NO. 92-448
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF:
MARTHA J. BURRIS,
Plaintiff and Respondent,
-v-
BILLY C. BURRIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable R D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. Dale Schwanke, Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana
For Respondent:
Daniel A. Boucher, Altman & Boucher, Havre, Montana
Submitted on Briefs: March 18, 1993
Decided: May 13, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from the Twelfth Judicial District Court,
Hill County, continuing a 1974 award of $250 per month for
permanent maintenance to the ex-wife. We affirm.
We consider the following issues on appeal:
1. Did the District Court err in determining that Mr.
Burris was responsible to pay $250 per month maintenance
to his ex-wife, from whom he was divorced in 1974?
2. Did the District Court properly award part of Mrs.
Burris's legal fees?
Martha and Billy Burris were first married in October of 1955.
This marriage was dissolved in 1964. The couple remarried in 1965
and subsequently divorced in 1974. In the 1974 divorce decree, the
court ordered Mr. Burris to pay a $250 per month sum "as and for
permanent alimony." Throughout both marriages, Mr. Burris held a
position as an Immigration Officer of the United States. Mrs.
Burris did not work outside the home but took care of the couple's
three sons. Today Mr. Burris is retired. Mrs. Burris is now
unemployed, although at one time she held a full-time job for five
years at Francis Willard Home for Girls in Tulsa, Oklahoma, as a
group care worker. Following an extended leave of absence in order
to achieve diabetes stabilization, she never returned to work.
Mr. Burris attempted to modify his maintenance obligation in
May of 1975. The District Court denied modification and the $250
award was affirmed by this Court in Burris v. Burris (1976), 171
Mont. 227, 557 P.2d 287. Mr. Burris petitioned again in 1983 for
modification of his maintenance payment. The District Court denied
modification and he did not appeal.
Mr. Burris retired in December of 1989. His last full check
was in January of 1990. He did not receive any of his retirement
pay until July of 1990. Because of this, he was unable to pay the
$250 maintenance to Mrs. Burris until that time. He subsequently
sent her a check for all delinquent months due to this delay.
Meanwhile, in May of 1990, Mrs. Burris filed a notion asking
for certain relief because Mr. Burris had not paid his maintenance
payments for February, March, April and May. Thereafter, Mr.
Burris petitioned the court for elimination of the maintenance
requirement. Subsequently, Mrs. Burris filed a petition for
modification of maintenance, seeking $500 per month.
The District Court denied both parties' petitions, maintaining
$250 monthly award and awarding Mrs. Burris $1,000 of her
attorney's fees and costs. Mr. Burris appeals.
Did the District Court err in determining that Mr. Burris was
responsible to pay $250 per month maintenance to his ex-wife from
whom he was divorced in 1974?
Mr. Burris claims that the District Court erred by determining
that the word vpermanent" defining maintenance payments to his ex-
wife cannot be modified. According to Mr. Burris, his
circumstances have substantially changed due to his retirement and
it is unconscionable that he continue to pay his ex-wife the
maintenance payments. Mr. Burris contends that maintenance awards
are only given ex-spouses until such time as the ex-spouse can
become self-sufficient. Mr. Burris argues that his ex-wife
received college training and had a self-sustaining position but
through her own choices, gave up that position.
According to Mrs. Burris, it was her ex-husband's burden to
establish that his circumstances were substantially changed and
that his continuance to pay the agreed-upon maintenance was
unconscionable. The District Court specifically determined that
Mr. Burris had not met his burden.
Mr. Burris's contention that the District Court determined as
a matter of law that the 1974 award of "permanent" alimony could
not be modified is an incorrect assessment of the District Court's
findings of fact and conclusions of law. In the District Court's
conclusions of law, the court obviously employed the reasoning of
40-4-208 (2)(b)(i), MCA:
(1) Except as otherwise provided in 40-4-201(6), a decree
may be modified by a court as to maintenance or support
only as to installments accruing subsequent to actual
notice to the parties of the motion for modification.
...
(2) (b) whenever the decree proposed for modification
contains provisions relating to maintenance or support,
modifications under subsection (1) may only be made:
(i) upon a showing of chanqed circumstances so
substantial and contiiuinq as t o make the terms
unconscionable. (Emphasis added.)
The court's words were:
Defendant has not shown a substantial chanqe in
circumstances which make the terms unconscionable as to
Defendant and his petition to reduce maintenance ought to
be denied.
It is clear that the court considered the evidence presented to it
in light of the modification provision. It did not, as Mr. Burris
contends, determine that it could not modify the 1974 decree. The
court made a reasoned decision that modification was inappropriate.
A ~istrictCourt's conclusion of law is reviewed as to whether
it is correct. Steer Inc. v. Dept. of Revenue (1990), 245 Mont.
470, 803 P.2d 601. We conclude that the District Court used the
appropriate legal standard in reviewing Mr. Burris's evidentiary
burden.
The District Court supported its conclusions of law with a
lengthy recitation of facts concerning the Burrisesr health,
financial condition and need. The standard of review concerning
these findings of fact is whether the District Courtt findings are
s
clearly erroneous. Marriage of Eschenbacher (1992), 253 Mont. 139,
831 P.2d 1353. Such a determination involves consideration of
whether the facts are supported by substantial evidence, next
whether the court correctly understood the evidence, and finally,
whether, the first two considerations having been met, this Court
still believes a mistake has been made. Interstate Prod. Credit
Assn. v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285.
The District Court stated that Mr. Burris receives only $1400
retirement per month because he withdrew $17,000 from his
retirement. Further, Mr. Burris purchased a new truck while
delinquent in his alimony, Part of the strain on Mr. Burris's
monthly budget, according to the court, comes from monthly truck
payments of $350.29 and monthly property settlement to his second
wife for $468.29. Both of these monthly obligations ended last
year. Thus, Mr. Burris is not now required to pay these out of the
$1,400 he receives each month.
The court also states that Mr. Burris owns real property in
Montana valued at $100,000 as well as property in Oklahoma valued
at $35,000. Mr. Burris received $7,800 in 1989 as a CRP payment on
the Montana land and received $469 monthly from trailer rentals in
that same year. Also, Mr. Burris has $4,500 in a credit union,
approximately $15,000 in stocks, an IRA valued at $5,158.78 and an
interest in Realty Income Corp. worth $3,352.00. This brings Mr.
Burris's worth to in excess of $120,000, not including his
retirement drafts.
Mrs. Burris, on the other hand, currently has no employment,
poor health, $13,000 in savings, $17,000 owed by the Burrisest
three sons, and a 1975 Chevrolet. The court determined that while
Mr. Burris's income has diminished it has not disappeared, so as to
make the $250 per month unconscionable. However, the court also
acknowledged that Mrs. Burris did not do what was necessary to
preserve the $11,000 per year job she had prior to being diagnosed
as a diabetic.
First, we conclude that there is substantial credible evidence
in the record to clearly substantiate the court's assessment of the
Burrises' life situation. The trial transcript bears out the
court's breakdown of financial worth except for $5,000 in an IRA
account which Mr. Burris claims he has now depleted paying his
bills. Therefore, we find substantial evidence to support the
court's findings.
Next we consider whether the court misapprehended the evidence
it had before it. Mr. Burris claims that he never imagined that
the $250 per month payment would be permanent but, if it is, that
such an arrangement cannot be used by courts.
Mr. Burris has known from the original 1974 order that the
$250 award to his ex-wife was In March of 1974, Mr.
Burris filed a motion for new trial and an affidavit by his
attorney objecting to the "permanent alimony." Awards of
maintenance are within the broad discretion of the District Court.
In re Marriage of Tahija (1992), 253 Mont. 505, 833 P.2d 1095. We
do not disturb a District Court's award of maintenance provided
that the award is based upon substantial evidence and exhibits no
clear abuse of discretion. In re Marriage of Cole (l988), 234
Mont. 352, 763 P,2d 39. The court does not abuse its discretion in
awarding permanent or lifetime maintenance if the facts of the case
necessitate such an award. In re Marriage of Gauthier (1982), 201
Mont. 320, 654 P.2d 517. See also In re Marriage of Deichl (l989),
239 Mont. 425, 781 P.2d 254. In both of these cases, we affirmed
grants of lifetime maintenance.
Such discretion to award permanent or lifetime maintenance is
derived directly from the legislature:
(2) The maintenance order shall be in such amounts and
for such periods of time as the court deems iust. ...
(Emphasis added.)
Section 40-4-203 (b), MCA. Given the foregoing law, permanent or
lifetime maintenance can be awarded by a court. The facts of this
particular case show that Mr. Burris understood the permanent
nature of the maintenance, and although he has protested it on
various occasions, both the District Court and this Court have
determined it to be appropriate because of Mr. Burrists superior
financial situation.
In terms of the evidence presented by Mr. Burris regarding his
change of circumstances, it is true that he receives less money now
that he is retired. Mr. Burris claims that pursuant to 5 40-4-
203(f), MCA, he should not have to pay a maintenance award because
he cannot meet his own bills. In opposition to Mr. Burrists
condition, Mrs. Burris currently receives nothing. She is in bad
health and some concern exists as to her employability because of
her health and age. While she attended college she is essentially
in the same position as when maintenance was awarded to her.
In considering whether to modify her maintenance, the District
Court must consider statutory language. In re Marriage of Cooper
(l985), 216 Mont. 34, 699 P.2d 1044. It is clear that the District
Court here considered appropriate elements found in 5 40-4-208,
MCA, because it determined that the changes in Mr. Burris's
financial condition although decreasing his income, did not prevent
him from meeting the maintenance obligation of the 1974 order. In
reaching that determination, the court set out in great detail the
financial facts provided by each party and upon which it relied.
Those facts clearly show that the award of $250 per month to Mrs.
Burris is not unconscionable because Mr. Burris continues to be in
a superior financial position despite his retirement. We conclude
that the District Court did not misapprehend the evidence with
which it was provided.
Finally, after reviewing the entire record we do not feel that
the court has made a mistake in continuing the $250 per month
maintenance award. We conclude, therefore, that the District Court
was not clearly erroneous.
We hold the District Court did not err in determining that Mr.
Burris was responsible to pay $250 maintenance to his ex-wife from
whom he was divorced in 1 9 7 4 .
Did the District Court properly award part of Mrs. Burris's legal
fees?
The District Court awarded Mrs. Burris $1,000 of her $2,966.09
legal fees. The court directed attention to 5 40-4-110, MCA, and
stated that after considering the financial resources of both
parties Mr. Burris is able to pay $1,000 toward Mrs. Burris's fees
because of his "better financial position.I1
Mr. Burris argues that he should not have to pay his ex-wife s
legal fees because any inability she has in regards to payment is
her own fault in losing or not pursuing employment. Mrs. Burris
argues that the District Court appropriately assessed the award of
attorney's fees.
The appropriate statute declares:
.
The court . . 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 chapter 1 and 4 of this
title and for attorney's fees . ..
Section 40-4-110, MCA. We will review an award of attorney fees in
a dissolution action as to whether the court abused its discretion.
Tahiia, 253 Mont. at 511, 833 P.2d at 1099.
The District Court considered carefully the respective
financial situations of the parties and determined Mr. Burris could
reasonably afford to help pay Mrs. Burris's attorney's fees at a
rate of $100 per month. We conclude no abuse of discretion
occurred.
We hold the District Court properly awarded part of Mrs.
Burris1s attorney's fees.
Affirmed.
We Concur:
May 13, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
K. Dale Schwanke
Jardine, Stephenson, Blewett & Weaver
P. 0.Box 2269
Great Falls, MT 59403
Daniel A. Boucher
Altman & Boucher
P. 0. Box 268
Havre. MT 59501
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTAN+4