No. 88-06
I N THE SUPREME COURT OF THE STATE OF MONTANA
1989
I N RE THE MARRIAGE O F
GERALD E . HUGHES,
P e t i t i o n e r and A p p e l l a n t ,
and
AUDREY ANN HUGHES,
R e s p o n d e n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e N i n 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 G l a c i e r ,
T h e H o n o r a b l e R.D. M c P h i l l i p s , J u d g e p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Randy K. Dix, Helena, Montana
For R e s p o n d e n t :
M a r c G. B u y s k e ; A n d e r s o n , B e a t t y & Lee, Shelby,
Montana
S u b m i t t e d on B r i e f s : Feb. 9, 1989
i-
!r:
Decided: 21, 1989
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Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Mr. Hughes appeals from an Order of Clarification issued
by the District Court for the Ninth Judicial District, Gla-
cier County, following a judgment entered in the parties'
divorce proceedings before that court. We reverse and remand
for further proceedings.
The issue presented for our review is whether the Dis-
trict Court erred in granting Mrs. Hughes permanent mainte-
nance in its Order for Clarification.
The parties had been married for 25 years when they
separated in April of 1982. The marriage was dissolved in
1986. Three children were born of the marriage, all of whom
were emancipated at the time of the divorce proceedings.
During the marriage, Mrs. Hughes was not, for the most
part, employed outside the home. She raised the children and
served as homemaker in the various locations in which the
family lived while Mr. Hughes pursued his career as a mi1.i-
tary officer with the United States Air Force. Mr. Hughes
served fourteen of his active duty years in the United King-
dom primarily because Mrs. Hughes was a British citizen and
preferred to live in England. After 23 years of active
service, Mr. Hughes retired in 1978, having attained the rank
of major.
Following Mr. Hughes' retirement, the parties remained
in Scotland. Mr. Hughes sold automobiles and Mrs. Hughes
began working as a social worker for the local government.
In 1982, Mr. Hughes moved to the United States to pursue a
second career in hospital administration. Mrs. Hughes chose
not to accompany her husband. She remained in the family
residence in Scotland and continued her employment as a
social worker.
Upon his return to the United States, Mr. Hughes worked
as a hospital administrator in Ekalaka, Montana, then in Cut
Bank, and finally in Helena, Montana. While in the United
States, Mr. Hughes continued to support his family by depos-
iting his entire Air Force pension check in a bank account in
Scotland along with other monies from his hospital employ-
ment. That assistance continued until November of 1986 when
the parties' youngest child reached the age of majority.
That same month, the marriage was dissolved by the Glacier
County District Court and the court ordered Mr. Hughes to
keep current all of the mortgage payments, taxes, and insur-
ance associated with the Scotland residence.
In January of 1987, Mr. Hughes was ordered to pay $300
per month temporary maintenance "until the final determina-
tion of this matter, either by Court Order or by mutually
agreed upon settlement." A final hearing was held on March
23, 1987, and the trial court issued its Findings of Fact and
Conclusions of Law dated July 31, 1987. Pursuant to that
judgment, Mrs. Hughes was awarded the family residence in
Scotland, "40% of the Air Force pension and all personal
effects and furnishings in Scotland." She was to assume all
debt incurred in Scotland. Mr. Hughes was awarded "60% of
the Air Force pension, the retirement funds associated with
his hospital employment, and his personal effects. " He was
to assume all debts incurred in the United States.
On July 29, 1987, Mrs. Hughes filed a timely motion
requesting clarification of the court's order concerning the
Air Force pension award. Specifically, she requested that
the court clarify whether it intended her to receive 40% of
the lump sum present value of the pension, or whether she was
entitled to receive 40% of some monthly payment due to Mr.
Hughes. The court issued its Order of Clarification on
August 28, 1987, which is the subject of this appeal. In
that order, the District Court stated:
The Court has the authority to make the fol-
lowing changes to its Order of July 31, 1987. Such
changes are not corrections of substantial judicial
error; rather they are merely attempting to specif-
ically state the result this Court intended to
achieve by its July 31, 1987 decision. The Court
can make such changes under the authority of Rule
60 (a), M. R.Civ.P. (Citations omitted. ) Moreover,
Respondent's motion to clarify can be easily con-
strued by this Court to be a timely motion under
Rule 60(b), MRCP, and the Court finds sufficient
reasons to justify clarifying its July 31, 1987
order, specifically, the potential problem created
by using the phrase "40% of the Air Force pension"
vis a vis 10 U.S.C. 1408, and 32 C.F.R. § 63 (stat-
ute and regulations defining when and to what
extent the military will make direct payments to a
former spouse from a military pension); the poten-
tial problem of finding a present value of an asset
and then intending the former spouse to receive, in
effect, a maintenance payment.
The Court then ordered that the marital assets and
liabilities be divided as follows:
To Audrey Hughes:
Assets: (1) residence in Tayport, Scotland
(2) all household furnishings and
effects located in Scotland.
Liabilities: (1) all debts of the marriage in
Scotland
To Gerald Huahes:
Assets: (1) U.S. Air Force pension
(2) PERS pension
(3) personal effects
(4) Cadillac automobile
Liabilities: all debts of the marriage in the
U.S.
Additionally, the Court awards to Audrey
Hughes maintenance, payable monthly in the manner
specified below, in an amount equal to $650.00 per
month, or 408 of the disposable retired pay of
Petitioner from his U.S. Air Force pension, which-
ever is greater.
On appeal, Mr. Hughes contends that the District Court
had no authority to change what was originally contemplated
as a property settlement to a maintenance award in the Order
of Clarification because such relief was not requested by
either party and because no findings were made to support
such an award as required by statute. Both parties admit
that an award of maintenance was not specifically requested,
although Mr. Hughes' petition for dissolution requested "such
other and further suitable arrangements as (the District
Court) may deem just and proper."
Mrs. Hughes argues that the failure to specifically
request an award of maintenance does not preclude the Dis-
trict Court from granting such relief as long as it is war-
ranted by the evidence. As authority, Mrs. Hughes cites Rule
54 (c), M.R.Civ.P., which states:
. . . every final judgment shall grant the relief
to which the party in whose favor it is rendered is
entitled, even if the party has not demanded such
relief in his pleadings.
The discretion granted to the District Court in Rule
54 (c), however, must be viewed in light of the particular
nature of this case. In a dissolution proceeding, the
court's power to grant relief is strictly statutory, and
statutory guidelines are set forth to determine whet-her such
relief is warranted in any case. Prior to granting an award
of maintenance, the court is required to make specific find-
ings under § 40-4-203, MCA:
. . . the court may grant a maintenance order for
either spouse - - - finds - - spouse
only if it that the
seeking maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through appropri-
ate employment . . . (Emphasis supplied.)
Section 40-4-203 ( I ) , MCA. We therefore review the District
Court's findings and conclusions to determine whether an
award of maintenance was justified under S 40-4-203, MCA.
The court found that Mrs. Hughes' take home pay as a
social worker was approximately $680 per month, which is
somewhat less than the usual wage for a social worker of Mrs.
Hughes' experience and qualifications. The court concluded
that she has reached her maximum earning capacity, subject to
normal yearly salary increases, and that she has no formal
training for the position she now holds or any other. The
court also concluded that Mrs. Hughes' monthly expenses
exceed her monthly income if no consideration is given to the
Air Force payments provided by Mr. Hughes during the time he
lived in the United States prior to the divorce. Finally,
the court concluded that Mrs. Hughes has no assets capable of
generating income, and that the only asset located in Scot-
land, the family residence, is income consuming as it is
still subject to a mortgage and to assessments for taxes and
insurance. These findings tend to support an award.
However, the District Court made other findings and
conclusions which are contradictory and would not tend to
support an award of permanent maintenance. Because of Mrs.
Hughes' salary, the Scottish economy and standard of living,
and the Scottish governmental benefits and military benefits
to which she is entitled, the court found that Mrs. Hughes
"is able to live somewhat comfortably from her own resourc-
es." The court found that the standard of living in Scotland
is not as high as in the United States, and that a divorced
woman in Scotland would expect to receive a home free of any
mortgages plus several years of maintenance to enable her to
retrain if she were not employed or had no employment skills.
Based on Mrs. Hughes' salary, the court concluded that she is
capable of maintaining house payments on a $30,000 mortgage,
with associated costs and expenses.
The court also found that any maintenance payments
received by Mrs. Hughes could reduce her take home pay be-
cause of Scotland's tax structure. If she were not receiving
temporary maintenance, the court found that her take home pay
could be about $200 per month higher. There are no findings
as to how Mrs Hughes' take home pay might be affected by an
award of permanent maintenance.
Finalllr, the court noted the source of many of Mrs.
Hughes' expenses. In her claimed living expenses, Mrs.
Hughes included the living expenses of the parties' youngest
daughter, Christine, who was legally an adult at the time of
trial and whom the parties had no obligation to support. The
court found that Christine was able-bodied and capable of
employment. While she managed a wine shop in Scotland, she
did not share or contribute to the expenses incurred in Mrs.
Hughes' home. Mrs. Hughes also supported the oldest daugh-
ter, Karen, up until the time of her wedding in November,
1986. Karen is involved in equestrian pursuits, and partici-
pates in jumping contests and other equestrian competitions
which Mrs. Hughes actively supports. The court noted it to
be an expensive hobby, and found, "If one follows such a
hobby and only has middle-income means, it severely strains
the budget. . . She (Mrs. Hughes) will have to, and should be
expected to, more realistically approach her 1-ifestyle in
order to live within her means."
These findings do not establish that Mrs. Hughes is
entitled to permanent maintenance under the requirements of S
40-4-203, MCA. We conclude that this case should be remanded
for reconsideration by the District Court after the making of
new findings which meet the requirements of the statutes.
Mrs. Hughes requested that this Court reinstate tempo-
rary maintenance in the event of a remand. We note that the
issue of interim maintenance is already before the District
Court by way of Mrs. Hughes' motion for enforcement of tempo-
rary maintenance orders. In light of her pursuit of an
adequate remedy in the lower court, we decline to exercise
appellate action in this regard in accordance with State ex
rel. Kaasa v. District Court (1978), 177 Mont. 547, 551, 582
P.2d 772, 775. We reverse and remand this case for further
proceedings consistent with this opinion.
We Concur:
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i/ Justice William E. Hunt did not participate in this case.