No. 91-517
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
STEVEN NORMAN ESCHENBACHER,
Petitioner and Appellant,
and
MICHELE RENEE CREPEAU,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Clinton H. Kammerer; Kammerer Law Offices, Missoula,
Montana
For Respondent:
Bruce Barrett, ASUM Legal Services, Missoula,
Montana
Submitted on ~riefs: March 19, 1992
Decided: May 1, 1992
Filed:
Justice John Conway Harrison delivered the Opinion of the Court.
Steven Eschenbacher (Steven) appeals the July 8, 1991, decree
of dissolution of his marriage to Michele Crepeau (Michele) entered
in the Fourth Judicial District Court, Missoula County, Montana,
which awarded Michele $800 monthly maintenance for an eighteen
month period. We affirm.
Steven and Michele began living together in June of 1990 and
were married on August 18, 1990. No children were born of their
marriage, although Steven had two children and Michele had one
child from prior relationships.
Prior to and during the marriage, Steven was a commissioned
officer in the United States Army stationed at the University of
Montana as an Assistant Professor of Military Science earning
approximately $46,800 per year. He owned his home free of all
encumbrances, he had a savings account with approximately $6,000,
and virtually no debt. In addition to his home and savings, Steven
brought into the marriage assets including two motor vehicles, a
motorcycle, and personal belongings. Prior to the marriage, Steven
supported his children and himself.
Michele was a student at the University of Montana working
towards a bachelor's degree. She received financial aid from the
University to finance her education and basic living expenses.
Prior to the marriage, Michele supported her son and resided in the
University's student housing complex. She also received Aid to
Families with Dependent Children (AFDC). Apparently, Michele did
not engage in outside employment while she attended school.
2
Michele brought no assets to the marriage aside from her personal
effects and a 1981 automobile. When Michele moved into Steven's
home, she disposed of most of her personal belongings including the
car which she gave to her parents.
After Michele moved into Steven's home, but prior to the
marriage, Steven obtained a $30,000 home equity loan. Steven used
the majority of the loan proceeds to purchase a new van to provide
~ichelewith reliable transportation. Steven used the balance of
the loan proceeds to pay for their wedding, reception, honeymoon
trip, a holiday cruise, and home improvement materials.
During the marriage Michele assumed household duties
including cleaning, preparing meals, and caring for the children
while she attended school full-time. However, Steven and Michele
hired domestic help to perform the weekly heavy housework. Michele
also managed the household finances at Steven's request.
Additionally, Michele and her father extensively remodeled the
bathrooms in the home.
On January 7, 1991, the Army ordered Steven to Saudi Arabia as
a result of the Desert Storm conflict. Michele remained at home
caring for the three children and the home. While in Saudi Arabia,
Steven deposited his earnings into the couple's joint checking
account. After paying her educational expenses, Michele deposited
the balance of her financial aid into the couple's joint account.
On or about February 14, 1991, while still in Saudi Arabia,
Steven learned that Michele desired a divorce. Steven received an
early return from Saudi Arabia. When he returned home on March 11,
1991, Steven discovered that Michele had moved out of his home
taking the van and her personal belongings.
Steven petitioned for dissolution of marriage on March 27,
1991. In her response, Michele requested the court award her the
van and monthly maintenance. Thereafter, Michele moved the court
for temporary maintenance and property distribution; Steven moved
the court for an expedited hearing on the petition for dissolution
to accommodate his military transfer to Germany.
The court scheduled the hearing on Michele's motion for
temporary maintenance on June 17, 1991. At that time, the parties,
with the court's approval, agreed to proceed directly to a final
hearing on the dissolution. Michele waived all claims to marital
property except for the van and basic household items.
After hearing the evidence, the court awarded Michele $1,000
as full settlement for her interest in the marital property and
$800 monthly maintenance for eighteen months. The District Court
entered its final decree of dissolution on July 8, 1991, containing
its findings of fact and conclusions of law. Steven appeals the
District Court's award of maintenance to Michele.
The standard of review is whether the district court's
findings of fact are clearly erroneous. In re Marriage of Eide
(Mont. 1991), 821 P.2d 1036, 1037, 48 St.Rep. 1054, 1055; and
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474,
803 P.2d 601, 603. Recently, we adopted a three-part test to
determine if a finding is clearly erroneous. Interstate Prod.
credit Ass'n v. DeSaye (Mont. 1991), 820 P.2d 1285, 1287, 48
First, the Court will review the record to see if the
findings are supported by substantial evidence. Second,
if the findings are supported by substantial evidence, we
will determine if the trial court has misapprehended the
effect of evidence. [Citation omitted.] Third, if
substantial evidence exists and the effect of the
evidence has not been misapprehended, the Court may still
find that "[A] finding is 'clearly erroneous' when,
although there is evidence to support it, a review of the
record leaves the court with the definite and firm
conviction that a mistake has been ~ommitted.'~ [Citation
omitted. ]
Interstate Prod. Credit Ass'n, 820 P.2d at 1287, 48 St.Rep. at 987.
Substantial evidence is defined as "evidence that a reasonable mind
might accept as adequate to support a conclusion; it consists of
more than a mere scintilla of evidence but may be somewhat less
than a preponderance." Barrett v. Asarco Inc. (1990), 245 Mont.
196, 200, 799 P.2d 1078, 1080 (citation omitted)
The only issue Steven raises on appeal is whether, considering
the short duration of the marriage, the District Court erred in
awarding Michele $800 monthly maintenance for eighteen months.
A court may award maintenance after the marital property has
been equitably divided pursuant to 5 40-4-202, MCA, and the court
has properly applied the criteria of 5 40-4-203, MCA, which
provides :
(1) In a proceeding for dissolution of marriage or
legal separation or a proceeding for maintenance
following dissolution of the marriage by a court which
lacked personal jurisdiction over the absent spouse, the
court may grant a maintenance order for either spouse
only 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 or is the custodian of a child
whose condition or circumstances make it appropriate that
the custodian not be required to seek employment outside
the home.
(2) The maintenance order shall be in such amounts
and for such periods of time as the court deems just,
without regard to marital misconduct, and after
considering all relevant facts including:
(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 ;
(d) the duration of the marriage;
(e) 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.
In the instant case, the District Court found that Michele
required maintenance because she did not receive sufficient income-
producing property to support herself and that she could not obtain
appropriate employment to support herself due to her lack of
training and sufficient education. After a thorough review of the
record, we agree.
For property to be "sufficient propertyt1 under 40-4-
203(l) (a), MCA, it must be income-producing rather than income-
consuming property. In re Marriage of Van Atta (Mont. 19921, -
P.2d -, , 49 St.Rep. 264, 265. Due to the short duration of
the marriage in the instant case, the couple obtained few marital
assets. As a result, the court apparently divided the marital
property pursuant to 5 40-4-202, MCA, and awarded Michele $1,000.
Although these funds are income-producing, the court awarded
Michele the $1,000 cash award to replace the basic household items
she disposed of prior to and during the marriage. We hold that
sufficient evidence exists supporting the District Court's finding
that Michele did not receive sufficient income-producing property
to provide for her reasonable needs.
The court also found sufficient evidence to conclude that the
second criteria for awarding maintenance, 5 40-4-203 (1)(b), MCA,
was satisfied. The court concluded that Michele was unable to
support herself through appropriate employment because she lacked
sufficient education and training.
Generally, an award of maintenance is appropriate if the
spouse seeking maintenance is unable to obtain appropriate
employment with relation to the standard of living achieved by the
parties during the marriage. In re Marriage of Skinner (1989), 240
Mont. 299, 306, 783 P.2d 1350, 1354. In this case, Michele enjoyed
a middle-class standard of living during her marriage to Steven.
Michele contends that the District Court did not err in awarding
her maintenance because she is unable to obtain appropriate
employment to achieve the standard of living she enjoyed during the
marriage until she finishes school. Michele stated that her
standard of living has decreased significantly since the
separation.
The only evidence concerning Michele's employability included
the uncontested facts that she was to begin working within a few
days after the conclusion of the dissolution proceeding. The
record indicates that Michele obtained a clerical position earning
$5.50 per hour. his position was strictly temporary in nature in
that it was in the form of a work study financial aid grant. The
University awarded Michele a maximum of $1,800 that she could earn
during the summer; once she earned $1,800 her position would
terminate. Based on the foregoing, we hold that substantial
evidence exists supporting the District Court's finding that
Michele was unable to support herself through appropriate
employment.
The record indicates that Michele satisfied the criteria of
5 40-4-203(1), MCA, supporting her eligibility for maintenance.
Therefore, the court engaged in step two of the analysis, by
applying $ 40-4-203(2), MCA, to determine the appropriate duration
and amount of monthly maintenance.
Steven argues that Michele is not entitled to $800 monthly
maintenance for eighteen months under 5 40-4-203(2), MCA, because
she has financial resources to meet her needs through the use of
financial aid and AFDC, that she can obtain appropriate employment,
and that she should be returned to the status she enjoyed prior to
the marriage.
The record indicates that Michele's monthly expenses would be
at least $600. Before awarding Michele maintenance, the court
considered the factors in S 40-4-203(2), MCA, including the
duration of the marriage, the middle-class standard of living
enjoyed during the marriage, Michele's contributions to family
harmony, and Steven's ability to pay maintenance while meeting his
own needs. We hold that substantial evidence exists supportingthe
District Court's findings regarding duration and amount of
maintenance.
In conclusion, the District Court did not misapprehend the
effect of the evidence and a review of the record does not leave us
with a definite and firm conviction that a mistake has been
committed. The District Court's findings were not clearly
erroneous, therefore, the judgment is affirmed.
We concur: /
Justices
Justice Karla M. Gray, dissenting.
I respectfully dissent from the opinion of the majority. In
applying the three-part test articulated in Interstate Prod. Credit
Ass'n, my review of the record in this case leaves me with a
definite and firm conviction that a mistake has been committed. I
would reverse the award of maintenance.
Steven and Michele had been married for less than one year
when the final decree of dissolution was entered. They lived
together as a married couple for less than five full months, at
which time Steven was ordered to Saudi Arabia as a result of the
Desert Storm conflict. Approximately five weeks later, Steven
learned that Michele desired a divorce.
Michele was attending the University before the marriage; she
received financial aid to finance her education and basic living
expenses. She and her son lived in University housing and she
received AFDC. She was not employed. Steven brought substantial
assets into the marriage, including his $46,800 annual salary, a
home free of encumbrances, and a savings account. He had no debt.
Shortly before the marriage, after Michele had moved into
Steven's home, Steven obtained a $30,000 home equity loan solely in
his name. The loan proceeds were used for a new van for Michele,
the wedding and reception, a honeymoon trip, a holiday cruise, and
home improvement materials.
By the time the brief marriage ended, Steven's net worth had
decreased significantly due to the substantial home equity loan,
depletion of his $5,600 savings account, and $6,000 in credit card
debt. Michele's net worth remained much as it was prior to the
marriage.
The majority affirms the ~istrictCourtls award of $800 per
month maintenance for eighteen months, concluding that the
requirements of 5 40-4-203 (1) (a) and (b), MCA, were met and that
the ~istrict Court properly applied the 5 40-4-203(2), MCA,
factors. While I would have applauded voluntary payments by Steven
in that amount and for that time, so as to enable Michele to
complete her degree under improved financial conditions, I cannot
agree that it is an appropriate legal result under the facts of
this case.
The majority is correct that gr[slenerallv, an award of
maintenance is appropriate if the spouse seeking maintenance is
unable to obtain appropriate employment with relation to the
standard of living achieved bv the garties during the marriage.I1
(Emphasis added.) It is my view, however, that this case must be
distinguished from the "general ruleu cases. In the case at bar,
the parties were married for ten months and resided together for
only five of those months. While it is true that Michele presently
cannot obtain employment sufficient to support herself at the
standard of living she enjoyed during the short marriage, it also
is true that she did not contribute to attaining the standard of
living into which she married and which she enjoyed for less than
one year. In addition, she was a student and was not engaged in
outside employment before the marriage. Therefore, nothing related
in any way to the short marriage hindered her ability to compete
successfully in the job market after the marriage. Michele is
twenty-eight years old and in good health. These factors indicate
that, although she remains in college obtaining additional
training, she is not unemployable. In short, while Michele is to
be commended for her commitment to obtaining a university degree,
Steven should not be required under circumstances such as these to
contribute to her efforts in that regard.
In addition, when determining whether the spouse qualifies for
maintenance due to a lack of sufficient property to provide for his
or her reasonable needs, the district court is required to consider
all financial resources available to the spouse seeking
maintenance. In re Marriage of Feisthamel (1987), 227 Mont. 321,
326, 739 P.2d 474, 478. Here, the record demonstrates that prior
to the marriage, Michele's financial resources were primarily in
the form of financial aid and AFDC. The undisputed facts indicate
that Michele continues to be eligible for financial aid while she
remains in school. Additionally, the record indicates that she
plans to remain in school. If Michele takes advantage of the
available aid, it is as sufficient to provide for her reasonable
needs as it was prior to the short marriage. Thus, an award of
maintenance in this case is inappropriate.
Furthermore, under these facts, the evidence presented to the
District Court does not support a conclusion under f 40-4-
203(1)(b), MCA, that Michele was unable to obtain appropriate
employment to support herself. The evidence concerning Michele's
employability included the uncontested fact that she was to begin
working within a few days after the conclusion of the dissolution
proceeding under a work study grant which formed only part of her
overall financial aid award from the University. This evidence of
a clerical position paying $5.50 per hour indicates that Michele
has skills necessary to secure appropriate employment to support
herself. Employment in such positions at similar earnings is not
uncommon for college students.
Finally, it appears to me that the District Court's
application of the 5 40-4-203(2), MCA, factors was limited almost
entirely to consideration of the middle-class standard of living
enjoyed during the marriage and Steven's ability to pay. As to the
former, and as discussed above, it is my view that the District
Court and the majority of this Court improperly fail to weigh the
very brief duration of this marriage into the equation of this
case. As to the latter, it is as clear to me as it apparently is
to the majority, and was to the District Court, that Steven "can
afford" to pay the awarded maintenance and that, as a result,
Michele can be helped to obtain her degree. I believe, however,
that it is legally incorrect to mandate such a result under the
facts of this case. Michele's ability to support herself through
appropriate employment was neither hindered nor enhanced by reason
of the parties' unfortunately brief marriage. To require Steven,
already in significantly less favorable financial circumstances as
a result of the marriage, to put Michele in a significantly
improved financial situation leaves me with a definite and firm
conviction that a mistake has been committed. I would reverse.
May 1, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Clinton H. Kammerer
KAMMERER LAW OFFICES, P.C.
101 E. Broadway, Suite 200
Missoula, MT 59802
BRUCE BARRETT
ASUM Legal Services
University Center
Missoula, MT 59812
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA