No. 92-030
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
DOROTHY E. DORVILLE,
Petitioner and Appellant, JUL 3 8 1992
and
CLERK OF 5UPkEME COURT
DONALD KEITH DORVILLE STATE OF MGiY'rANA
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Paulette C. Ferguson and Lori Ballinger, Attorneys
at Law, Missoula, Montana
For Respondent:
Jon Ellingson, Ellingson & Moe, Missoula, Montana
Submitted on Briefs: June 25, 1992
Decided: July 30, 1992
Filed:
" Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
Dorothy E. Dorville appeals decisions of the District Court of
the Fourth Judicial District, Missoula County in her marital
dissolution action. We affirm.
The issue we address on appeal is whether the District Court
erred in refusing to award maintenance.
The appellant, Dorothy Dorville (Dorothy), and the respondent,
Donald Dorville (Donald), were married in Colorado on May 10, 1969.
Two children were born during the marriage.
Dorothy was 44 years old at the time of trial and was employed
by the U.S. Forest Service. She has a college degree and
previously had been employed as a teacher. Donald was also 44
years old. He attended college but does not have a degree. He was
an employment services specialist with the Montana Job Service at
the time of trial.
The couple had a moderate middle-class lifestyle over the many
years of the marriage. They accumulated considerable marital
assets, including a family home, undeveloped property on Flathead
Lake, vehicles, household furnishings, and Donald's PERS monies.
Donald receives military disability benefits each month as a result
of a disability which occurred prior to the marriage. In addition,
he received an inheritance from his father shortly before the
marriage ended.
Dorothy filed a petition for dissolution of the marriage on
February 17, 1989. Trial was held in September, 1991. The
District Court filed its findings of fact and conclusions of law
2
October 1, 1991. The court awarded the parties joint custody of
the minor child, with primary residential custody in Dorothy; it
also awarded Dorothy child support of $450 each month. The marital
estate, including Donald's PERS accumulations, was valued and
distributed. Dorothy received a net distribution of property
valued at $50,985; Donald's net share was $41,995. In addition,
each party was awarded one-half of the proceeds--valued at
approximately $45,000 after taxes--from a future sale of the
Flathead Lake property. Finding that Dorothy had sufficient
property to provide for her reasonable needs and that she was able
to support herself through appropriate employment, the District
Court refused to award maintenance.
The decree of dissolution was entered October 15, 1991.
Dorothy filed a motion to alter or amend, which the court denied.
This appeal followed.
Did the District Court err in refusing to award maintenance?
The court may award maintenance only if it finds that the
spouse seeking maintenance lacks sufficient property to provide for
her reasonable needs and is unable to support herself through
appropriate employment. Section 40-4-203(1), MCA. Our standard of
review of a grant or refusal of maintenance is whether the district
court's findings are clearly erroneous. In re Marriage of Sacry
(Mont. 1992), - P.2d , 49 St.Rep. 452; In re Marriage of
Eschenbacher (Mont. 1992) , - P.2d -, 49 St.Rep. 393.
The District Court found that Dorothy had a permanent job with
the Forest Service from which she netted $883 every four weeks.
The record reflects a reasonable expectation of a cost of living
increase in Dorothy's job each January and, in addition, periodic
step increases. She was awarded the family home with approximately
$54,000 equity and a remaining mortgage of approximately $13,000.
In addition, she will net $45,000 cash after taxes upon sale of the
Flathead Lake property. On the basis of these findings, the court
found that Dorothy did not meet either of the statutory
requirements for an award of maintenance. Dorothy asserts that the
court erred as to both of the statutory criteria.
Dorothy argues, first, that the "sufficient property" finding
was erroneous because the court failed to take into account that
the property she received was income-consuming. "Sufficient
property1'as used in 5 40-4-203, MCA, means income-producing, not
income-consuming, property. In re Marriage of Luisi (1988), 232
Mont. 243, 756 P.2d 456.
Here, the court awarded Dorothy the family home. This clearly
is income-consuming property for purposes of 5 40-4-203, MCA,
although we do note, as did the District Court, the appellant's
substantial equity in the home.
Dorothy also was awarded one-half of the net proceeds from the
future sale of the Flathead Lake property, conservatively estimated
by the District Court to be $45,000. Dorothy asserts that, until
the sale occurs, the Flathead Lake property also is income-
consuming. Thus, she contends that the court erred in finding that
she has sufficient property under 5 40-4-203, MCA, because all the
property was income-consuming. We disagree.
It is true that, pending the sale of the Flathead Lake
property, Dorothy must contribute $30 each month for taxes. This
amount is inconsequential, however, in light of the property's
significant value and the lack of any associated debt. We
previously have found that similar property to be sold in the
future was in the nature of income-producing property. In re
Marriage of Tow (1987), 229 Mont. 483, 748 P.2d 440. It is clear
that the District Court so considered the Flathead Lake property
proceeds here. Under the facts of this case, the District Court's
finding that Dorothy received sufficient property to provide for
her reasonable needs is not clearly erroneous.
With regard to the property, Dorothy also argues that the
District Court erred in not making a "determination" as to the
income-consuming or income-producing nature of the property she was
awarded. She relies on Marriaqe of Tow, and In re Marriage of
Greenlee (1991), 249 Mont. 521, 816 P.2d 1073. We address this
matter for purposes of clarity only.
We stated in Marriaqe of Tow that a specific finding regarding
the nature of the properties awarded to the spouse seeking
maintenance is required. Marriaae of Tow, 229 Mont. at 486, 748
P.2d at 441-442. Indeed, such specific findings are encouraged in
order that, on review, this Court can follow a district court's
rationale more closely. Subsequent to Marriaqe of Tow, however, we
clarified the "specific findingw requirement by stating that such
a finding is not required when "[ilt is obvious from the findings
and conclusions that the court considered the character of the
property .. .I1 in addressing the award of maintenance. In re
Marriage of Cole (1988), 234 Mont. 352, 356, 7 6 3 P.2d 3 9 , 42. In
Marriaqe of Greenlee, we relied on Marriaqe of Cole in reversing a
district court for failing to consider the nature of the property
awarded. There, the court did not determine the value of certain
real properties and the record was clear that both were burdened
with substantial liabilities; in addition, the court failed to take
into account the fact that, as a practical matter, the awarded
retirement plan amounts were not available for some ten years.
Marriaqe of Greenlee, 249 Mont. at 524, 816 P.2d at 1075.
Here, the specificity of the court's findings as to the value
of, and equity in, the properties demonstrates that it considered
the nature of the properties. We conclude that the District Court
properly considered the nature of the property awarded to the
appellant.
Dorothy also contends that the District Court erred in
determining that she is able to support herself through appropriate
employment in that it failed to consider the standard of living the
parties established during the marriage. Her analogy to In re
Marriage of Dunn (1991), 248 Mont. 95, 809 P.2d 571, is misplaced.
In Marriaqe of Dunn, the wife's income fell short of her
expenses; the husband argued that she could erase the deficit with
her share of the marital assets. The wife's share of assets
amountedto only $6,000 after income-consuming property and related
debt were subtracted. This Court found that amount insufficient to
provide the income which, in combination with the wife's earnings,
was necessary to meet her reasonable needs. Marriaqe of Dunn, 248
Mont. at 98, 809 P.2d at 573. Marriaqe of Dunn is distinguishable
from the instant case.
Here, Dorothy'smonthly expenses are approximately $1,205 plus
house and van payments. Her monthly net income is approximately
$957 ($441.73 bi-weekly x 26 pay periods/year divided by 12
months). That income, together with the $450 monthly child
support, significantly exceeds her monthly expenses when her house
and van payments are not considered.
Those monthly payments are $318 and $357, respectively. At
the time of trial, the total mortgage on the family home was
$13,000, and the outstanding van loan was $5,000. Dorothy's share
of the Flathead Lake property proceeds is $45,000. It is clear
that Dorothy could eliminate her outstanding debt and retain a
sizeable income-producing cash remainder. At such a juncture, she
would have income far exceeding her expenses plus a family home
without debt and other assets. The District Court's finding that
Dorothy was able to support herself through appropriate employment
is not clearly erroneous.
We hold that the District Court did not err in refusing to
award maintenance. Because of that holding, we need not address
Dorothy's argument that Donald's disability payments should be
considered in relation to his ability to pay maintenance.
Af finned.
We concur: