NO. 95-483
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
IN RE THE MARRIAGE OF:
OSCAR ROY COX, SR.,
Petitioner and Appellant,
and
EMMA LAVERNE COX,
Respondent and Respondent
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Wheatland,
The Honorable Roy C. Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Debra Cox, Missoula, Montana
For Respondent:
Marcia Birkenbuel, Great Falls, Montana
Submitted on Briefs: February 15, 1996
Decided: July 12, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
Oscar Roy Cox, Sr. (Oscar), appeals an order of the District
Court for the Fourteenth Judicial District, Wheatland County,
awarding Emma Laverne Cox (Emma) spousal maintenance and attorney's
fees and costs. We affirm.
Oscar raises six issues on appeal, however, we have
consolidated them into four issues and restate them as follows:
1. Did the District Court abuse its discretion in the
division of marital property?
2. Are the District Court's findings of fact regarding the
award of maintenance to Emma clearly erroneous?
3. Did the District Court abuse its discretion in ordering
Oscar to maintain Emma as the beneficiary of his life insurance
policy?
4. Did the District Court abuse its discretion in ordering
Oscar to pay $1500 for Emma's attorney's fees and costs incurred in
the dissolution?
Factual and Procedural Background
Oscar and Emma were married on October 4, 1989, and separated
on January 23, 1995. Oscar filed a Petition for Dissolution of
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Marriage on February 10, 1995. No children were born of the
marriage.
Oscar is 70 years old and has a ninth grade education. After
working for the railroad for 37 years, Oscar was placed on full
disability retirement in January 1979, because of a back injury.
He receives railroad retirement benefits in the amount of $1453 per
month. In January 1991, -Oscar was injured in an automobile
accident which resulted in the placement of two plates in his
pelvis and a plate in his arm. Oscar is in poor health and is
unable to work.
Emma is 59 years old and has an eighth grade education. She
is not employed and has no source of income, other than the $650
per month in temporary spousal maintenance ordered by the District
Court during the pendency of this action. Prior to the marriage
and for a short time during the marriage, Emma worked as a motel
maid. However, she has not worked outside of the home since the
latter part of 1992 when her annual earnings were $1600. Emma is
not covered by health insurance. She claims to have limited use of
her right arm as a result of an accident and she has a thyroid
condition.
On October 5, 1994, less than five months before filing the
petition for dissolution, Oscar transferred ownership of his home
to his son for the sum of $1. Oscar continues to live in the home.
He claims that he pays his son $300 per month in rent, which the
son uses to pay upkeep on the home as well as taxes and insurance.
Oscar testified that he purchased the home in 1981 from his
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mothers's estate for $8200 and that the home was free of any liens
or mortgages when he transferred it to his son.
At the time of their separation, Oscar gave Emma a check for
$4000 for her interest in a jointly owned automobile. The
remaining personal property acquired during the marriage was
divided prior to the filing of the petition for dissolution.
Following the August 30, 1995 hearing, the District Court
found that, in addition to the home, Oscar had transferred in
excess of $35,000 in investments to his sons, without receiving any
compensation and that the investments and the home were resources
available to Oscar. The court granted the dissolution and ordered
Oscar to pay Emma maintenance of $650 per month for two years, pay
$1500 towards Emma's attorney's fees and make Emma the beneficiary
of the $2000 life insurance policy Oscar received upon his
retirement from the railroad. Oscar appeals the District Court's
decision.
Issue 1.
Did the District Court abuse its discretion in the division of
marital property?
The District Court found that the marital estate consisted of
various personal and household items "which have been previously
divided to the satisfaction of the parties." The court ordered
that each party retain sole ownership of those items of personal
property already in his or her possession. Oscar argues that the
District Court's order should be amended to compel the return of
some small items of personal property that he claims belong to him.
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The standard of review of a district court's division of
marital property is whether the district court's findings of fact
are clearly erroneous. If substantial credible evidence supports
the court's findings and judgment, this Court will not change the
trial court's decision unless the court abused its discretion. 1n
re Marriage of Hogstad (Mont. 19961, 914 P.Zd 584, 588, 53 St.Rep.
257, 259 (citing In re Marriage of Smith (1995), 270 Mont. 263,
267-68, 891 P.2d 522, 525).
In his petition for dissolution, Oscar indicated that l'[t]he
parties have acquired only personal property during their marriage
and they have previously divided the same to their satisfaction."
Oscar did not raise this issue again until he filed his proposed
findings of fact and conclusions of law with the District Court.
Furthermore, there was no evidence presented on this issue at the
dissolution hearing that would contradict either party's previous
statements that the property had been divided satisfactorily.
This Court will not disturb an equitable apportionment of the
marital assets when it is clear that the district court was acting
within its discretion. In re Marriage of Dewitt (1995), 273 Mont.
513, 519, 905 P.2d 1084, 1088 (citing In re Marriage of Danelson
(1992), 253 Mont. 310, 319, 833 P.2d 215, 221).
It is clear from the record in this case that the distribution
of the marital estate was not clearly erroneous. Accordingly, we
hold that the District Court did not abuse its discretion and we
affirm the court's ruling on the division of marital property.
Are the District Court's findings of fact regarding the award
of maintenance to Emma clearly erroneous?
The District Court ordered Oscar to pay Emma $650 per month
for spousal maintenance and support for a period of two years.
Oscar contends that the court erred because Emma failed to prove
that she is entitled to maintenance. He claims that Emma could
earn between $600 and $700 per month at a full-time minimum wage
job.
The standard of review for a district court's award of
maintenance is whether the district court's findings of fact are
clearly erroneous. Brandon v. Brandon (19951, 271 Mont. 149, 151-
52, 894 P.2d 951, 952-53.
At the dissolution hearing, Emma testified that her necessary
monthly living expenses are $1194 per month and that she has no
source of income, other than the $650 per month temporary spousal
maintenance previously ordered by the court. Oscar testified that
he receives $1453 per month in retirement benefits and his
necessary monthly living expenses are $1250 per month, which
includes $300 per month for housing and $150 per month for auto
expenses. Oscar also testified that he transferred more than
$35,000 in investments to his sons.
Under 5 40-4-203(l), MCA, a district 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
reasonable needs; and
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(b) is unable to support himself through appropriate
employment .
Additionally, when determining the amount and duration of
maintenance payments, the district court should consider the
following:
(a) the financial resources of the party seeking
maintenance . . and his ability to meet his needs
independently . . . ; _
lb) the time necessary to acquire sufficient
education or training to enable the party seeking
maintenance to find appropriate employment;
Cc) 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(Z), MCA.
Pursuant to 5 40-4-203, MCA, the District Court concluded that
Emma is entitled to maintenance because her personal property
consists of various household items that are insufficient to
provide for her reasonable needs. The court found that Emma has
very limited opportunities for future acquisition of income because
of her age, poor health and lack of education. Moreover, the
District Court determined that Oscar is able to meet his own needs
while paying maintenance to Emma. In making this determination,
the court found that Oscar's necessary living expenses are only
$800 per month because he has no auto expense as he sold both
vehicles to his sons and no housing expense as the home he lives
in, and ostensibly transferred to his son, is free of any liens or
mortgages. In addition, the court found that the $35,000 in
investments that Oscar transferred to his sons is a resource that
is available to Oscar as well.
After reviewing these findings, we conclude that Emma meets
the requirements of § 40-4-203, MCA, and is entitled to
maintenance. We also conclude that Oscar is able to meet his own
needs while paying maintenance to Emma. Accordingly, we hold that
the District Court's findings were not clearly erroneous and we
affirm the court's ruling concerning maintenance.
Issue 3.
Did the District Court abuse its discretion in ordering Oscar
to maintain Emma as the beneficiary of his life insurance policy?
In the decree of dissolution, the District Court ordered Oscar
to maintain Emma as the beneficiary of Oscar's life insurance
policy for the rest of his life. Oscar argues that this order was
inappropriate because the policy was his property prior to the
marriage.
Section 40-4-202, MCA, gives a district court the authority to
equitably apportion between the parties the property and
assets belonging to either or both, however and whenever
acquired and whether the title thereto is in the name of
the husband or wife or both. [Emphasis added.]
Because a district court has the authority to equitably
apportion property and assets however and whenever acquired, we
conclude that the District Court was acting within the discretion
afforded by s 40-4-202, MCA,' when it ordered Oscar to make Emma the
beneficiary on his life insurance policy. Therefore, we affirm the
court's ruling on this issue.
Issue 4.
Did the District Court abuse its discretion in ordering Oscar
to pay $1500 for Emma's attorney's fees and costs incurred in the
dissolution?
The standard of review of an order denying or granting
attorney's fees and costs is whether the district court abused its
discretion. This Court will not disturb a district court's
findings if they are supported by substantial evidence. In re
Marriage of Gingerich (1994), 269 Mont. 161, 167-68, 887 P.2d 714,
718 (citing In re Marriage of Barnard (1994), 264 Mont. 103, 109,
870 P.2.d 91, 95).
The District Court ordered that Oscar pay $1500 to Emma's
attorney to cover a portion of the attorney's fees and costs that
Emma incurred in these proceedings. Oscar contends that in making
this determination, the court did not consider the financial
resources of the parties as required by 5 40-4-110, MCA.
Section 40-4-110, MCA, provides:
costs - attorney's fees. The court from time to time,
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 chapters 1 and 4 of this title and
for attorney's fees, including sums for legal services
rendered and costs incurred prior to the commencement of
the proceeding or after entry of judgment. The court may
order that the amount be paid directly to the attorney,
who may enforce the order in his name.
Here the District Court found that Emma is without any source
of income other than the $650 in maintenance awarded by the court
and that her necessary monthly living expenses are $1194 per month.
The court also found that Oscar receives $1453 per month in
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benefits while his necessar; monthly living expenses are only $800
per month. In addition, the court found that the home and the
$35,000 Oscar transferred to his sons are resources also available
to Oscar. Thus the court concluded that Oscar has sufficient
resources available to pay the $1500 in attorney's fees and costs
that Emma incurred.
Accordingly, we hold that the District Court did not abuse its
discretion in this case as there is substantial evidence supporting
the District Court's award of attorney's fees to Emma.
Affirmed.
We Concur:
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