NO. 90-030
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF
LINDA L. COOPER,
Petitioner and Respondent,
and
ROBERT T. COOPER,
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
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7 Brett C. Asselstine, Great Falls, Montana
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'For Respondent:
Kenneth R. Olson, Great Falls, Montana
Submitted on Briefs: April 26, 1 9 9 0
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Decided: May 25, 1990
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Justice Diane G. Barz delivered the Opinion of the Court.
Robert Cooper appeals from the decree of the District Court
of the Eighth Judicial District, Cascade County, dissolving his
marriage to Linda Cooper and distributing marital assets. We
affirm.
When the parties met in 1979, Robert was a Master Sergeant in
the united States Army with a wife and three children living in
Georgia. Robert had been in the service for approximately eighteen
years at that time. Linda had two sons from a previous marriage.
Robert and Linda resided together sporadically beginning in October
of 1979. Upon his retirement from the military in November 1981,
Robert returned to Georgia to attempt a reconciliation with his
wife. This effort failed and Robert was divorced in June, 1983.
Robert was ordered to pay his ex-wife child support of $200 per
month per child until his oldest child attained majority and $200
per month alimony thereafter until her death or remarriage.
Robert's ex-wife relinquished all claims to his military pension
and Veterans Administration disability benefits in exchange for the
balance of the marital assets.
The District Court found that:
[b]etween October of 1979 until ... [Robert]
retired in November of 1981 the parties lived
together in . . . [Linda's] residence. She
was the homemaker and her income provided the
husband with many of his necessities,
including a down payment to purchase a car,
house payments to [Robert's] first wife in
Georgia, direct payments of cash to him, car
payments and payments on his VISA credit Card
Account ... During this time . ..
[Robert]
was completing his last two years for his
eligibility for his military retirement
pension. During this period . . .
[Linda]
made all the lease payments on the residence
and paid all of the household expenses.
[Robert's] contribution consisted of the
purchase of some groceries.
The parties were married on December 30, 1983. No children
were born of the marriage. The District Court determined the
marital estate consisted of real and personal property with a value
of $102,825.49. The District Court found Robert had dissipated a
significant portion of the marital estate through gambling. At the
time of trial, Linda's monthly net take-home pay was approximately
$1,232.72 and she received $300 per month child support. Linda's
monthly expenses were $1,519.44. Robert received his military
pension of $800 per month and disability benefits of $133 per month
in addition to his salary from K-Mart averaging approximately
$20,000 per year. While the District Court made no specific
finding regarding Robert's monthly income, it appears to have been
roughly $1,900 per month. Robert's monthly expenses were
$1,616.83. Robert will be entitled to pension benefits from K-
Mart should he retire from his employment there.
The District Court awarded Linda assets with a value totalling
$44,321.49 and debt totalling $42,002 for a net distribution of
$2,319.49. Robert received assets with a value of $68,504 and
indebtedness of $31,584 for a net distribution of $36,920. Linda
received the family home and liability for the accompanying
mortgage while Robert was required to retire the home improvement
loan. Robert was also required to pay Linda $10,000 as part of the
marital estate in lieu of maintenance or alimony. The value of
Robert's military pension and disability benefits were included as
marital assets although neither was distributed to Linda.
Robert raises the following issues on appeal:
1. Was the District Court's requirement that Robert pay the
home improvement loan because he dissipated a portion of the
marital estate an abuse of discretion?
2. Did the District Court err by failing to add Robert's
payment of the home improvement loan to Linda's share of the
marital assets?
3. Did the District Court properly include Robert's military
pension and disability benefits as assets of the marital estate?
4. Did the District Court abuse its discretion in ordering
Robert to pay Linda $10,000 as part of the marital estate in lieu
of maintenance or alimony?
We have reiterated the standard of review in dissolution cases
many times: The district court has great latitude in distributing
marital property and findings of fact and conclusions of law
supported by substantial credible evidence will not be overturned
on appeal unless they constitute an abuse of discretion. In re
Marriage of Cannon (Mont. 1990), P.2d -, I 47 St.Rep. 752,
755.
Section 40-4-202(1), MCA, provides:
4
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 of 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;
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.
Following our review of the record we conclude the District
Court had substantial credible evidence upon which to base its
findings of fact. The first two issues concern the District
Court's distribution of the home improvement loan. While we find
the District Court did not erroneously conclude Robert dissipated
a portion of the marital estate, that finding was not crucial in
justifying the court's allocation of the home improvement debt to
Robert. Linda's net distribution was little over $2,000, Robert's
was in excess of $36,000. The District Court properly ordered
Robert to assume this debt. Even if Robert's assumption of this
debt were included in Linda's assets, her net distribution would
still be far less than Robert's. The District Court did not err
in failing to add this assumption of debt into Linda's net
distribution.
Robert's third citation of error concerns the inclusion of
his military pension and disability benefits in the marital estate.
It is well settled that military retirement benefits are a marital
asset. In re the Marriage of Luisi (1988), 232 Mont. 243, 246, 756
P.2d 456, 458-59. As concerns the disability benefits, the
District Court may properly include in the marital estate any
property I1however and whenever acquired." Section 40-4-202(1),
MCA. The District Court awarded no portion of either asset to
Linda. Both the military pension and disability benefits were
properly included in the marital estate.
Finally, Robert asserts the lower court erred in requiring
that he pay Linda $10,000 as part of the marital estate in lieu of
6
maintenance or alimony. Section 40-4-202(1), MCA, clearly
anticipates an award of property in lieu of maintenance. We note
once again the disparity between the parties' respective net
distributions. The District Court properly ordered the $10,000
payment.
Affirmed.
Justice 27
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We concur: