NO. 93-422
I N THE SUPREME COURT O F THE STATE O F MONTANA
1994
I N RE THE MARRIAGE O F
JOSEPH MARTIN BARKER,
Petitioner and A p p e l l a n t ,
and
K R I S T E E N MAUD BARKER,
Respondent and Respondent.
APPEAL FROM: District C o u r t of the Thirteenth ~ u d i c i a l
District,
In and for the County of Yellowstone,
T h e Honorable Russell K. F i l l n e r , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
Jerrold L. Nye; Nye & Meyer, ~ i l l i n g s ,Montana
F o r Respondent:
W. C o r b i n H o w a r d , A t t o r n e y a t L a w , B i l l i n g s ,
Montana
S u b m i t t e d on B r i e f s : December 9 , 1993
~ e c i d e d : March 10, 1 9 9 4
Filed:
Justice John Conway ~arrison'delivered h e Opinion of t h e Court.
t
Appellant Joseph Martin Barker (Joseph) appeals the
distribution of marital property, the maintenance award to Kristeen
Maud Barker (Kristeen), and the findings of fact and conclusions of
law as set forth by the Thirteenth Judicial District Court,
Gallatin County. We affirm.
Three issues are before this Court:
1. Did the District Court equitably divide the marital
property?
2. Did the District Court err by awarding maintenance to
Kr isteen?
3. Did the District Court err by adopting, nearly verbatim,
KristeenJs proposed findings of fact and conclusions of l a w ?
Joseph and Kristeen were married on September 2, 1967. They
live in Billings, Montana, and have two children, both of whom are
now adults and enrolled in college. For most of the marriage,
Joseph was an insurance salesman. After two years of being
unemployed, he is again selling insurance. Joseph is also a
reservist in the National Guard. Kristeen w a s a school teacher
until 1982, when she quit to become a housewife. Kristeen is now
working at a flower shop.
This case arises from the dissolution of the couple's twenty-
six year marriage. Following a hearing on April. 22, 1993, the
District Court issued its findings of fact, conclusions of law and
decree on June 15, 1993. The ~istrictCourt valued the parties'
marital estate (net)--the majority of which was the family home--at
$53,300. It awarded $45,055, or 84 percent of the marital estate,
to Kristeen. The remaining $8,545, or 16 percent of the marital
estate, went to Joseph. In addition, the court awarded Kristeen
maintenance of $150 per month "until she remarries, cohabits, dies,
or for five years, whichever occurs first." Joseph appeals.
I
Did the District Court equitably divide the marital property?
Joseph and Kristeen have two assets of monetary significance:
their home and Joseph's forthcoming military pension. Joseph and
Kristeen purchased their home in 1974. At the time of trial, the
home was worth $60,000; however, it was encumbered by an $18,000
mortgage. From 1991 through 1993, Joseph was not employed. The
couple fell seriously behind on its mortgage payments on three
occasions. To avoid foreclosure, Kristeen and Joseph borrowed
$6,500 from relatives. Additionally, Kristeen borrowed $3,000 from
First Interstate West Bank.
Kristeen has remained in the family home and has made monthly
mortgage payments of $305 since the couple separated in May 1992.
She wants to keep the home. In August 1992, just before the house
was to be sold in a foreclosure sale, Joseph told Kristeen that she
should let the bank foreclose on the house. Instead, Kristeen
secured the help of a clergyman to co-sign for a $3,000 loan and
saved the home from foreclosure.
Joseph and ~risteen agreed that Kristeen should keep the
family home. However, at trial, Joseph requested one-third of the
homers equity, or $14,000, and suggested that Kristeen be given six
months to pay him that amount. To obtain the $14,000, Joseph was
willing to participate in refinancing the home. The District Court
awarded Kristeen the family home, including the total equity and
debt associated with the home.
According to Joseph, the District Court's total award of
equity to Kristeen is not supported by the facts or by any Montana
case law dealing with the equitable division of home equity.
Joseph argues that he and Kristeen are facing financial
difficulties, and neither of them can pay their expenses. Joseph
points to the necessity of obtaining an additional loan during the
parties' separation as evidence that Kristeen cannot make the
mortgage payments. Therefore, selling the house "is the only
reasonable alternative for the parties" and it would "relieve the
wife of debt and make assets available to her for her expenses."
Joseph draws an analogy between this case and In re Marriage
of Martens (1981), 196 Mont. 71, 637 P.2d 523. In Martens, the
wife was awarded two-thirds of the home equity and the husband one-
third. In that case, we stated:
The distribution of the equity in the house was based on
the wife's acceptance of responsibility for it in the
months prior to trial, her ability to continue this
responsibility, and her desire to continue to do so when
the husband did not express such a desire.
Martens, 637 P.2d at 526. Joseph also refers us to In re Marriage
of Rogers (l987), 226 Mont. 163, 734 P.2d 677. In Roqers, this
Court ordered the sale of the family home and an equal division of
the proceeds. Kristeen, in turn, refers us to cases where spouses
have received equitable, though unequal, property distributions.
See In re Marriage of Hecht (l982), 199 Mont. 363, 649 P.2d 1257
(wife received the entire equity in the home and 81 percent of the
partiesr net worth) ; In re Marriage of Sirucek (1986), 219 Mont.
334, 712 P.2d 769 (this Court approved an 18 percent to 82 percent
split of the parties1 net worth).
In the present case, the District Court also awarded Kristeen
45 percent of Joseph's military pension, which he will only be
eligible to receive if he completes five more years of service in
the Reserves. The court noted that Kristeen receives 45 percent of
nothing if Joseph fails to complete his twenty-year service
requirement. While Joseph does not specifically challenge the
percentage award of his military pension, he does challenge the
overall "vastly disproportionateI1 division of property considering
the parties' "equal contributionu to the marital estate.
In reviewing factual findings which divide marital property,
our standard of review is "whether the district court's findings
are clearly erroneous." In re Marriage of Danelson (l992), 253
Mont. 310, 317, 833 P.2d 215, 219 (citations omitted). We review
the district court s conclusions of law de and examine whether
the court correctly interpreted the law. Danelson, 833 P.2d at
Montana courts analyze the allocation of marital property
under L 40-4-202(1), MCA, which provides in pertinent part:
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 dividing property acquired
prior to the marriage: property acquired by gift,
bequest, devise, or descent; property acquired in
exchange for property acquired before the marriage or in
exchange for property acquired by gift, bequest, devise,
or descent; the increased value of property acquired
prior to marriage; and property acquired by a spouse
after a decree of legal separation, the court shall
consider those contributions of the other spouse to the
marriage, including:
(a) the nonmonetary contribution of a homemaker:
(b) the extent to which such contributions have
facilitated the maintenance of this property; and
(c) whether or not the property division serves as
an alternative to maintenance arrangements.
The district court must achieve an equitable distribution of the
marital estate, not an equal distribution. In re Marriage of
Shelton (1986), 219 Mont. 456, 459, 712 P.2d 782, 784. We grant
the district court broad discretion to equitably apportion the
marital property. Sirucek, 712 P.2d at 774.
The District Court rejected Joseph's request for $14,000 of
equity in the home, finding that: 1) Joseph presented no evidence
of the feasibility of refinancing the home; 2) the parties have
poor credit and it would be highly unlikely that either or both of
them could afford refinancing and associated costs; 3) since the
separation, the home has only been saved through Kristeen's
unilateral efforts: and 4) a decree requiring Kristeen to pay
Joseph $14,000--absent refinancing the family home, which would
double the existing encumbrance--would force Kristeen from her
home. The court also declined to award Joseph equity in the home
because he has a "substantially greater earning capacity" than
Kristeen; because Kristeen saved the home from foreclosure and if
it had been up to Joseph, there would be no equity to divide;
because Kristeen wishes to stay in the family home; and because
Joseph would receive very little net present value on a sale of the
home.
The court found that Joseph's expenses were overstated,
because he now lives with another person who is employed full-time
and contributes to their joint expenses. The court considered
Kristeen's chances of returning to the teaching profession--noting
her twelve-year absence from teaching and that she has an
application on file with the school system--as opposed to the
likelihood that she will remain employed in the flower shop. The
court noted that Kristeen voluntarily quit her position as an
English teacher because she and Joseph mutually agreed that she
should stay home to care for the children. The court also found
that Kristeen has no investments or savings.
It is apparent that the District Court considered Kristeen's
monetary and non-monetary contributions to the marriage and marital
home over the twenty-six years of the marriage. The findings of
fact illustrate the court's thorough consideration of the factors
set out in 5 40-4-202(1), MCA. The District Court's findings as to
the division of marital property are well supported by the record
and are not clearly erroneous. We hold that the ~istrictCourt
properly followed g 40-4-202 (I), MCA, and correctly interpreted the
law.
Did the District Court err by awarding maintenance to
Kristeen?
The court awarded Kristeen $150 per month maintenance "until
she remarries, cohabits, dies, or for five years, whichever occurs
first." After taxes, the total maintenance award will come to $123
per month.
A maintenance award will not be overturned unless the district
court's findings are clearly erroneous. In re Marriage of Sacry
(l992), 253 Mont. 378, 381, 833 P.2d 1035, 1037 (citation omitted).
Maintenance is governed by g 40-4-203, MCA. That statute provides
that the court can award maintenance if it finds that the spouse
seeking 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.
Section 40-4-203, MCA.
Joseph argues that before a court makes an award of
maintenance, there must be an equitable division of marital
property. See In re Marriage of Eide (1991), 250 Mont. 490, 821
P.2d 1036. He further contends that a reversal of the property
division also requires a reversal of the maintenance award. See
Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072. Because we
determined that the property division in this case was equitable,
we are not reauired to reverse the court's maintenance award. See
Vivian, 583 P.2d at 1075 (emphasis added).
According to Joseph, maintenance is only required when the
spouse seeking maintenance lacks sufficient property to provide for
her reasonable needs and she is unable to support herself through
appropriate employment. See § 40-4-203, MCA. Joseph suggests that
because Kristeen is a certified teacher, "there is no reason to
doubt that she will eventually find a position." Joseph further
challenges the court's finding that he has the ability to pay
maintenance. Specifically, he contests the District Court's
determination of his income.
Joseph contends that Kristeen created her financial situation
by refusing to sell the house, an encumbrance which he suggests is
not a reasonable need. See In re Marriage of Garner (1989), 239
Mont. 485, 781 P.2d 1125. In Garner, this Court held that:
the trial court did not abuse its discretion in failing
to order maintenance payments which are not necessitated
by Margaret's "reasonableu needs but rather through her
voluntary decision to choose a piece of property which
consumed income.
Garner, 781 P.2d at 1128. However, as Kristeen correctly asserts,
Garner has no relevance here. Garner dealt with a wife who held
recreational property at Flathead Lake. She was a law student in
California with a promising employment future. In fact, as a first
year law student, she made at one point $800 per week working for
a law firm. In addition, she also received nearly $100,000 in cash
as part of her property award.
In the case before us, we are dealing with a woman of modest
means. While Kristeen is a certified teacher, she is currently
employed as a salesperson for a Billings florist. After taxes, her
net monthly income is $859. Her mortgage payment is $305 per
month.
The District Court determined that Kristeen's listed monthly
expenses of $1,682 are reasonable and necessary "especially
considering the allocation of over 80 percent of the parties' debt
to her." Although Kristeen's teaching credentials are on file with
the school district and she "constantly" inquires as to whether any
teaching positions are available, the court found that Kristeen has
"no prospect of [her] income changing substantially."
The court found that Kristeen is "unable to fully support
herself through her present employment." The District Court
further considered: Kristeen's financial resources; the property--
including equity and debt--apportioned to Kristeen; Joseph's
ability to meet his own needs; Joseph's current employment/net
monthly income of $1,176, based on his commissions after two months
of work and his monthly National Guard stipend and annual training
pay; that Joseph lives with a person who is employed full-time and
contributes to their joint expenses; and that Joseph and the person
with whom he lives are jointly contributing to the support of her
adult children.
The record clearly supports the District Court's maintenance
award of $ 1 5 0 per month, for a period not to exceed five years, to
Kristeen. The court fully considered the factors set out in 9 40-
4-203, MCA, when awarding maintenance to Kristeen. We hold that
the District Court's findings are not clearly erroneous.
Did the District Court err by adopting, nearly verbatim,
Kristeenls proposed findings of fact and conclusions of law?
Joseph contends that, with two minor exceptions--reduction of
maintenance from $ 2 0 0 to $ 1 5 0 per month and denial of attorney's
fees to Kristeen--the District Court erred by adopting Kristeenls
findings of fact and conclusions of law verbatim. In support of
his contention, Joseph cites In re Marriage of Kukes (1993), 2 5 8
Mont. 324, 8 5 2 P.2d 655. According to Joseph, Kukes stands for the
following proposition:
[Wlholesale acceptance by the District Court of one
party's findings of fact and conclusions of law is error
as it indicates a lack of proper consideration of the
facts and failure to use independent judgment.
Joseph is mistaken. In m,we stated that
[elrror occurs when the court accepts one party's
proposed findings of fact without proper consideration of
the facts and where there is lack of independent judgment
by the court.
Kukes, 8 5 2 P.2d at 6 5 7 (citations omitted). First, the District
Court did not accept Kristeen's findings of fact "wholesale." In
addition to independently determining the maintenance award and
denying Kristeen attorney's fees, the court also determined that
Joseph would receive his grandfather's desk and a branding iron
collection purchased by the parties, and that Kristeen would keep
a ring originally owned by Josephts grandmother.
Second, our holdings under Issues I and I1 establish that the
District Court properly considered the facts before it, correctly
applied the law to the facts, and correctly interpreted the law.
Unquestionably, the District Court exercised independent judgment
when making its findings of fact and conclusions of law.
Af firmed.
We9 concur: ,r
Justice Terry N. Trieweiler specially concurring.
I concur with the majority's decision to affirm the District
Court for the reason that I conclude that the District Court's
findings were not clearly erroneous and its distribution of marital
property was not an abuse of discretion. However, I do not
subscribe to all of the reasons set forth in the majority opinion.
Specifically, I am unimpressed by the fact that Joseph lives
with another woman to whom he pays rent, or that he occasionally
provides financial assistance to her family. I fail to see how any
of those facts are relevant to whether or not the marital estate
was equitably distributed.
I conclude that it was equitable for Kristeen to receive the
marital home, including its equity, because it was due solely to
her efforts that the equity in the home was preserved by avoiding
foreclosure. I consider this a valid consideration pursuant to
5 40-4-202(1), MCA, which allows the district court to consider a
spouse's contribution to the estate when distributing the estate.
For this reason alone, and because there is no serious
disagreement with the District Court's distribution of the pension
accumulated by Joseph during the couple's marriage, I would affirm
the District Court's distribution of the marital estate.
Based on my conclusion that the estate was properly
distributed and the additional evidence that following distribution
Xristeen's income was still less than her living expenses, I also
agree that there was sufficient evidence to support the District
Court's conclusion that Kristeen was entitled to maintenance
pursuant to § 40-4-203, MCA. I do not agree with all of the
conditions placed on the continuation of that maintenance.
However, those conditions have not been appealed.
Therefore, I would affirm the judgment of the District Court.
March 10, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Jerrold L. Nye
NEY & MEYER
3317 Third Ave. North
Billings, MT 59101
W. CORBIN HOWARD
Attorney at Law
P.O. Box 7177
Billings, MT 59103-7177
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA I