No. 90-490
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF KEVIN THOMAS DUNN,
Petitioner and Appellant,
and
APR 1 1 1EI94
DEBORA MARIE DUNN,
Respondent and Respondent CLERK OF SUPWEME COURT
STATE OF MONTANA
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel Donovan, Great Falls, Montana
For Respondent:
Don A. LaBar, Church, Harris, Johnson & Williams,
Great Falls, Montana
Submitted on briefs: February 21, 1991
Decided: April 11, 1991
Filed:
Clerk
Justice Terry N. ~rieweilerdelivered the Opinion of the Court.
Kevin Thomas Dunn appeals from a decree of dissolution of his
marriage to Debora Marie Dunn, entered in the Eighth Judicial
District Court, Cascade County, which awarded Debora $500 per month
for maintenance for six years.
On appeal, Kevin contends that the District Court did not
consider the statutory requirements for an award of maintenance to
Debora, and that the amount and term of the maintenance award was
excessive. After consideration of these issues, we affirm.
Debora and Kevin were married on July 23, 1983. They have one
child, Corey, who was three years old at the time of the
dissolution. At the time of the hearing, Kevin was 29 years old
and Debora was 32 years old.
For the first three years of their marriage, the couple lived
in Billings, Montana. Kevin graduated from Eastern Montana College
in 1984, with a bachelor's degree in bank operations management.
Shortly afterward, Deluxe Check printers hired Kevin as a salesman.
Deluxe transferred Kevin to Great Falls, Montana in 1986. Since
then, he has continued to work for the company as a salesman.
Debora has worked throughout the marriage. In Billings, she
worked as an office manager for a real estate agency. After moving
to Great Falls, she found work as an office manager for Pierce
Flooring. She left briefly to work for a Great Falls insurance
agency, and then was hired back again by Pierce.
At the time of trial, Kevin's gross income was approximately
$37,000 per year, while Deborals gross income was approximately
$14,000 per year. The record reveals that both Kevin's and
Deborals expenses exceeded their net incomes. In addition to
Kevin's $37,000 salary, he received a company car, a 1990 Ford
Taurus 4-door sedan at a monthly charge of $25.00; comprehensive
health insurance, including dental and optical coverage; an expense
account for meals and lodging for his sales trips; and a $5,000 per
year contribution to his retirement plan. The only fringe benefit
Debora had was a minimal health care plan.
The couple also owned a 1988 Honda Prelude valued at $9,000.
However, the couple owed the bank $9,728.58 to pay for the Honda.
The District Court awarded the car to Debora.
The District Court made the following distribution of the
marital estate:
Asset Debora Kevin
Net sale proceeds, family home
Household furniture
Honda Prelude
Kevin's bank accounts
Deborals bank accounts
Deluxe stock
Kevin s retirement
1990 contributions to retirement
1989 Income tax refunds
TOTAL ASSETS $29,871.83 $22,680.82
Less Debts 12,509.78 7,452.75
Net Marital Estate 17,472.05 15,228.07
In addition, the District Court ordered Kevin to pay Deborags
attorney fees amounting to $2,112.50.
The couple agreed that they should have joint legal custody
of Corey. The District Court, however, granted physical custody
to Debora, and ordered Kevin to pay $277.23 per month in child
support. Furthermore, the District Court found that Itchild care
costs should be divided in accordance with the partiesg gross
incomes: 28% to Respondent Wife; 72% to Petitioner H u ~ b a n d . ~ ~
In addition to the child support, the District Court awarded
Debora $500 per month for maintenance for a period of six years.
In awarding maintenance to Debora, the District Court found that:
The ~espondent-Wife 32 years old. She is employed as
is
office manager by Pierce Flooring in Great Falls,
Montana. Respondent-Wife requests that she be awarded
spousal maintenance in an amount and for such period of
time as the Court deems equitable. From the evidence
introduced, it is clear the Respondent-Wife lacks
sufficient property to provide for her reasonable needs
and is unable to support herself through appropriate
employment. Respondent-Wife gave up a better job in
Billings to move to Great Falls with her husband in early
1986; she still is earning less now than when she left
Billings. considering the need of Respondent-Wife to
find appropriate employment or to acquire sufficient
additional education or training for better employment,
the standard of living established during the marriage,
the duration of the marriage, the age and emotional
condition of Respondent-Wife, and the ability of the
Petitioner-Husband to meet his needs while assisting his
spouse with maintenance, for a reasonable period of time,
spousal maintenance is appropriate in this case for a
period of six years at the rate of $500 per month
commencing June 1, 1990.
Kevin moved to alter or amend the District Court's decree.
In his motion, Kevin argued, among other things, that the District
Court erred in awarding maintenance to Debora. The District Court
denied this motion. Kevin appeals the District Court's maintenance
award.
MAINTENANCE
The appropriate standard of review for an award of maintenance
is established by 1 40-4-203, MCA. In Re the Marriage of Sullivan
(1990), 243 Mont. 292, 298, 794 P.2d 687, 690. As we stated in
Sullivan, 794 P.2d at 690:
An award of maintenance is premised upon a finding by the
court that the individual seeking maintenance 'lacks
sufficient property to provide for his reasonable needs;
and is unable to support himself through appropriate
employment. Section 40-4-203 (1)(a)(b), MCA.
In this case, Kevin maintains that Debora's share of the marital
property and her current employment are more than sufficient to
provide for her reasonable needs. The District Court record and
the District Court's findings tell a different story. The record
reveals that Debora's $940 in monthly income falls far short of her
monthly expenses. The District Court's findings show that Debora's
monthly budget ran a deficit of $1,033.77. Kevin argues that
Debora could erase her monthly deficit with property acquired from
the marital estate. In determining whether a spouse has sufficient
marital property to support herself, this Court will consider
whether the spouse seeking maintenance has received income
producing or income consuming assets. In Re the Marriage of Cole
(1988), 234 Mont. 352, 356, 763 P.2d 39, 42; In Re the Marriage of
Goodman (1986), 222 Mont. 446, 451, 723 P.2d 219, 222. A review
5
of the marital property distribution reveals that the District
Court awarded Debora the Honda Prelude ($9,000) and furniture
($2,445). Neither is income producing property. See Cole, 763
P.2d at 42. Subtracting these two above items from Debora1s share
of the marital assets will leave Debora with $18,536.83 in marital
assets or I1incomeproducing assets.I1 After paying the $12,509.78
of debts assigned to Debora, she will have $6,027.05 of assets
remaining. This amount of income producing property would be
insufficient to fulfill her reasonable economic needs.
Next, the District Court must consider all the relevant facts
in determining an appropriate maintenance award. Section 40-4-
203 (2), MCA. That section is as follows:
(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 ;
the duration of the marriage;
(el 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.
Section 40-4-203 (2)(a)-(f) , MCA.
As we stated in Sullivan, "[a] specific finding by the
District Court as to each of these relevant facts is not required
as long as the court considered proper information in addressing
these facts and based its decision upon substantial credible
evidence." Sullivan, 794 P.2d at 691; Cole, 763 P.2d at 43.
Furthermore, "these relevant facts are to be considered by the
court as a whole in the determination of the final maintenance
award." ~ullivan,794 P.2d at 691. There is substantial credible
evidence to support the District Court's monthly maintenance award
of $500 to Debora. The record reveals, and the ~istrictCourt
found, that Debora has insufficient financial resources to provide
for her reasonable needs. The maintenance payment also allows
Debora the opportunity to return to school to improve her
employment prospects. Her current job is insufficient to meet her
monthly expenses. The record reveals that Kevin is capable of
making the maintenance payments.
The District Court, in awarding maintenance to Debora, clearly
reviewed the couple's work history, skills, standards of living,
and the parties1 present employment. Based on these facts, the
District Court's award of maintenance to Debora is supported by
substantial credible evidence.
P
Accordingly, we affirm the District Court's maint nance award.
We Concur:
&g~--/
Justices