NO. 91-512
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
JANET D. PEETZ,
Petitioner and Appellant,
and
GARY R. PEETZ,
Respondent
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gail M. Haviland, Worden, Thane & Haines,
Missoula, Montana
For Respondent:
John D. Greef, Attorney at Law,
Hamilton, Montana
Submitted on Briefs: January 16, 1992
Decided: April 21, 1992
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Petitioner Janet D. Peetz appeals from Findings of Fact and
Conclusions of Law and Decree of Dissolution of the Fourth Judicial
District Court, Ravalli County, which divided and distributed the
marital estate, and ordered petitioner to purchase certain real
property from respondent Gary R. Peetz, or sell the property.
petitioner also argues that the court erred in the amount of
maintenance granted, in not awarding her attorney fees, and in not
ordering respondent to provide her with health insurance through
his place of employment.
We affirm.
Petitioner raises several issues relating to the division of
marital property before this Court. However, we will frame the
issues as follows:
1. Did the District Court err in the division of the marital
estate?
2. Did the District Court err in ordering petitioner to
purchase certain real property from respondent within 15 days of
entry of the decree, and ordering its sale if the petitioner did
not purchase the property?
3. Did the District Court err in not requiring respondent to
provide petitioner with health insurance coverage through his place
of employment?
4. Did the District Court err in granting petitioner a
maintenance award of $600 per month for a period of two years?
5. Did the District Court err in not awarding petitioner her
attorney fees?
Petitioner and respondent had been together since October
1981, and were married on August 12, 1983, in Reno, Nevada. At
the time of the marriage, petitioner represented to respondent that
she was 43 years old and wrote that age on her marriage
application. Petitioner was actually 50 years old at the time of
marriage. She had also represented to respondent that she could
bear one or two children. Respondent discovered these facts for
the first time just a few weeks before the parties separated. At
the time of dissolution, petitioner was 58 years old.
Prior to the marriage, petitioner received approximately
$42,000 from a previous divorce settlement. She owed a tax
obligation of approximately $3700, and an accountant bill of $1300.
Both obligations were paid from the respondent's earnings after the
marriage.
In September 1982, petitioner purchased a small tract of land
located near Victor for $85,000, and made down payment on the
property of $20,000. On February 7, 1983, petitioner also made a
prepayment on the land contract which came from a repayment of a
$5000 loan, along with $6671 from a joint savings account, which
money was deposited from respondent's earnings. 1n 1988,
petitioner received a $14,000 inheritance from her mother.
Respondent's estate at the time of the marriage included
personal belongings, a vehicle, motorcycle, travel trailer, and a
savings account from payroll contributions. Respondent worked as
3
a truck driver full time, with occasional layoffs, from the
beginning of the marriage until 1986, when he suffered an
industrial accident which resulted in a disc problem in his back
that continues to restrict his motion and causes considerable pain.
He received approximately $30,000 in workersf compensation benefits
as result of the injury, and used $17,845 to pay off the remaining
debt on the ranch in 1988, Other moneys respondent received during
the marriage were a gift from his parents of $2500 which was placed
in the partiesv joint savings account, and $3300 resulting from a
sale of his motorcycle and travel trailer. The proceeds of this
sale were also deposited in the partiesf savings account and used
for living expenses. Respondent returned to work as a truck driver
in May 1990 and had a monthly net earning capacity of approximately
$2863. However, due to medical restrictions placed upon him, he is
now limited to an average weekly wage of approximately $480 to
$550.
In December 1989, the parties sold the Victor property for
$102,200 in cash. Using the proceeds of this sale, the parties
purchased a small ranch with two houses on Coal Mine Lane near
Darby. Currently petitioner derives some income from renting one
of the houses. The property is held jointly by the parties.
The parties accumulated several items of personal property
which we need not go into in detail. Prior to and during the
marriage, petitioner maintained a horse breeding business/hobby
which operated at a loss. The parties accumulated 25 to 28 horses
during the marriage. Seven of those horses were owned by
petitioner at the time of the marriage, 14 were offspring of the
original seven, and four were purchased by petitioner with her
inheritance. The stipulated value of the horses is $15,000.
Petitioner plans to continue operating her horse breeding operation
after the dissolution of the marriage.
Upon hearing the testimony of the parties and examining the
evidence presented by both parties, the District Court issued its
Findings of Fact and Conclusions of Law and Decree on June 18,
1991. The court found that the total value of the marital estate
was $152,602. The court also held that both parties contributed
roughly equally to the marital estate and divided and distributed
the assets as follows:
WIFE
1. reimbursement for down payment less $37,500
$5,000 tax and accounting obligation
paid by husband
2. reimbursement for investment 5,000
on February 7, 1983
3. less credit to husband for 1/2 of - 8,839
extra value of personal property
distributed to Wife
4. reimbursement for taxes and insur.
paid since the separation of the parties
5. 50% of the remaining equity
Total - $33,661 plus 50% of the remaining sales proceeds.
HUSBAND
1. reimbursement for work comp $17,845
prepayment
2. reimbursement for investment on 6,671
February 7, 1983
3. plus credit for 1/2 of extra value 8,839
of personal property distributed to
wife
4. reimbursement for taxes and insur.
paid since the separation of the parties
5. 50% of the remaining equity
Total - $33,355 plus 50% of the remaining sales proceeds.
Petitioner received $22,640 and respondent received $4962 in
personal property. The court ordered respondent to pay petitioner
monthly maintenance of $600 for two years. The court did not order
respondent to provide health insurance, and did not award attorney
fees. It is from this decree that petitioner appeals to this
Court.
I
Did the District Court err in the division of the marital
estate?
Petitioner contends that the court's distribution of the
marital estate was arbitrary, and lists several findings by the
court she claims resulted in substantial injustice. Petitioner's
specific contentions of error include: (1) crediting the
respondent's lump sum workers' compensation settlement received
during the marriage as an interest in real property and not
including it as the marital estate; (2) crediting the respondent's
interest in the real property for $6671; (3) crediting respondent
for one-half value of the personal property distributed to
petitioner to his interest in the real property; (4) deducting from
the amount of money credited to petitioner as her interest in real
property $5000 fortax and accounting obligations allegedly paid by
respondent; (5) the distribution of the respondent's credit union
account; and (6) allocating a satellite dish to petitioner as
personal property because petitioner claims it is a fixture to the
real property. In addition to the above listed contentions,
petitioner claims that the court erred in its distribution of its
marital estate because she brought substantially more property into
the marriage than respondent and that the court did not consider
the factors established by 5 40-4-202, MCA.
Section 40-4-202, MCA, is the statute which establishes a
guideline for the district courts to follow when distributing the
assets of the marital estate. Section 40-4-202, MCA, reads, in
pertinent part:
(1) In a proceeding for dissolution of a marriage . . .
or division of property following a decree of dissolution
of marriage . . .
the court, without regard to marital
misconduct, shall . .. 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 dividinq
property accmired prior to the marriage . ..
the court
shall consider those contributions of the other spouse to
the marriase, includinq:
(b) the extent to which such contributions have
facilitated the maintenance of this p r o n e r t v . . . .
[Emphasis added.]
Both parties have correctly stated this Court's standard of
review over the District Courtls division of the marital estate:
'$Individing property in a marriage dissolution the
district court has far reaching discretion and its
judgment will not be altered without a showing of
clear abuse of discretion. The test of discretion
is whether the trial court acted arbitrarily
without employment of conscientious judgment or
exceeded the bounds of reason resulting in
substantial injustice."
In Re the Marriage of Gallinger (1986), 221 Mont. 463, 468-69, 719
P.2d 777, 780, (quoting In Re the Marriage of Wessel (1986), 220
Mont. 326, 333, 715 P.2d 45, 50). Thus, our role in reviewing the
district court's findings of fact and conclusions of law in a
decree of dissolution is a limited one.
As we have stated previously, premarital property is a factor
the court shall consider, however, the court is not required to
restore the parties to their premarital status. In Re the Marriage
of Tonne (l987), 226 Mont. 1, 4, 733 P.2d 1280, 1283. Both parties
contributed significantly toward the marital estate. Petitioner
brought into the marriage her equity in the Victor property, as
well as miscellaneous personal property, an inheritance, and other
cash. Respondent facilitated the maintenance of the marital estate
and maintained the partiest lifestyle through depletion of his
savings, his earnings as a truck driver, and his workerst
compensation benefits.
We agree that petitioner and respondent offer conflicting
testimony as to who contributed what and when. In resolving
conflicts in testimony, this Court defers to the district court
because:
The trial court sits in the best position to judge
the credibility of the testimony proffered by the parties
to a dissolution action. Because the District Court had
the opportunity to observe the demeanor of the witnesses,
we defer to its resolution of any conflicting evidence.
In Re the Marriage of Porter (1991), 247 Mont. 395, 398, 807 P.2d
192, 194. It appears -the District Court resolved most of the
conflicting testimony in favor of respondent. Because the court
observed the demeanor and character of the witnesses, and because
there is substantial credible evidence to support the courtts
findings, we hold that the District Court did not abuse its
discretion in the distribution of the marital estate stated above.
Petitioner also contends that the division of the property was
inequitable because the court did not consider her age, occupation,
respective employment history, health, and skills, as required by
!j 40-4-202, MCA. Petitioner was 58 years old at time of trial.
Prior to the marriage she worked as a waitress and as a secretary.
Although she expressed concern over her lack of computer skills
necessary for today's secretary, petitioner testified she could
still work if required. Although petitioner testified she suffered
from gallbladder problems, the court found that petitioner was in
good health. The court held that petitioner's only source of
income at the time of dissolution was rental income from one of the
houses on the Darby property. We hold that the District Court
properly considered the factors listed in 40-4-202, MCA, in
distributing the marital asset, and did not abuse its discretion.
I1
id the District Court err in ordering the petitioner to
purchase the Darby property within 15 days of the decree and
ordering its sale if the petitioner did not purchase the property?
In the decree of dissolution, the court granted petitioner
15 days to purchase the Darby property for $57,984. If she failed
to do so, the parties were ordered to sell the property for
$125,000, unless otherwise agreed upon. Petitioner argues that she
could earn enough income from the breeding and sale of horses and
rent to pay off the respondentI s share of the marital estate. The
horse breeding business cost petitioner $550 per month. The rental
income of the second house was $250. Apparently, the horse
breeding business and rent cannot generate enough income to pay
respondent's share of the marital estate. We hold that the
District Court did not abuse its discretion in ordering the Darby
property to be sold.
I11
Did the District Court err in not requiring the respondent to
provide health insurance coverage for petitioner through his place
of employment?
Petitioner contends that due to her age and gallbladder
problems, the court should have ordered respondent to provide
health insurance coverage for her through his place of employment.
We disagree.
If the property is s o l d a t $ 1 2 5 , 0 0 0 , a s ordered by the court,
petitioner will receive approximately $62,653 from the sale of the
real property, plus $22,640 in personal property. The division of
the marital estate should provide petitioner with sufficient assets
to provide for her health care. We hold that the District Court
did not abuse its discretion.
Did the District Court err in granting petitioner a
maintenance award of $600 per month for a period of two years?
Section 40-4-203(1) and (2), MCA, states that the district
court may grant maintenance for either spouse only if it finds that
the spouse requesting maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment ...
(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
...
(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.
This Court's standard of review on the issue of maintenance
depends on whether the district court has properly considered the
factors listed in 5 40-4-203, MCA, and whether there is substantial
credible evidence to support the findings. In Re the Marriage of
Cannon (1986), 223 Mont. 42, 44, 723 P.2d 951, 953. The District
Court awarded petitioner maintenance of $600 a month for two years.
Petitioner testified that she could return to clerical work, but
voiced concerns about her lack of skill in computers. In a d d i t i o n ,
she stated she could be self-supporting in three to four years.
The District Court awarded maintenance for two years, which it
concluded should be a sufficient amount of time for her to achieve
self-support through education, training, or other employment. We
hold the District Court properly considered the factors in
§ 40-4-203, MCA, and there was substantial credible evidence to
support the amount of maintenance.
Did the District Court err not awarding petitioner her
attorney fees?
S e c t i o n 40-4-110, MCA, permits the district court to order the
parties t o pay attorney fees in dissolution proceedings. It
states:
The court from time to time, after considering the
financial resources of both parties, may order a party to
pay a reasonable amount for the cost to the other party
of maintaining or defending any proceeding under chapters
1 and 4 of this title and f o r attorney's fees, including
sums for legal services rendered and costs incurred prior
to the commencement of the proceeding or after entry of
judgment. The court may order that the amount be paid
directly to the attorney, who may enforce the order in
his name.
The district court is given considerable discretion in the
award of attorney fees. Gallinqer, 729 P.2d at 782. Thus, w e will
not overturn a district court's refusal to award attorney fees
absent an abuse of discretion. Gallinqer, 719 P.2d at 783. In
this instance, petitioner has adequate resources from the division
of the marital estate and award of maintenance to pay her own
attorney fees. We hold that the District Court did not abuse its
discretion in not ordering respondent to pay attorney fees.
We affirm.
We concur: