NO. 93-050
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
NORMAN R. SILVERMAN,
Petitioner and Appellant,
and
MARCIA M. SILVERMAN, ,: ,;;';I
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Respondent and Respondent. STATE OF MONTANA
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Craig R. Buehler, Lewistown, Montana
For Respondent:
Torger S. Oaas, Lewistown, Montana
Submitted on Briefs: June 1, 1993
Decided: July 13, 1993
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Norman Silverman appeals from the portion of the decree
dissolving his marriage to Marcia Silverman which requires him to
pay her maintenance. We affirm the decree entered by the District
Court for the Tenth Judicial District, Fergus County.
The issue is whether the court erred in awarding maintenance
to Marcia Silverman.
The parties were married in 1986 and separated in July 1990.
No children were born of their union, although both have children
from previous marriages.
Norman Silverman, who was fifty-three years old at the time of
the dissolution, is a physician specializing in radiology. Marcia
Silverman, who was thirty-seven years old at the time of the
dissolution, was employed prior to the marriage selling X-ray and
diagnostic medical equipment. During the marriage, the parties
moved to Lewistown, Montana, where Norman ran the radiology
department at the local hospital. Norman's income rose from
$40,000 in 1986 to $385,000 in 1990. After moving to Lewistown,
Marcia did not seek employment outside the home, but served as a
homemaker, mother, and civic volunteer.
When the parties separated, Marcia moved back to Arizona,
where she had lived prior to this marriage. She became re-employed
in her field with an annual base salary of $24,000. Norman moved
to Texas, where he contracted to supply radiology services to a
rural hospital for approximately $400,000 per year.
2
The District Court found that the parties had marital assets
worth $903,000 and debts of $727,900. The assets included two
homes in Lewistown and one in Eagle Bend, outside Bigfork, Montana.
The court further found that the vast majority of the net worth of
$175,000 was acquired during the marriage. It divided the net
worth precisely in half, requiring payment by Norman to Marcia of
$72,500 in cash. Marcia was also awarded the equity in a home in
Phoenix, Arizona, which she had owned prior to the marriage. The
court ordered Norman to pay Marcia, in addition, maintenance of
$1,000 per month for two years.
Norman appealed. In an unpublished opinion, this Court made
minor modification to the District Court's property and debt
division and remanded the maintenance issue for consideration of
the requirements of § 40-4-203(1)(a) and (b), MCA. On remand, the
District Court found:
The court in making this decision is aware that wife was
reemployed at the time of trial and would receive an
award of marital property.
However, as noted in the original memorandum opinion
wife was to immediately incur debts of $34,000.00 asso-
ciated with her move to Phoenix, Arizona where she was
employed. Considering the threshold requirements under
40-4-203(1)(a) and (b), the District Court specifically
finds that wife's earnings and property are insufficient
to meet her reasonable needs in light of these debts.
Therefore, husband shall pay wife maintenance in the
amount of $l,OOO.OO per month over a two-year adjustment
period.
Norman now appeals from the order in which that finding was made.
3
Did the court err in awarding maintenance to Marcia Silverman?
Norman initially questions the court's finding that Marcia
incurred expenses of $34,000 in relocating to Arizona. In its
original findings, the District Court stated that Marcia had to
borrow $8,000 to pay expenses of her move back to Phoenix, purchase
a new car for $16,000 (Norman kept both of the marital vehicles),
and would be required to expend $10,000 to conduct necessary
repairs to her Phoenix home. These figures are supported in
Marcia's testimony and were not contradicted on cross-examination
or in the testimony of other witnesses.
Norman's chief argument is that Marcia is not eligible for
maintenance under the standard set forth at 5 40-4-203(1)(a) and
(b), MCA. That statute provides, in applicable part:
(1) In a proceeding for dissolution of marriage . . . 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 reason-
able needs: and
(b) is unable to support himself through appropriate
employment . . . .
Norman points out that, after the dissolution as modified by this
Court, Marcia had a job, a home with $15,000 in equity, $64,650 in
cash, and other personal property. He maintains the finding that
she lacks sufficient property to provide for her reasonable needs
and is unable to support herself with suitable employment is
clearly erroneous, misapprehends the facts, and is a mistake.
4
The statutory requirements for maintenance must be viewed with
relation to the standard of living achieved by the parties during
the marriage. In re Marriage of Madson (1979), 180 Mont. 220, 224-
25, 590 P.2d 110, 112. Further, the diverse fact situations in
marital dissolutions sometimes justify deviation from the rule
disfavoring maintenance, in the interest of an equitable dissolu-
tion. In re Marriage of Luisi (1988), 232 Mont. 243, 247, 756 P.2d
456, 459. This Court therefore grants wide discretion to district
courts in determining whether maintenance is proper. Luisi, 756
P.2d at 459.
The terms "reasonable needs" and "suitable employment" in the
statement of prerequisites for an award of maintenance under § 40-
4-203(1), MCA, allow room for discretion in tailoring a dissolution
decree to the particular facts before the court. The record
demonstrates that Norman and Marcia maintained a luxurious standard
of living during their marriage and that Norman's level of income
continues to be extremely high. It also demonstrates Marcia's
relatively modest level of income post-dissolution and the
substantial expenses related to her move back to Arizona to resume
employment. In light of these factors, we conclude that the court
did not err in awarding maintenance for a limited duration.
Affirmed.
Chief Justice
we concur:
6
Justice Terry N. Trieweiler dissenting.
I dissent from the opinion of the majority.
By statute, maintenance is only permitted if Marcia lacked
sufficient property to provide for her reasonable needs and was
unable to support herself through appropriate employment. Neither
condition is established by the record in this case. The majority
has, therefore, simply established its own standard for
maintenance. To do so ignores the proper judicial role of simply
applying statutory law as written. Therefore, I dissent from the
majority opinion.
J stice
/
Justice Karla M. Gray, dissenting.
I respectfully dissent from the opinion of the Court, which
attempts to resolve this dispute on the basis of a continued void
in the District Court's findings on the maintenance issue. I would
remand for the entry of sufficient findings with regard to Marcia's
"reasonable needs" and V8suitable employment" vis-a-vis the
maintenance issue.
This is the second time this case has been before the Court.
In an unpublished opinion in the first appeal, we modified and
otherwise affirmed the District Court's determination of the value
of the marital estate, vacated the award of maintenance and
remanded for consideration of the statutory requirements contained
in 5 40-4-203(1)(a) and (b), MCA. We stated that the statute
requires that the court find that a spouse lacks
sufficient property to provide for her reasonable needs
or is unable to support herself through appropriate
employment. The court made no such finding in this case.
We noted that Marcia's then-current earnings were determined by the
court, but that "[iIt is not apparent from the findings that the
threshold requirements of 5 40-4-203(1)(a) and (b), MCA, were
considered in this case."
On remand, the court found "that the original award of
maintenance is still valid." It stated that it considered the
statutory requirements and specifically "found" that Marcia’s
"earnings and property are insufficient to meet her reasonable
needs in light of [certain debts incurred in her post-dissolution
relocation to Arizona]." The District Court made no findings
whatsoever regarding Marcia's living expenses and reasonable needs
or to what extent those needs were unmet by her property and
8
income. It merely made a conclusory statement that the statutory
requirements were met.
I recognize that the district courts of Montana labor under an
ever-increasing workload with insufficient staff and other
resources. While this Court should not impose unnecessarily
onerous requirements, we must require trial courts to provide
sufficient findings on dispositive matters to enable us to properly
exercise our appellate review. It is my view that the District
Court's opinion on remand does not meet the intent of our original
remand: nor does it provide sufficient findings for the appropriate
exercise of appellate review by this Court.
In this instance, the void left by the District Court results
in an opinion by this Court that does not--because it cannot, based
on the trial court's opinion--apply the statutory requirements for
entitlement to maintenance in determining whether the District
Court erred in awarding maintenance. Rather than remand a second
time, the Court apparently prefers to "find a way" to affirm and
finally be done with this case. As a result, the Court's opinion
at very least appears to ignore the legislatively-enacted policy
that maintenance is disfavored in Montana and to undercut the clear
statutory requirements for entitlement to maintenance. I disagree
that it is appropriate to do either. I would remand for the entry
of findings adequate to support the District Court's conclusion
that Marcia is entitled to maintenance.
9
July 13, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Craig R. Buehler
Attorney at Law
505 W. Main St., Ste. 210
Lewistown, MT 59457
Torger S. Oaas
Attorney at Law
P.O. Box 76
Lewistown, MT 59457
ED SMITH
CLERK OF THE SUPREME COURT
STATEIOF MONT$NA