No. 91-454
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
SHIRLEY ANN HARRIS,
Petitioner and Respondent,
and
RICHARD THOMAS HARRIS,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Robert W. Holmstrom, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kevin T. Sweeney, Sweeney & Healow,
Billings, Montana.
For Respondent:
Linda L. Harris, Harris Law Firm,
Billings, Montana.
Submitted on Briefs: January 16, 1992
Decided: March 26, 1992
Filed:
Clerk
Justice Terry N. Trieweiler delivered the opinion of the court.
On May 16, 1990, Shirley Ann Harris petitioned for dissolution
of marriage in the ~hirteenth Judicial ~istrict Court in
Yellowstone County. The District Court dissolved her marriage to
Richard Thomas Harris, distributed the marital e s t a t e , and awarded
Shirley maintenance i n the amount of $800 per month. The court
denied Richard s motion for a new trial or amendment of the court ' s
findings and judgment, ~ichardappeals. We affirm.
The issues are:
1. Did the District Court err when it found that Shirley was
permanently disabled and had no future ability to work?
2. Did the District Caurt err when it concluded that the
antenuptial agreement between the parties did not preclude an award
of maintenance?
3. Did the District Court err when it found that Shirley's
needs justified $800 per month in maintenance?
4. Did the District Court err when it found that Richard
could afford to pay $800 per month in maintenance?
Richard and Shirley were married on November 23, 1984. Both
had been married previously. On that same day, they had executed
an antenuptial agreement that essentially renounced any claims each
party might have against the previously acquired property of the
other in the event of a dissolution of their marriage. The
marriage produced no children.
Early in the marriage Shirley developed bladder cancer. She
underwent urostomy surgery, a procedure that involves removal of
the cancerous bladder and construction of a replacement bladder
from the patient's own tissue. The new bladder does not perform as
well as the old one, and consequently she must urinate frequently
and is susceptible to bladder infections. The Social Security
Administration has determined that she is permanently and totally
disabled. At the time of trial she was 54 years old.
Richard is a semiretired real estate broker. He had
accumulated substantial assets prior to the marriage. At the time
of trial he was 63.
On June 7 , 1991, the District Court issued its findings of
fact and conclusions of law. The court dissolved the marriage,
distributed the property of the parties according to the
antenuptial agreement, and awarded Shirley $800 per month as
maintenance. The court also awarded Shirley reasonable attorney
fees .
After the District Court issued a final decree of dissolution
on June 27, 1991, Richard moved for a new trial or amendment of the
findings and judgment. Richard argued that the court had erred in
(1) calculating his income and expenses; and (2) awarding
maintenance in contravention of the antenuptial agreement. The
court denied Richard's motion on July 30, 1991. Richard appeals.
Did the District Court err when it found that Shirley was
permanently disabled and had no future ability to work?
Richard argues that the court erroneously admitted hearsay
evidence by allowing Shirley to testify that her doctor had told
her she was totally disabled and unable to work. He contends that
without this hearsay evidence, the record contains no credible
evidence from which the ~istrictCourt could find that Shirley was
disabled and unable to work. We cannot agree with this
characterization of the record.
First, the District Court did not admit hearsay evidence. The
key portion of the transcript reads as follows:
Q. Do you anticipate you will ever be able to work?
A. [By Shirley] No.
Q. Have you been so advised by your physician?
MR. SWEENEY: Objection, Your Honor. Hearsay.
THE COURT: Overruled.
Q. Are you wresentlv livinq in Columbia. Missouri?
[Emphasis added.]
After the court overruled Richard's objection, Shirley's attorney
switched topics and never returned to the subject of what Shirley's
doctor told her about whether she could work. Thus, Richard's
hearsay argument lacks merit.
Second, the record contains other evidence from which the
District Court could find that Shirley was unable to work. Early
in her direct examination, Shirley testified without objection that
the Social Security Administration had determined that she was
totally disabled. She also expressed her own opinion that she was
unemployable. There was no objection to that opinion, and no
qualified opinion to the contrary.
In appeals from judge-made findings of fact, we defer to the
t r i a l court's opportunity to l i s t e n to and observe t h e witnesses a s
they testify under oath. The standard of review for all judge-made
findings of fact is whether they are "clearly erroneousw within the
meaning of Rule 52, M.R.Civ.P. Waldenv.State (Mont. 1991), 818 P.2d
1190, 48 St.Rep. 893. Based on its assessment of the weight of the
evidence, the court found t h a t t h i s 54-year-old woman with an
artificial bladder who was classified as totally disabled by the
Social Security Administration could not work, This was not
l'clearly erroneous.
We hold that the District Court did not err when it found that
Shirley was permanently disabled and had no future ability to work.
11
Did the District Court err when it concluded that the
antenuptial agreement between the parties did not preclude an award
of maintenance?
Richard argues that the court's maintenance award was
erroneous in light of the 1984 antenuptial agreement between the
parties. Generally, this agreement indicates a waiver by each
party of any claim to the previously acquired property of the other
in the event of a dissolution of their marriage. The District
Court actually followed this scheme in its distribution of the
marital estate.
Richard, however, contends that the court did not go far
enough and that the agreement also prohibited any future award of
maintenance if the payment came from income derived from that
property. He asserts that Shirley waived her right to maintenance
in this agreement and that the District Court was bound by its
terms. We reject both parts of this argument.
The relevant portions of the agreement provide as follows:
3. [Shirley] further agrees that in the event of
the dissolution of marriage or separation of parties or
the death of [Richard], the aforementioned property, or
the proceeds therefrom, shall be excluded from the
determination of the amount of specific property
[Shirley] shall be entitled to receive by reason of her
marriage to [Richard]. [Richard's] property shall not be
considered either directly or indirectly in any
determination of the nature and extent of her marital
rights.
7. After the solemnization of the marriage between
the parties, property acquired by a party which is
intended by that party to be separate property may be put
in the separate name of the acquiring party and such
property shall be the separate property of the acquiring
party. Each party agrees in consideration of said
contemplated marriage that each waives, releases and
relinquishes to the other party all right to the use and
control of the other party's separate property and estate
and income therefrom. ... Each party relinquishes or
agrees to relinquish any and all claims to or for the
separate property of the other party in the event of a
dissolution of marriage or separation of the parties.
Each party also specifically agrees that in the event of
the dissolution of marriage or separation of the parties,
each party Is separate property shall be excluded from the
determination of the amount of specific property each
would be entitled to receive from the other by reason of
his or her marriage to the other.
Richard suggests that by considering his net worth in awarding
maintenance, the court "indire~tly'~
considered his property in
determining Shirley's marital rights, and that this contravenes the
agreement.
We disagree. The quoted language deals only with property
division. It is silent on the question of maintenance. In Bakerv.
Bailey (1989), 240 Mont. 139, 143-44, 782 P.2d 1286, 1288, we said
"[wlhere the language of a written contract is clear and
unambiguous, there is nothing for the court to construe." Because
this contract is clear and unambiguous, we decline Richard's
invitation to construe the word "indirectly" as synonymous with
"maintenance." The agreement by its terms does not expressly
prohibit a maintenance award.
Additionally, at the time the parties executed the antenuptial
agreement the law did not recognize maintenance waivers. In Stefonick
v. Stefonick (1946), 118 Mont. 486, 167 P.2d 848, we considered an
antenuptial agreement that purported to waive the wife's right to
maintenance in the event of divorce. We held that that part of the
agreement was void for being contrary to public policy. Stefonick,
167 P.2d at 854.
We recognize that the Uniform Premarital Agreement Act
modified our holding in Stefonick, and that parties may now contract
Ear the llmodification elimination of spousal support." Section
or
40-2-605 (1)(d), MCA. However, the Uniform Premarital Agreement Act
is a product of the 1987 legislature, see ch. 189, 1987 Mont. Laws
316, and was not the law in 1984 when the parties executed the
antenuptial agreement at issue in this case.
As the District Court pointed out:
A careful review of the Ante-Nuptial Agreement discloses
that it was not [intended] nor does it by implication,
purport to be a waiver or release of any claim either
party may have for spousal maintenance. It seems obvious
that the agreement was drawn having in mind the decision
of the Montana Supreme court in Stefonick v Stefonick, 118
.
Mont. 4 8 6 , 500, 167 P.2d 848, wherein the Court held that
a provision in an Ante-Nuptial Agreement providing that
'!The other party shall never be called upon to pay
alimony, separate maintenance, cost of suit or any other
expense incurred by the party bringing the actiontt was
void as against public policy. It is clear that the
drafter of the document was well aware of the S~efonick
decision and purposely did not include in the agreement
a provision which would be subject to being held as void
in violation of public policy.
W e agree with t h e District Court. Richard cannot argue now that
the agreement contains by implication a provision that would have
been void as contrary to public policy at the time the parties
executed it.
We hold that the ~istrictCourt did not err when it concluded
that the antenuptial agreement between the parties did not preclude
an award of maintenance.
Did the District Court err when it found that Shirley's needs
justified $800 per month in maintenance?
In addition to arguing that the court had no authority to
award any maintenance at all, Richard also argues that the court
awarded too much maintenance in light of the Ilsh~rt~~
six-year
marriage of the parties. He asserts that the highest net income
ever available to Shirley before the marriage was $855.80, that she
has monthly Social Security income of $526.00, and that therefore
the court should have awarded only $329.80 ($855.80 minus $526.00)
in order to duplicate her premarital standard of living. The flaw
in this contention is that it considers only the duration of the
marriage.
Richard cites In re Mamaageo Lundvall (1990), 241 Mont. 172, 786
f
P.2d 10, in support of his argument that the court's maintenance
award was too high in light of the short duration of this marriage.
In that case we said:
While the duration of a marriage is a factor to be
considered in connection with the award of maintenance,
3 40-4-203, MCA, it is not an overriding factor so as to
preclude consideration by the D i s t r i c t Court of other
equitable reasons set forth in the statute for the award
of maintenance.
Lundvall, 786 P.2d at 12-13.
~urationis only one of the statutory factors we alluded to in
Luridvall. The court must a1 so conside:r, among other factors, Itthe
financial needs of the party seeking maintenance, "the standard of
living established durins the marriage," and "the age and the
physical and emotional condition of the spouse seeking
maintenance. It Section 4 0 - 4 - 2 0 3 (2), MC.A (emphasis added) . Based on
these factors, the court found that Shirley's reasonable needs
amounted to $1450. After reviewing the record we conclude that
this finding was not "clearly erroneous."
W e hold that the District Court did not err when it Eound t h a t
Shirley's needs justified $800 per month in maintenance.
IV
Did the District Court err when it found that Richard could
afford to pay $800 per month in maintenance?
Richard's final argument is that he no longer has sufficient
wealth t o pay $800 i n maintenance and still meet his own needs. He
asserts that he has annual expenses, excluding the maintenance
award, of $20,350.92 and that his annual income is only $22,219.00.
Under the court s maintenance award, h i s annual expenses will be
$29,950.92. He cites 9 40-4-203 (2)(f), MCA, for the proposition
that the court had to consider his ability to pay maintenance, and
contends that he cannot pay annual expenses of $29,950.92 on an
annual income of $22,219.00.
The District Court, however, found Richard's annual income to
be considerably greater t h a n $22,219.00. In his Rule 28 Statement,
a financial summary prepared and submitted according to local court
rules in dissolution cases in the Thirteenth Judicial District,
Richard adjusted his gross annual income downward to reflect
depreciation and payments on certain non-income producing
properties. The court's memorandum accompanying its denial of
Richard's motion for a new trial clearly indicates the c o u r t found
that allowing Richard to claim these deductions would distort his
actual income. The District Court found that without these
deductions the actual income which Richard had at his disposal was
closer to $30,000 per year. There was substantial evidence to
support that finding. We conclude that it was not clearly
erroneous.
We hold that the District Court did not err when it found that
Richard could afford to pay $800 per month in maintenance.
Af finned.
We concur:
Chief Justice
& Justices
&
March 26,1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Kevin T.Sweeney
SWEENEY & HEALOW
1250 15th St. W., Suite 202
Billings, MT 59102
Linda L. Harris
HARRIS LAW FIRM
Main Plaza, 926 Main St,, Suite 15
Billings, MT 59105
ED SMITH
CLERK OF THE SUPREME COURT
BY: