No. 91-420
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
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IN RE THE MARRIAGE OF !
DENNIS KEITH SACRY,
and
Petitioner and Appellant,
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MAY 2 2 1992
SANDRA LOIS SACRY,
CLERK OF SUPRKiiIil COURT
Respondent and Respondent. STATE OF IWOtUTANA
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorothy McCarter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark P. Yeshe, Helena, Montana
For Respondent:
Ann L. Smoyer, Helena, Montana
Submitted on Briefs: February 27, 1992
Decided: May 22, 1992
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Dennis Keith Sacry appeals from a decree of
dissolution from the First Judicial District Court, Lewis and Clark
County.
We affirm.
Appellant raises four issues for our consideration.
1. Did the District Court err in awarding maintenance to
respondent?
2. Did the District Court err in computing child support?
3. Did the District Court err in not apportioning child
support?
4. Did the District Court err in the distribution of the
marital estate?
Appellant and respondent, Sandra Lois Sacry, were married on
August 16, 1969. Three children were born during the marriage. At
the time of trial, the oldest was 20 years old and did not live at
home. The other two children, one 17 years old, and one 13 years
old, lived primarily with the respondent.
Prior to the marriage, appellant received his undergraduate
degree from Carroll College while respondent achieved her three
year nursing certificate. Appellant began his career in dentistry
upon graduation from dental school in 1974. Both parties
contributed financially to appellant's successful completion of
dental school. Appellant was able to obtain loans and grants to
pay for his education, while respondent worked as a registered
nurse to pay for living expenses. After appellant graduated from
dental school, the couple moved to Whitehall. The citizens of
Whitehall had built a medical/dental building for appellant and his
uncle, who was a physician. Respondent worked as a nurse for
appellant's uncle until the youngest child was born in 1978. In
1979, respondent returned to work for appellant as an office
manager and dental assistant.
Since the opening of appellant's practice, the business has
thrived. In 1985, appellant expanded his practice to include
Butte. In 1989, he purchased a dental practice in Harlowton. In
addition, appellant rented an office in Scobey to perform
orthodontic work. Appellant also purchased an airplane in order to
maintain his diverse geographical practice.
The couple separated in 1988, prior to the acquisition of
the Harlowton and Scobey practices. Respondent stopped working for
appellant and obtained a nursing position at a psychiatric hospital
in Butte. At the time of trial, respondent was still working at
the hospital and attending college at Bozeman.
Over the years, the couple accumulated a considerable amount
of marital assets. The marital estate consisted of investment
funds, gold and silver, IRAs, retirement moneys, several vehicles,
and various bank accounts. The parties maintained a family home in
Cardwell and they owned other real property in Whitehall and
Harlowton. The parties also had a partnership interest in what was
called the Sacry ranch.
At trial, the parties stipulated to most of the valuations of
property. The parties disputed the value of the dental practice
and its assets. Each side presented their own expert witness
regarding the value of the dental practice.
On March 22, 1991, the District Court issued it findings of
fact and conclusions of law and decree of dissolution. The court
found that the value of the marital estate totaled $586,675, with
debts of $247,160. The net value of the martial estate distributed
to appellant was $191,090 while the net value of the estate awarded
to respondent was $128,425. The court ordered appellant to pay
respondent $31,333 to equalize the distribution of the estate. The
court also awarded respondent maintenance of $300 a month for
18 months.
The parties were awarded joint custody of the two minor
children who primarily reside with respondent. The court ordered
appellant to pay child support in the amount of $1763 a month.
Appellant appeals the District Court's findings set out in the
decree of dissolution.
On May 16, 1991, appellant filed a motion requesting the court
to amend its findings and order, or to alter its judgment. On
June 27, 1991, the court denied appellant's motion. On July 19,
1991, appellant filed his notice of appeal.
I.
Did the District Court err in awarding maintenance to
respondent?
In reviewing an award of maintenance, this Court's role is
limited to a determination of whether the District Court's findings
are clearly erroneous. In Re Marriage of Eschenbacher (Mont.
1992), 49 St.Rep. 392, 394. The court may award maintenance if it
finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment . . ..
Section 40-4-203(1), MCA.
To determine whether a spouse has "sufficient property," the
court should consider whether the property is income-consuming or
income-producing. In Re Marriage of Cole (1988), 234 Mont. 352,
356, 763 P.2d 39, 42. The court must also consider factors set out
under 5 40-4-203(2), MCA, when deciding the amount and duration of
maintenance.
Respondent earns approximately $29,000 a year working as a
registered nurse and receives a $1,000 yearly allotment as an
enrolled member of the Confederated Salish and Kootenai Tribes.
Appellant, on the other hand, earns approximately $100,000 a year.
The property that respondent received in the dissolution decree is
mainly income-consuming property. Her nursing certificate is
insufficient for her to advance in her career. Her income would
not allow her to maintain her standard of living, nor would it
enable her to complete her college courses necessary for a B.A.
The District Court determined that for respondent to further
advance in her career as a nurse she would need to obtain her B.A.
degree. We hold that the award of maintenance by the District
Court was not clearly erroneous.
11.
Did the District Court err in computing child support?
In reviewing child support, this Court has stated that a
presumption exists in favor of the district court's determination,
and this Court will reverse the district court only if it has
abused its discretion. In Re Marriage of Graveley (1990), 244
Mont. 137, 139, 796 P.2d 585, 586-87.
The Department of Social and Rehabilitative Services adopted
child support guidelines pursuant to 5 40-5-209(5), MCA, which
became effective on July 13, 1990. The underlying principle behind
the adoption of the guidelines is that a child's standard of living
should not, to the degree possible, be adversely affected because
his or her parents are not living in the same household.
46.30.1501, A.R.M. The child support guidelines are used in
conjunction with the factors set out in 5 40-4-204, MCA, to
determine the proper amount of child support awarded. The use of
the guidelines creates a rebuttable presumption of the adequacy and
reasonableness of child support awards. 46.30.1507, A.R.M.
In calculating child support, the court found that respondent
had an annualized income of $28,143, a net value of assets of
$160,590, and taxes of $7,140. The court found that appellant had
an annualized income of $100,500, a net value of assets of
an annualized income of $100,500, a net value of assets of
$198,800, and taxes of $34,000. The District Court used the
26.1 percentage of parental income, as stated in the guideline
tables, to arrive at the child support amount. The court ordered
appellant to pay $1,763 a month in child support, and allowed him
to claim the minor children as dependents for income tax purposes.
Appellant contends that the District Court did not list which
"income attributable to assets" were included or excluded.
However, appellant did not provide the court with any documentation
relating to his disposable income, nor did he provide the court
with any computation regarding how much he should pay in child
support. Respondent provided the court with her support
calculation which was prepared by her accountant. The amount the
court awarded closely approximated the testimony of the accountant
and the amount appellant was paying prior to the decree of
dissolution.
Appellant also contends that the 26.1 percentage should be
reduced because it is not applicable to incomes greater than
$39,500. While it is true that the guideline tables do not apply
to incomes greaterthan $39,500, exclusions from the guidelines are
set out in 46.30.1543, A.R.M.
When incomes exceed this amount the first $39,500.00
should first be applied in the appropriate column and
line which shows the number and age of the child to
arrive at a minimum support amount. The minimum support
amount should be supplemented out of the remaining
parental income. The amount of the supplement must be
determined on a case-by-case basis.
46.30.1543 (2), A.R.M. Thus, the court is given broad discretion in
determining the appropriate amount of child support. The District
Court properly considered the financial situation of the parties,
the needs of the children, and used 26.1 percent to calculate child
support. We hold that the District Court did not abuse its
discretion in the calculation of child support.
Did the District Court err in not apportioning child support?
Appellant argues that because one of the minor children turned
18 on December 28, 1991, the District Court should have provided
for future adjustment for lower child support payments after the
child turned 18. Specifically, he contends the court should have
apportioned the support between the two minor children and allowed
appellant to terminate support without having to go through the
expense of a motion. Appellant fails to cite any authority for
this proposition.
Procedure for modification of child support payments is
governed by 5 40-4-208, MCA. Upon motion of a party, the district
court may modify child support payments. Section 40-4-208(l), MCA.
Section 40-4-208(5), MCA, provides in pertinent part:
Provisions for the support of a child are terminated
by emancipation of the child or the child's graduation
from high school if the child is enrolled in high school,
whichever occurs later, but in no event later than the
child's 19th birthday, unless the termination date is
extended or knowingly waived by written agreement or by
an express provision of the decree.
No provision in the decree states when child support should be
terminated. When the second child reaches age 18, or graduates
from high school, whichever occurs later, appellant may then
petition the court for modification of child support. We hold the
District Court did not abuse its discretion in not apportioning
child support payments.
IV.
Did the District Court err in the distribution of the marital
estate?
Appellant's main contention is that the District Court should
not have included the Scobey and Harlowton practices in the
division of the marital estate, and that the court's valuation of
appellant's dental practice was too high.
Our standard of review in the division of marital property is
whether the district court's division of the marital estate is
clearly erroneous. Interstate Production Credit Assn. v. DeSaye
(Mont. 1991), 820 P.2d 1285, 1287, 48 St.Rep. 986, 987.
Appellant argues that the Scobey and Harlowton practices
should not have been included in the marital estate because they
were acquired after the parties had separated. The general rule
for the court to value the marital estate is at or near the time of
dissolution, unless unique circumstances of the marital
relationship exist. In Re Marriage of Swanson (1986), 220 Mont.
490, 495, 716 P.2d 219, 222.
Respondent had worked for appellant as an office manager and
dental hygienist for several years. Her assistance allowed him to
develop, maintain, and expand a successful dental practice.
Appellant has failed to offer evidence of any unique circumstances
which would lead the District Court to value the dental practice at
the time of separation. We hold that the District Court's
inclusion of the Harlowton and Scobey practices in the marital
estate was not clearly erroneous.
With regard to the valuation of the dental practice, at trial
each side presented an expert to testify about the value of
appellant's dental practice. Appellant's expert, Mr. Fladmo, a
CPA, testified that the value of the dental practice was $65,000.
Respondent's expert, Mr. Danzer, also a CPA, testified that the
practice was worth $200,000. The District Court believed that the
first valuation was too low because the expert failed to give
sufficient consideration to the lack of competition of dental
practices in rural areas and appellant's increased income over the
past two years. The court reasoned that the second valuation was
too high because the expert based his calculations from a study
which used cities that are large by Montana's standard and that the
practice was unique because it was located in four separate areas.
The court averaged the two valuations to arrive at $133,000. The
averaging of values given by experts to arrive at an equitable
distribution is within the discretion of the district court. In Re
Marriage of Goodmundson (1982), 201 Mont. 535, 539, 655 P.2d 509,
511. We hold the District Court did not abuse its discretion in
averaging the values given by the experts.
With regard to the various other valuations and distribution
of assets that appellant asserts are incorrect, we need only state
that there is substantial credible evidence to support the District
Court's valuations of the marital estate's assets. We hold that
the District Court did not err in distributing the marital estate.
We affirm.
We concur: