No. 02-463
IN THE SUPREME COURT OF THE STATE OF MONTANA
2003 MT 63
In Re the Marriage of:
HAROLD M. SMITH,
Petitioner and Respondent,
and
SUSAN A. SMITH,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. CDR-2001-96,
The Honorable Thomas C. Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David N. Hull, Attorney at Law, Helena, Montana
For Respondent:
Robert M. Cummins, Attorney at Law, Helena, Montana
Submitted on Briefs: December 5, 2002
Decided: March 31, 2003
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.
¶1 Harold Smith, the Petitioner, filed a petition for dissolution of his marriage to Susan
Smith in the District Court for the First Judicial District in Lewis and Clark County. The
District Court entered its Findings of Fact, Conclusions of Law and Decree of Dissolution
which dissolved the marriage and distributed the marital estate. The Respondent, Susan
Smith, appeals the District Court's distribution of the marital estate and denial of her claim
for maintenance. We affirm the judgment of the District Court.
¶2 The issue on appeal is whether the District Court abused its
discretion when it distributed the marital estate and denied
Susan's claim for maintenance.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 Harold and Susan Smith married on September 9, 1966, in
Yellowstone County, Montana. Harold, who was born on April 1,
1948, is currently an aviator with the rank of Chief Warrant
Officer 4 in the Montana Army National Guard. Susan, who was born
on October 25, 1946, is currently a Purchasing Supervisor for the
State of Montana Department of Environmental Quality, and has
worked for the State of Montana for approximately 24 years. Harold
and Susan have lived separately since June 2, 2000. On March 22,
2001, Harold petitioned for dissolution of their marriage.
¶4 At trial, Harold testified that after 20 years of active
service for the National Guard, he is required by law to retire as
a pilot effective April 1, 2003, and that he has several medical
conditions which make a future career in aviation unlikely. These
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conditions include high blood pressure, high cholesterol, high
blood sugar, and Type II Diabetes.
¶5 Susan testified that she had worked for the State of Montana
for 24 years and that she anticipates that she will remain at her
position for an additional five to seven years.
¶6 Harold's annual salary at the time of trial was $76,944, but
was to be reduced to $75,288 subsequent to the final divorce
decree, and to $27,545 following his retirement on April 1, 2003.
Evidence at trial established that Susan's annual salary was
$30,629.
¶7 In its Findings of Fact and Conclusions of Law, the District
Court adopted Susan's suggested distribution of the personal and
real property, other than retirement income, and distributed it as
follows:
Harold Susan
Checking Account–CU $ 1,200 $
250
Checking Account–H&S Ent. $ 318
Checking Account–AFSB $ 399
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$
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Savings Account $ 13,677 $
675
Deferred Compensation–Harold $ 5,051
Deferred Compensation–Susan $ 41,416
Insurance Fund–Cash Value $
5,207
2000 Tax Return $
6,200
Real Property–5.0 acres $
35,000
Oppenheimer Fund
$
1,029
House Sale Proceeds $ 79,000 $
79,000
Franklin Fund - Utility $
6,749
Franklin Fund - Government $
12,390
D.A. Davidson Money Market $
5,074
D.A. Davidson Securities
$
3,517
Trailer home $ 1,750 $
1,750
Other Personal Property $ 34,987 $
34,987
Total $ 137,263 $ 233,244
Accordingly, not counting retirement income, Harold received 37% of
the marital property and Susan received 63% of the marital
property. The District Court's distribution of the above property
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is not challenged; however, Susan does dispute the District Court's
final distribution of the parties' retirement plans.
¶8 The District Court concluded that Harold was entitled to the
entire amount of his military retirement, which will pay him
$2,295.45 per month ($27,545 annually) beginning April 1, 2003,
until his death. In its findings, the District Court noted that
the only valuation expert at the trial, Philip Bird, calculated the
present value of Harold's retirement to be $315,173 as of August 2,
2001. The District Court also distributed to Harold his pension
plan with Northwest Airlines which would, according to Bird, pay
$118.89 per month for life at age 65. Bird calculated the present
value of this pension plan to be $6,791. Finally, the District
Court distributed to Susan her entire retirement plan from the
Montana Public Employee Retirement System. The evidence was that
if Susan retired at age 55, she would receive monthly payments of
$747 per month, while if she retired at age 60, she would receive
$1,543 per month. According to Bird, using the $747 per month
payment for calculation of her retirement plan's present value, the
present value of her retirement account was $126,686 as of October
18, 2001. The District Court acknowledged all of Bird's valuations
with respect to the retirement accounts in its Findings of Fact.
¶9 The District Court's final distribution of the marital estate,
including retirement income, based on present value, is set forth
below:
Harold Susan
Military Retirement $ 315,173
Northwest Airlines Retirement $ 6,791
State of Montana Retirement $ 126,686
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All other assets $ 137,263 $ 233,244
Total Marital Assets $ 459,227 $ 359,930
% Share of Present Value
of the Marital Estate 56.06%
43.94%
STANDARD OF REVIEW
¶10 We review a district court's division of marital assets to
first determine whether the district court's findings are clearly
erroneous. In re Marriage of Stufft (1996), 276 Mont. 454, 459,
916 P.2d 767, 770. If the district court's findings of fact are
not clearly erroneous, we will not disturb the district court's
distribution of marital property unless the district court abused
its discretion. In re Marriage of Smith (1995), 270 Mont. 263,
267-68, 891 P.2d 522, 525. The standard for determining whether a
district court abused its discretion is "whether the trial court
acted arbitrarily without employment of conscientious judgment or
exceeded the bounds of reason resulting in substantial injustice."
In re Marriage of Rolfe (1985), 216 Mont. 39, 45, 699 P.2d 79, 83
(citation omitted).
DISCUSSION
¶11 Did the District Court abuse its discretion when it
distributed the marital estate and denied Susan's claim for
maintenance?
¶12 There is no contention by either party that the District
Court's Findings of Fact were clearly erroneous. Susan contends
that the District Court abused its discretion when it distributed
the marital estate because the District Court distributed 56% of
the marital estate to Harold, despite the length of their marriage
and the fact that Harold earned substantially more income as a
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pilot and would earn more in retirement. She further contends that
the District Court abused its discretion by trying to forecast the
parties' future employment and financial situations, and that the
Court should have instead split the marital estate according to its
present value. Lastly, Susan contends that in light of the
District Court's distribution of the marital estate, the District
Court abused its discretion by denying her claim for maintenance.
¶13 Section 40-4-202, MCA, vests the District Court with "broad
discretion to distribute the marital estate in a manner which is
equitable to each party according to the circumstances of the
case." Smith, 270 Mont. at 268, 891 P.2d at 525. It does not
require that the distribution be equal. In re Marriage of Walls
(1996), 278 Mont. 413, 416, 925 P.2d 483, 485. Section 40-4-
202(1), MCA, further provides:
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 . . . .
¶14 The District Court recognized that Harold faced mandatory
retirement by April 1, 2003. In addition, Harold had several
health problems, some of which could preclude any future career as
a pilot. Little testimony or evidence was provided regarding his
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future employability other than his testimony that he would likely
seek future employment outside the field of aviation. On the other
hand, the District Court found that Susan could continue her
employment with the State of Montana at $30,629 per year for
approximately 5 to 7 years, and that through continued employment
she could receive $1,543 per month at the age of 60 (October 25,
2006). Susan testified that she did intend to remain employed for
5 to 7 years and that she had no current health problems.
Therefore, Susan's income in the immediate future will, in all
likelihood, exceed Harold's income. While Harold will be required
effective April 1, 2003, to draw upon his portion of the marital
estate as his primary income source, Susan will continue to have
income from her salary with the State of Montana, continue to
contribute to her deferred compensation plan and add to the value
of her retirement plan. Furthermore, the District Court
distributed a substantial majority of the remaining investment
accounts and real property to Susan. Based on these facts, we
conclude that the District Court did not abuse its discretion when
it distributed the marital estate pursuant to § 40-4-202(1), MCA.
¶15 We reach a similar conclusion with respect to the District
Court's refusal to award maintenance to Susan. Section 40-4-
203(1), MCA, provides:
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
reasonable needs; and
(b) is unable to support himself through appropriate
employment . . . .
The record reflects Susan had sufficient property to provide for
her reasonable needs and was able to support herself through
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employment with the State of Montana. While Harold, when employed
by the National Guard, earned more income than Susan, that fact
alone does not require a maintenance award. Therefore, we conclude
the District Court did not abuse its discretion when it denied
maintenance payments pursuant to § 40-4-203(1), MCA.
¶16 For the foregoing reasons, we affirm the judgment of the
District Court.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
/S/ JIM RICE
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