NO. 96-097
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
DANIEL J. ELLIS,
Respondent and Appellant,
v.
MILDRED A. ELLIS, ii\& 2 2 .pj$$
Petitioner and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone!
The Honorable Diane Bars, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gerald J. Neely, Billings, Montana
For Respondent:
Joanne M. Briese, Billings, Montana
i
me 3 g ,.. Submitted on Briefs: 1996
“*,.$ L$ “? c. May 3,
h-.- k f%d Decided: August 22, 1996
Filed: b,G$ 2 2 1996 1
,-, I) 8-l
Cl&k
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant, Daniel J. Ellis (Daniel), appeals from the Findings
of Fact and Conclusions of Law entered on September 21, 1995, by
the Thirteenth Judicial District Court of Yellowstone County,
awarding his former wife, Mildred A. Ellis, permanent maintenance.
We affirm.
The sole issue raised by Daniel is whether the District
Court's decision to award permanent maintenance was based on
substantial evidence.
FACTS
Daniel and Mildred were married in 1977. There are no minor
children of the marriage. At the time of trial, Mildred was 47
years old and in good health except for a chronic back problem
which precludes her from standing for long periods. For the past
8 years, Mildred has worked for Herberger's Department Store. In
1994 Mildred earned $13,761.98. Daniel has been a federal meat
inspector for the past 23 years for the United States Department of
Agriculture. He earned $39,194.21 in 1994. In addition, Daniel
traditionally receives a pay raise after the first of the year and
also receives overtime pay..
Mildred testified that her monthly living expenses total
$1,463.50. This amount includes payment on debts incurred as of
1995 totalliny $7,846.06. Mildred testified that her estimated
monthly expenses exceed her net monthly income by $581.90. Mildred
testified that she would be unable to find additional work to
supplement her current income because her employer does not allow
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its employees to work for its competitors. Outside of a retail
position, Mildred testified that it would be difficult for her to
coordinate the hours of an additional job.
In an affidavit supplied prior to trial, Daniel listed his
gross pay as $2,697.60 per month. In addition to state and federal
taxes, Daniel listed several other itemized deductions to his
paycheck. Daniel stated that his personal expenses were $2,111.42
per month.
Although Daniel was not present at the June 1995 hearing, he
offered testimony through deposition and was represented by counsel
during the proceedings. After the hearing, the District Court
dissolved the marriage and distributed the marital assets. The
court determined Mildred was eligible for maintenance and awarded
her $500.00 per month from the date of entry of the decree until
she dies or remarries.
Daniel appeals.
STANDARD OF REVIEW
This Court will not reverse the district court's award of
maintenance unless the court's findings are clearly erroneous. In
re Marriage of Davies (1994), 266 Mont. 466, 478, 880 P.Zd 1368,
1376; In re Marriage of Smith (1995), 270 Mont. 263, 269, 891 P.2d
522, 526.
When determining whether a district court's findings are
clearly erroneous, this Court has adopted a three-part test. In re
Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353,
1355.
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First, the Court will review the record to see if the
findings are supported by substantial evidence. Second,
if the findings are supported by substantial evidence, we
will determine if the trial court has misapprehended the
effect of the evidence. Third, if substantial evidence
exists and the effect of the evidence has not been
misapprehended the Court may still find that a finding is
clearly erroneous when, although the evidence is there to
support it, a review of the record leaves the court with
the definite and firm conviction that a mistake has been
committed. (citations omitted).
Eschenbacher, 831 P.2d at 1355 (citing Interstate Prod. Credit
Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287).
DISCUSSION
On appeal, Daniel argues there was not substantial evidence to
support the District Court's decision to award Mildred maintenance.
First, he contends that Mildred is not entitled to maintenance.
Second, he contends that he is financially unable to pay the amount
ordered by the District Court.
When determining whether to award maintenance, the court must
initially determine if the spouse requesting maintenance is
eligible. In making this determination, the district court must
consider the statutory provisions of § 40-4-203, MCA, which read in
part as follows:
40-4-203. Maintenance. (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
[or her] reasonable needs; and
(b) is unable to support himself [or herself1
through appropriate employment . . . .
In Daniel's first argument, he contends that Mildred will only
be short on monthly funds until such a time as she pays off her
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existing debts. After paying her debts, Mildred's monthly expenses
will be reduced to $1,x76.50. Furthermore, Daniel argues that the
court improperly considered debts incurred by Mildred following the
separation of the parties. Daniel asserts that $4,399.41 of
Mildred's current debt was payment for a wedding for her son from
a previous marriage. This leaves only $3,476.65 attributable to
Mildred's living expenses. In addition, Daniel asserts the
$3,000.00 loan from her other son should not be considered for the
purpose of determining maintenance because the loan has no specific
due date, repayment schedule, or applicable interest.
To award maintenance the court must find the eligible spouse
lacks sufficient property to support him or herself and is unable
to support him or herself through appropriate employment. Here,
Daniel is not contesting the fact that Mildred lacks sufficient
property to support herself. Daniel argues that if the court would
have properly considered the duration of Mildred's existing debts,
Mildred would be able to support herself. Thus, her situation
would not satisfy this second prong of the statute. It is Daniel's
position that the disputed personal loans add $159.00 per month to
Mildred's living expenses, "which when that amount is added to her
$153.17 per month deficient [sic] found by the Court, Respondent
Wife is able to provide for herself." Contrary to this assertion,
however, no where in the court's findings or conclusions is there
a reference to Mildred's $153.17 deficit. Here, the court, after
considering Mildred's tax obligations, found Mildred's net income
was $881.60 per month. The court then found Mildred's monthly
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living expenses to be $1,463.50. This leaves Mildred $581.90 short
every month. Even if the court had chosen not to consider amounts
Mildred is currently spending to discharge her debts, including the
$159.00 in payments disputed by Daniel, Mildred's income still
falls short of her monthly expenses.
Upon review of the record, the evidence supports a finding
that Mildred both lacks sufficient property to provide for her
needs and that she would be unable to support herself through
employment. Therefore, the District Court was not clearly
erroneous in determining that Mildred is eligible for maintenance.
Next, after determining that a spouse is eligible for
maintenance, the trial court must then engage in an analysis to
determine the amount and duration of maintenance pursuant to S 40-
4-203(2). On appeal, Daniel's second argument is that the District
Court erred in failing to consider his ability to pay the ordered
maintenance. Daniel asserts that he is already $18.12 short per
month, and therefore he would be unable to pay maintenance awarded
by the court.
Under the statute, Daniel's ability to pay is only one of the
several relevant factors that a court will consider in determining
an award of maintenance. The applicable statute reads in part as
follows:
(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,
including the extent to which a provision for support of
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a child living with the party includes a sum for that
party as custodian;
(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(2), MCA.
Here, the court addressed many of the above listed criteria in
its findings. The court considered Mildred's limited financial
resources, finding that she had no income producing property. The
court also considered Mildred's prospects for future employment.
But, the court determined that even with retraining or additional
education, Mildred would face the prospect of taking on a large
student loan debt only to enter the job market after she was 50
years old. In addition, the court noted that Mildred's standard of
living had diminished since the separation.
The court also considered Daniel's ability to afford
maintenance for Mildred. The court found that Daniel's monthly
expenses were approximately $948.00 with an additional $286.41 for
a car payment. After expenses, the court determined that Daniel
had an excess monthly income of $1,133.02. From this, the court
determined that Daniel was financially able to pay $500 per month
as permanent maintenance to Mildred.
Daniel asserts that the court was incorrect. He argues that
his net pay is closer to $2,093 per month. He further asserts that
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his monthly expenses are far mc~re than the court's estimate,
averaging $2,111.42 per month.
The disparity between Daniel's numbers and the court's numbers
is explained in part by way of other court findings. In Daniel's
estimation of his monthly expenses, he includes substantial
payments he is making on various credit cards. But, as the
District Court found and as Daniel does not dispute, he charges all
of his travel expenses as a.meat inspector on his credit cards and
is subsequently reimbursed by his employer. On appeal, Daniel
extends this argument and asserts that the court is implicitly
finding that his travel reimbursements exceed his credit payments,
and that the court is imputing to him non-existent income in its
determination. This assertion misses the point. Debts incurred in
the course and scope of Daniel's employment which are then
subsequently assumed by his employer cannot be attributed to him as
monthly expenses. Therefore, we conclude that Daniel's assertion
that the District Court in some way ignored his ability to meet his
own needs and pay maintenance is not supported by the record.
Daniel's ability to pay is only one factor to be taken into
consideration. As we have stated before, the ability of the spouse
to pay is not a deciding factor in determining the propriety of a
maintenance award, "[wlhile it is an element, it is not always the
determining factor." In re Marriage of Tahija (1992), 253 Mont.
505, 510, 833 P.2d 1095, 1098. Instead, this Court has held that
findings must demonstrate that the court considered the proper
factors and that the maintenance award was based on substantial
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credible evidence. In re Marriage of Corey (1994), 266 Mont. 304,
309, 880 P.2d 824, 827.
We conclude that the District Court considered the proper
factors and its maintenance award was based on substantial credible
evidence; the District Court's findings were not clearly erroneous.
Therefore, we affirm the court's calculations and award of
maintenance.
Affirmed.
Justlce
We Copcur: /
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