings of Fact and Conclusions of Law, and entered an Order
on June 28, 1988. A month later, on Ronald's motion, the
court granted a new trial limited to new evidence. After the
new trial in July, 1988, Lucinda moved for a stay in the
proceedings in order to present additional evidence. The
District Court granted the stay and additional evidence was
taken on November 18, 1988. Based on the evidence from the
additional hearings, the District Court amended its earlier
Findings of Fact, Conclusions of Law and Order and filed. the
amended version on February 6, 1989.
During the course of the proceedings, Ronald seriously
injured his left hand while replacing a window in his
girlfriend's house and did not work from February 27, 1988 to
October 3, 1988. While he was convalescing Ronald received
accident and sickness insurance payments of approximately
$950 per month, but received full pay and benefits upon his
return to work.
Before the injury Ronald moved from the marital home
and moved in with his girlfriend. Also pre-injury, Ronald
stopped making payments on the marital property (the Hoover
property) and withheld this information from the District
Court at the January 14, 1988 hearing. This non-payment
eventually caused the property to be foreclosed upon and sold
at sheriff ' s sale. Ronald did not attempt to sell- the
property prior to the foreclosure.
The marital estate had also been dissipated by Ronald's
sale of certain livestock after the parties separated, in
violation of the court's restraining order. Ronald deposited
most of these proceeds in his own acco.unt,but did put $5,000
from the sale of cattle into a trust account in recognition
of Lucinda's share. Additionally, Ronald deliberately misled
the District Court regarding the sale of a bull. Ronald also
deposited in his own account the entire amount of the
couple's refund from their joint Federal and State income tax
returns. Ronald also deposited $5,000 of marital monies into
a savings account in the name of the girlfriend he now lives
with.
During the marriage, Lucinda inherited approximately
$19,000 from her mother's estate. Some of this money was
invested in stocks and some was placed in a Kemper account on
which both parties wrote checks. The majority of the
inheritance was used up during the marriage, but the
remaining $5,546 is now held jointly by Lucinda and her
daughter.
Before discussing the issues presented on appeal, we
will address the problem of bifurcation of issues in a
dissolution proceeding. Section 40-4-104, MCA, provides:
(1) The district court shall enter a
decree of dissolution of marriage if:
(dl to the extent it has jurisdiction to
do so, the court has considered,
approved, or made provision for child
custody, the support of any child
entitled to support, the maintenance of
either spouse, and the disposition of
property.
In this case we note the District Court entered a
decree of dissolution of the marriage on November 2, 1987,
and it was not until February 6, 1989 that the District Court
filed its final judgment relating to the disposition of the
marital property. The requirement of S 40-4-104(1), MCA, was
not met. The District Co,urt should have entered judgment
relating to the disposition of marital property before
entering the decree of dissolution of the marriage.
Although we will not find reversible error in this
instance, we call to the attention of the bench and bar the
necessity to comply with the above statute.
In the past, before the amendment of 5 40-4-104(1),
MCA, in 1985, this Court notes that too often appeals were
filed involving a delay of months, and occasionally years,
between the decree of dissolution and the final judgment
relating to child custody, support of any child entitled to
support, the maintenance of either spouse and the disposition
of property. The delays that occurred were often intolerable
resulting in a complete failure of the administration of
justice. In re Marriage of Krause (1982), 200 Mont. 368, 654
P.2d 963; and In re Marriage of Loegering (1984), 212 Mont.
499, 689 P.2d 260.
Along with the above-noted statute, the court should
also consider the provisions of 5 40-4-201(1), MCA, in
dissolution cases.
Issue 1. Did the District Court err in
failing to make adequate findings of fact
before dividing the marital property?
Division of marital property is governed by statute:
(1) In a proceeding for
dissolution of a marriage, legal
separation, or division of property
following a decree of dissolution of
marriage or legal separation by a court
which lacked personal jurisdiction over
the absent spouse or lacked jurisdiction
to divide the property, the court,
without regard to marital misconduct,
shall, and in a proceeding for legal
separation may, finally equitably
apportion between the parties the
property and assets belonging to either
or both, however and whenever acquired
and whether the title thereto is in the
name of the husband or wife or both. In
making apportionment, the court shall
consider the duration of the marriage and
prior marriage of either party; the age,
health, station, occupation, amount and
sources of income, vocational skills,
employability, estate, liabilities, and
needs of each or' the parties; custodial
provisions; whether the apportionment is
in lieu of or in addition to maintenance;
and the opportunity of each for future
acquisition of capital assets and income.
The court shall also consider the
contribution or dissipation of value of
the respective estates and the
contribution of a spouse as a homemaker
or to the family unit. In dividing
property acquired prior to the marriage;
property acquired by gift, bequest,
devise, or descent; property acquired in
exchange for property acquired before the
marriage or in exchange for property
acquired by gift, bequest, devise or
descent; the increased value of property
acquired prior to marriage; and property
acquired by a spouse after a decree of
legal separation, the court shall
consider those contributions of the other
spouse to the marriage, including:
(a) the nonmonetary contribution
of a homemaker;
(b) the extent to which such
contributions have facilitated the
maintenance of this property; and
(c) whether or not the property
division serves as an alternative to
maintenance arrangements.
Section 40-4-202 (1), MCA.
As this statute and Montana case law makes clear,
"Equity, not equality , should guide the District Court ' s
discretion in dividing the marital estate." In re Marriage
of Fitzmorris (Mont. 1987), 745 P.2d 353, 354, 44 St.Rep.
1809, 1811.
The District Court holds far-reaching discretion in
dividing marital property. In re Marriage of Dirnberger
(Mont. 1989), 773 P.2d 330, 332, 46 St.Rep. 898, 900 (quoting
In re Marriage of Stewart (Mont. 1988), 757 P.2d 765, 767, 45
St.Rep. 850, 852, and In re Marriage of Watson (Mont. 1987),
739 P.2d 951, 954, 44 St.Rep. 1167, 1170). Furthermore, the
standard of review for property division is that the District
Court's judgment, when based upon substantial credible
evidence, will not be altered unless a clear abuse of
discretion is shown. Id.
Ronald argues that the District Court's findings and
conclusions were insufficient for that court to determine the
parties' net worth in order to make an equitable division of
the marital property. A district court is obligated to make
a finding of net worth before dividing the marital estate.
Schultz v. Schultz (1980), 188 Mont. 363, 365, 613 P.2d 1022,
1024. Such finding of net worth, however, need not be stated
in a finding of fact as an exact amount. It is only
necessary that "the cumulative effect of the findings can be
equivalent to a finding of net worth when relevant factors
are considered and adequately set forth by the trial court."
In re Marriage of Hunter (19821, 196 Mont. 235, 245, 639 P.2d
489, 494.
Ronald complains that of the court's 60 plus finding
and conclusions in the original Findings of Fact and
Conclusions of Law (which were incorporated into the amended
version), only five dealt with the parties' liability.
Ronald contends that these few findings concerning liability
were inadequate to determine net worth and, thus, inadequate
to make an equitable division of property. Having reviewed
the Findings of Fact and Conclusions of Law, filed after both
the January 14, 1988 and November 18, 1988 hearings, we hold
that the findings provide a sound foundation for the court's
judgment. As we have previously noted:
This foundation need not consist of a
multitude of evidentiary facts, but the
findings of fact must set forth a
recordation of the essential and
determining facts upon which the court
rested its conclusions of law and without
which the judgment would lack support.
Stratford v. Stratford (Mont. 1981), 631 P.2d 296, 298, 38
St.Rep. 1093, 1095.
In the case at bar, the District Court, while not
making a totally exhaustive list, did set forth the essential
and determining facts from which it drew conclusions of law
that supported its judgment. The few findings that deal with
the partiesq liabilities are adequate, and, taken together
with the other findings and conclusions, the parties' net
worth is capable of being determined. We hold that there was
no abuse of discretion.
Furthermore, we hold that the District Court equitably
divided the couple's property, within the requirements of
5 40-4-202, MCA, pertinent to the situation: Ronald, in
defiance of the court's restraining order dissipated the
marital estate; there was extensive testimony regarding
assets and liabilities of the parties, with the court's
findings detailed in the findings and conclusions; the
contribution to the marriage of both parties were considered;
the disparity between the real income and earning potential
of Ronald and Lucinda were noted; and the obligation to
support children from prior marriages was set out. The
findings of fact and conclusions of law support the District
Court's judgment, and we conclude an equitable distribution
was made.
Issue 2. Did the District Court err in
awarding maintenance to the respondent in
the amount of $300/month for three years?
Section 40-4-203, MCA, sets out the guidelines for
awarding a spouse maintenance in a dissolution proceeding.
Maintenance may only be awarded if the spouse seeking
maintenance lacks sufficient property to provide for that
spouse's reasonable needs. Section 40-4-203(1), MCA. The
statute also mandates that the trial court consider relevant
facts of the situation including the financial resources of
the spouse seeking maintenance, the ability of the
maintenance paying spouse to meet his own needs, and the
standard of living established during the marriage. Section
40-4-203 (2), MCA.
In reviewing the award of maintenance, we once again
note the latitude accorded the trial court:
An award of maintenance is related
only to the needs of the spouse seeking
maintenance . .
. The District Court has
wide discretion in the determination of
maintenance awards, and that discretion
is not to be disturbed unless clearly
erroneous. (Citations omitted.)
In re Marriage of Aanenson (1979), 183 Mont. 229, 235, 598
P.2d 1120, 1123.
The District Court made a specific finding that Lucinda
needs the maintenance payments to meet her monthly expenses
and Ronald is capable of making the payment. There is
substantial evidence in the record to support this finding.
Ronald makes over $35,000 per year while Lucinda is paid much
less. Ronald also has more disposable income since he no
longer makes land payments and does not pay rent since he now
lives with his girlfriend. Ronald asserts that Lucinda
received sufficient property in the property division to
support herself. However, the court awarded Lucinda, based
on her contributions, only twenty percent of the value of the
property.
In establishing the amount and duration of maintenance
it is appropriate for the District Court to consider whether
the assets awarded in the property division consume or
produce income and whether employment is appropriate. Bowman
v. Bowman (Mont. 1981), 633 P.2d 1198, 1200-1201, 38 St.Rep.
1515, 1518. Additionally, "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, 224-225, 590 P.2d 110, 112.
The property awarded Lucinda is not income producing
nor does she make enough money through her employment to
maintain her former standard of living. There is substantial
evidence to support the District Court's decision.
Issue 3. Did the District Court err in
awarding attorney's fees to the
respondent?
Attorney's fees in dissolution cases are addressed in
§ 40-4-110, MCA, which provides:
Costs -- attorney's fees. The court from
time to time, after considering the
financial resources of both parties, may
order a party to pay a reasonable amount
for the cost to the other party of
maintaining or defending any proceeding
under chapters 1 and 4 of this title and
for attorney's fees, including sums for
legal services rendered and costs
incurred prior to the commencement of the
proceeding or after entry of judgment.
The court may order that the amount be
paid directly to the attorney, who may
enforce the order in his name.
In interpreting this statute, this Court has found:
"Traditionally, a showing of necessity
has been a condition precedent to the
exercise of the court's discretion to
award attorney fees. Flhitman v. Whitman
(1974), 164 Mont. 124, 519 P.2d 966. But
the lower court's discretion in the
matter will not be disturbed if
substantial evidence is found in the
record to support the award." Kaasa v.
Kaasa (1979), Mont., 591 P.2d 1110, 1114,
36 St.Rep. 425, 430.
"Here, the trial court was well aware of
the parties' financial situations. It
did not abuse its discretion in making an
award of reasonable attorney fees, based
on necessity. -
Houtchens v. Houtchens
(1979), 181 Mont. 7 0 , 592 P.2d 1 5 8 , 36
St.Rep. 501, 505." Bailey v. Bailey
(1979), Mont., 603 P.2d 259, 261, 36
Carr v. Carr ( 1 9 8 3 ) , 205 Mont. 269, 272-73, 667 P.2d 425,
427.
I n t h e c a s e a t b a r , t h e r e was g r e a t f i n a n c i a l d i s p a r i t y
between the parties. As discussed above, Ronald makes
approximately three times Ilucindals salary, and his
d i s p o s a b l e income h a s i n c r e a s e d s i n c e t h e p a r t i e s d i v o r c e d .
Based on t h i s evidence, the trial c o u r t d i d n o t abuse i t s
d i s c r e t i o n i n a w a r d i n g Lucinda a t t o r n e y ' s f e e s .
W a f f i r m t h e D i s t r i c t C o u r t ' s judgment.
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W concur:
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