No. 92-172
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
JOAN L. BROSS,
Petitioner and Appellant,
and
BRIAN ARTHUR BROSS,
Respondent and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RFXORD:
For Appellant:
Stephen C. Mackey, Towe, Ball, Enright
& Mackey, Billings, Montana
For Respondent:
John A. Dostal, Brown, Gerbase, Cebull,
Fulton, Harman & Ross, Billings, Montana
Submitted on Briefs: August 13, 1992
Decided: January 1 2 , 1 9 9 3
1 Filed:
D
.IAN 1 2 1933 Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Joan L. Bross appeals from a decree of dissolution of her
eighteen year marriage to Brian Arthur Bross, entered in the
Thirteenth Judicial District Court, Yellowstone County, on
November 18, 1991. The District Court awarded Joan maintenance in
the amount of $3000 per month for five years and $1000 per month
thereafter, and provided for termination of this award upon the
death of either party, Brian's retirement, or Joan's remarriage or
cohabitation in a ltmarital-like't
relationship.
We affirm in part, and reverse in part.
The issues raised by petitioner are restated as follows:
1. Did the District Court err when it granted petitioner a
maintenance award of $3000 per month for 5 years, and $1000 per
month thereafter?
2. Did the District Court err when it concluded that
petitioner's maintenance award would terminate upon her
cohabitation in a marital-like manner?
3. Was the District Court's conclusion that maintenance
would terminate if petitioner remarried or cohabited in a
marital-like manner a violation of her constitutional rights?
Joan and Brian were married on June 9, 1973. At the time of
their dissolution on November 18, 1991, Brian was 40 years old and
Joan was 39 years old. The couple's two children, Alexandra and
Allen, were 13 and 11 years old, respectively, at the time of the
dissolution.
Joan and Brian met while they were attending Iowa State
University in Ames, Iowa and were married after Brian's graduation.
Joan withdrew from college because she had been doing poorly, and
worked at various jobs during the first few years of their
marriage. Her income provided forthe couple's support while Brian
attended medical school and began his residency. Since their first
child was born in 1977, Joan has not been employed outside of the
home.
The Bross family moved to Billings in 1982 when Brian began
his medical practice as an anesthesiologist. Brian's practice has
been successful, and during the three calendar years prior to
dissolution, Brian's net disposable income, after payment of taxes
and business expenses, averaged approximately $15,000 a month.
Joan and Brian spent almost all of their disposable income each
month on purchases that primarily furthered their lifestyle. Other
than their retirement plans, the parties have no savings nor
investments.
Joan returned to college in 1988 and received her B.A. degree
from Rocky Mountain College in 1991 with a double major in art and
Christian Thought. She has enrolled in graduate school at the
University of Iowa to pursue a Ph.D. in theology and ethics, and
someday hopes to teach college. In that capacity, she expects to
eventually earn an annual salary of $22,000 to $36,000.
After the date of separation, Brian voluntarily paid Joan
$3000 per month for her living expenses, and an additional $500 per
month as support for the one child who was living with her.
However, Joan found she was unable to live on this amount, and
supplemented it with about $500 a month from her share of the
proceeds from the sale of their airplane.
Joan and Brian were able to agree on issues involving child
custody, child support, and property division, but were unable to
agree on the amount and duration of spousal maintenance. Joan
requested $66,000 per year for eight years; $48,000 per year for
the next five years; $36,000 per year until her 65th birthday; and
$30,000 per year thereafter. Joan also requested a continuation of
$30,000 per year maintenance in the event of her remarriage. Brian
offered to pay maintenance of $36,000 per year for five years,
asserting that this was a reasonable time for Joan to complete her
Ph.D., and that she should then be able to support herself.
The court entered its findings of fact and conclusions of law,
and issued the final decree on November 18, 1991. Joan was awarded
$3000 per month for five years and $1000 per month thereafter.
Maintenance is to cease upon the death of either party, Brian's
retirement, or Joan's marriage or cohabitation in a marital-like
relationship. While Joan is living in Iowa City, Brian will be the
primary residential custodian. However, the children will be with
Joan for two months each summer and during certain holiday periods,
and during those times Brian will pay child support to Joan in the
amount of $500 per month per child.
Joan moved to amend or make additional findings, amend
judgment, and for a new trial on the issue of maintenance. These
motions were denied by an order dated January 15, 1992. From this
order, Joan appeals.
STANDARD OF REVIEW
When reviewing an award of maintenance, we will affirm the
district court's findings unless they are clearly erroneous. h r e
Mam'ageofDorville (Mont. 1992), 836 P.2d 588, 589, 49 St. Rep. 658;
In re Marriage of Eschenbacher (Mont. 1992), 831 P.2d 1353, 1355, 49
St. Rep. 393, 394.
Did the District Court err when it granted petitioner a
maintenance award of $3000 a month for five years, and $1000 a
month thereafter?
Before a court may award maintenance, it must find that the
spouse seeking maintenance lacks sufficient property to provide for
her reasonable needs and is unable to support herself through
appropriate employment. Section 40-4-203(l), MCA. Once this
threshold has been met, the court must then consider the factors
set out under 5 40-4-203 (2), MCA, when deciding the amount and
duration of maintenance:
(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.
We have said that while a district court must consider each of
these factors, it is not necessary for the court to set forth a
specific finding for each element. To determine the final
maintenance award, all relevant facts should be considered by the
court as a whole. ZnreMam'ageofDunn (1991), 248 Mont. 95, 99, 809
P.2d 571, 573.
In this case, the parties agreed that a maintenance award was
appropriate. Our review will be limited to the question of whether
the court's findings as to amount and duration were clearly
erroneous.
After considering the evidence and the court's findings, we
conclude that the court did properly consider each of the factors
under 5 40-4-203(2), MCA, and that substantial evidence exists to
support the court's findings. The court reviewed the proposed
monthly expenditures, the couple's work history and skills, the
standard of living Brian and Joan had attained, and present and
future employment prospects. The court also had before it
information regarding Joan's likely expenditures while attending
school in Iowa, her anticipated housing and educational costs, and
heard testimony regarding the expected length of time it would take
Joan to complete her Ph.D. The court was aware of how the couple's
property had been divided, and whether there were any
income-producing assets.
It is not a question of whether we could be persuaded to reach
a different conclusion after considering the same evidence. The
test is whether the District Court had adequate evidence to support
its conclusions. In this instance, we hold that the court's
findings were supported by substantial evidence and are not clearly
erroneous.
Joan contends that the court did not place enough emphasis on
the standard of living she had enjoyed during her marriage, and
argues that this should have been the determinative factor, rather
than her reasonable needs. As we made clear in Dunn, no one factor
is determinative, and all relevant facts must be considered as a
whole in determining the final award. D m , 809 P.2d at 573.
The record shows that the court did consider the couple's
standard of living, noting that Joan's requested maintenance would
comport with her established standard of living. However, after
considering all relevant facts, the court concluded this was more
than her reasonable needs. Since Joan would be entitled to no
maintenance if she had sufficient income to pay for her reasonable
needs pursuant to 5 40-4-203(1), MCA, it is logically inconsistent
to assert that her reasonable needs should not be considered in
arriving at the amount of maintenance to which she is entitled.
Joan also asserts that it was error for the court to ignore
the tax impact in determining the amount of maintenance. In its
findings of fact, the court did acknowledge that Joan's
expenditures included a provision for tax liability but made no
specific reference to the fact that her award of $3000 per month
will be taxed. Joan cites In re Marriage of L e (1991), 249 Mont. 516,
e
816 P.2d 1076, for the proposition that it was error for the court
to not specifically address the tax consequences of the award.
Joan's reliance on Lee is misplaced because that case involved the
equitable distribution of marital property rather than a
maintenance award. We will not invalidate the court's decision in
regard to a maintenance award due to the fact that tax liabilities
were not specifically addressed.
If
Did the District Court err when it concluded that petitioner's
maintenance award would terminate upon her cohabitation in a
marital-like manner?
The District Court placed an additional durational limitation
on Joan's maintenance award when it included a provision for
termination if Joan cohabits in a marital-like manner. However,
there is no basis in law nor fact for such a limitation.
Specifically, 5 40-4-203(2), MCA, providesthat a "maintenance
order shall be in such amounts and for such weriods of tin@ as the
court deems just, without regard to marital misconduct, and after
considering all relevant facts ... .'I (Emphasis added.) Based
on the relevant facts, the District Court found that a reasonable
duration for maintenance was five years at $3000 per month, and
$1000 per month thereafter, subject to offsets depending on Joan's
income.
Termination of that award is provided for in 5 40-4-208, MCA,
under the following circumstances:
(1) a change in circumstances so substantial and
continuing as to make the award unconscionable; and
(2) the recipient's remarriage.
Here, without any facts to support such a presumption, the court is
assuming that if Joan cohabits, there will be a substantial change
in her financial circumstances. That presumption is not supported
by substantial evidence and is, therefore, clearly erroneous.
Furthermore, we have previously held that cohabitation is not
subject to 5 40-4-208(4), MCA, which provides for the automatic
termination of maintenance upon the remarriage of the recipient
spouse. InreMam'ageofBourque (1990), 241 Mont. 38, 43, 785 P.2d 699,
702. (Section 40-4-208(4), MCA, did not apply where a party was
alleged to be living with another person in a quasi-marital
relationship.) Absent a showing of changed circumstances which
would justify a modification of maintenance, maintenance will not
automatically terminate when a recipient spouse cohabits with
another individual.
We therefore reverse that part of the District Court's
judgment which terminated Joan's continued right to maintenance
based on cohabitation in a marital-like state.
I11
Was the District Court's conclusion that maintenance would
terminate if petitioner remarried or cohabited in a marital-like
manner a violation of her constitutional rights?
Joan contends that the court's provision terminating
maintenance should Joan cohabit in a marital-like manner violates
her constitutional rights to due process, privacy, and equal
protection. Furthermore, she asserts that 5 40-4-208(4), MCA,
which provides for termination of maintenance upon the recipient's
remarriage, is unconstitutional in that it violates her
constitutional guarantee to equal protection under the law.
We will not consider Joan's constitutional claims on the
cohabitation provision since we have reversed the District Court on
this issue and her claims are moot. In regard to Joan's challenge
of 5 40-4-208(4), MCA, it is well established that a party does not
have standing to challenge the constitutionality of a statute
unless he has been adversely affected by the challenged statute.
,
Allmaras v Yellowstone Basin Properties (1991) 248 Mont. 477, 480, 812 P. 2d
.
770, 771: Statev.Booke (1978), 178 Mont. 225, 230-31, 583 P.2d 405,
409. Joan has not been adversely affected by the statute in
question because her maintenance award has not been terminated due
to remarriage, and she presents no facts to suggest that she has
plans to remarry which are being frustrated by this provision. As
such, we hold that Joan does not have standing to challenge this
statute under the Montana Constitution.
Accordingly, the decision of the District Court to award Joan
maintenance in the amount of $3000 per month for five years, and
$1000 per month thereafter, to terminate upon the death of either
party, ~rian's retirement, or Joan's remarriage is affirmed.
However, the restriction which would terminate maintenance upon
Joanfs cohabitation in a marital-like manner is reversed and this
case is remanded for appropriate modification of the decree.
We concur:
chief Justice
January 12, 1993
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Stephen C. Mackey
Towe, Ball, Enright & Mackey
P.O. Box 30457
Billings, MT 59107-0457
John A. Dostal
Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross
P.O. Box 849
Billings, MT 59103-0849
E D SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA