05-664
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 178
IN RE THE MARRIAGE OF
LOU RUDOLF,
Petitioner and Appellant,
and
JERI NAGEL RUDOLF,
Respondent and Respondent.
APPEAL FROM: District Court of the Fifth Judicial District,
In and For the County of Beaverhead, Cause No. DR 03-12600
Honorable Loren Tucker, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
John S. Warren, Davis, Warren & Hritsco, Dillon, Montana
For Respondent:
Rienne H. McElyea, Berg, Lilly & Tollefsen, Bozeman, Montana
Submitted on Briefs: December 6, 2006
Decided: July 25, 2007
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Lou Rudolph (Lou) appeals from an order of the Fifth Judicial District Court,
Beaverhead County, dissolving his marriage with Jeri Rudolph (Jeri) and awarding Jeri
maintenance. We reverse and remand for further proceedings consistent with this opinion.
¶2 Lou raises the following issues on appeal:
¶3 1. Did the District Court err in the distribution of the marital estate because it did
not consider $255,000 in assets and $30,000 of debt?
¶4 2. Did the District Court err in awarding maintenance to Jeri without considering
the factors of § 40-4-203(2), MCA?
¶5 3. Did the District Court err by awarding Jeri maintenance for a term equal to the
length of the marriage?
¶6 4. Did the District Court err by awarding Jeri retroactive maintenance?
BACKGROUND
¶7 Lou and Jeri were married in 1980. Lou was employed as a diagnostic radiologist and
Jeri worked as a registered nurse until 1985, when the couple’s first child was born. They
eventually had three children, one of whom was still a minor when this proceeding was
commenced.
¶8 Because of the decision to cease working outside the home in order to care for their
children, Jeri allowed her nursing license to lapse. In 1994 the family moved to Dillon,
Montana, where Lou opened a radiology clinic.
¶9 The parties separated in January, 2000. Jeri and the children moved to Bozeman,
while Lou stayed in Dillon. Jeri testified that Lou encouraged her not to seek employment
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while they were separated. At the beginning of their separation, the couple paid for the
household expenses out of their joint checking account. Lou also continued to pay for Jeri
and the children’s car insurance and some medical and school-related expenses.
¶10 In March, 2003, Lou filed this action. Three months later Jeri moved for temporary
child support and maintenance. In an interim order issued in February, 2004, the District
Court ordered Lou to pay Jeri a total of $4,200 per month – $3,200 as child support and
$1,000 as maintenance. The court ordered these amounts be paid retroactively to July, 2003.
Lou was also required to continue paying the children’s school tuition, health insurance,
uninsured medical expenses, and Jeri’s car insurance. Later Lou opted to postpone the date
set for trial, resulting in an increase in interim maintenance of $500 per month.
¶11 A few months prior to commencement of this action, while the parties were separated,
Jeri secured a part-time retail job at a Bozeman bookstore. A year later, in September, 2003,
Jeri found a part-time nursing position with Montana State University, but she was laid off in
May, 2004, when the position was eliminated. A few months later Jeri secured another part-
time nursing position.
¶12 Trial was held March 22, 2005. On cross-examination, when questioned about his
income, Lou agreed that his taxable income for the previous four years “may” have averaged
$260,000. Lou’s accountant, however, testified that while his income for 2004 was
$245,384, after paying his various obligations, Lou had only $7,455 for his own living
expenses. The accountant further testified that in 2004, by relying on inheritance, loan
proceeds and other sources, Lou had actually spent $22,553 more than he made.
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¶13 The District Court issued its decree dissolving the marriage, distributing the marital
estate and awarding Jeri maintenance in September, 2005. The court found there were
significant differences in earning potential between Lou and Jeri, that Jeri lacked sufficient
property to provide for her reasonable needs, and that she was unable to support herself
through appropriate employment due to her limited experience and dated skills. The court
determined that $3,450 per month was a reasonable amount of maintenance for Lou to pay
for ten years, retroactively commencing on the date the parties separated, January 28, 2000,
and including arrearages in the amount of $500. Then, beginning on January 28, 2010, Lou’s
maintenance payments to Jeri would decrease to $2,500 per month for an additional seven
years. Finally, on January 28, 2017, maintenance would further decrease to $1,500 per
month for an additional two years before ending entirely on January 28, 2019.
¶14 From this order, Lou appeals.
STANDARD OF REVIEW
¶15 Our standard of review for marriage dissolution cases is set forth in In re Marriage of
Crilly, 2005 MT 311, ¶ 10, 329 Mont. 479, ¶ 10, 124 P.3d 1151, ¶ 10:
We review the district court’s findings of fact in a dissolution proceeding to
determine whether they are clearly erroneous. A finding is clearly erroneous if
it is not supported by substantial evidence, the district court misapprehended
the effect of the evidence or our review of the record convinces us that the
district court made a mistake. Bock v. Smith, 2005 MT 40, ¶ 14, 326 Mont.
123, ¶ 14, 107 P.3d 488, ¶ 14 (citations omitted). Absent clearly erroneous
findings, we will affirm a district court’s division of property and award of
maintenance unless we identify an abuse of discretion. In re Marriage of
Payer, 2005 MT 89, ¶ 9, 326 Mont. 459, ¶ 9, 110 P.3d 460, ¶ 9 (citation
omitted). A district court abuses its discretion if it acts arbitrarily without
conscientious judgment or exceeds the bounds of reason, resulting in
substantial injustice. In re Marriage of Kotecki, 2000 MT 254, ¶ 9, 301 Mont.
460, ¶ 9, 10 P.3d 828, ¶ 9.
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¶16 Our standard of review of a district court’s conclusions of law is whether the court’s
interpretation of the law is correct. Seubert v. Seubert, 2000 MT 241, ¶ 12, 301 Mont. 382, ¶
12, 13 P.3d 365, ¶ 12 (citation omitted). As a general rule, pursuant to § 40-4-202, MCA, a
district court has broad discretion to distribute the marital estate equitably. In re Marriage of
Killpack, 2004 MT 55, ¶ 8, 320 Mont. 186, ¶ 8, 87 P.3d 393, ¶ 8.
ISSUE ONE
¶17 Did the District Court err in the distribution of the marital estate because it did not
consider $255,000 in assets and $30,000 of debt?
¶18 Lou argues that the District Court erred because the distribution of the marital estate
neither valued nor distributed $240,402 of life insurance Lou had paid for as part of his
defined benefit retirement plan, a $15,000 IRA, and more than $30,000 of debt.
¶19 Jeri responds that the District Court’s failure to separately list Lou’s insurance as an
asset is harmless error, because the court distributed to her a percentage of the overall value
of the defined benefit plan. Thus, according to Jeri, because it is part of the defined benefit
plan, she should be distributed the same percentage of the insurance as she received in the
rest of the plan. Jeri also claims the failure to consider the $15,000 IRA is harmless error in
light of the overall value of the parties’ assets. Finally, Jeri argues the $30,000 in debt should
be attributed to Lou because a significant portion of it was incurred by him in paying Jeri
pursuant to the District Court’s interim order for maintenance.
¶20 We have previously held that the true net worth of the marital estate must be
accurately determined before the issues of equitable apportionment and maintenance can be
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resolved. In re Hanni, 2000 MT 59, ¶ 37, 299 Mont. 20, ¶ 37, 997 P.2d 760, ¶ 37 (citing In
re Marriage of Lundvall, 241 Mont. 172, 175, 786 P.2d 10, 12 (1990)).
¶21 Our review of the record supports Lou’s claim that three insurance policies with a
value of $240,402 were not considered by the District Court when it valued and divided the
marital estate. The court’s distribution of the defined benefit plan – of which the insurance
was a part – nowhere includes the cash value of these insurance policies. Because these
significant assets were not mentioned by the District Court in its decree, both the parties and
this Court are forced to guess whether the District Court considered them in distributing the
marital estate, and if they were considered in the maintenance award. Nor will we simply
assume, as Jeri urges, that the value of the insurance should be distributed in the same
percentages that the District Court allocated the other portions of the defined benefit plan.
¶22 Also, both parties make reference to a $15,000 IRA belonging to Jeri as well as
$30,000 of debt owed by Lou. Although Jeri and Lou disagree how this asset and this debt
should be distributed, they agree that the $15,000 IRA in Jeri’s name and the $30,000 debt
both, in fact, exist. It is undisputed that neither of these items was distributed by the District
Court. Once again, we are left to guess at how these amounts were accounted for – if they
were accounted for at all – and how they may have affected the equitable distribution of the
marital estate and maintenance.
¶23 The District Court’s findings of fact and conclusions of law do not conform to the
evidence because $255,000 in assets and $30,000 in debt are omitted. Thus, the true net
worth of the marital estate was not accurately determined. Before issues of equitable
apportionment and maintenance can be resolved, the District Court must consider the entire
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marital estate. See Hanni, ¶ 37. Therefore, we must remand this case to the District Court
for additional consideration of the equitable distribution of the marital estate and, after such
distribution, how any award of maintenance is affected.
ISSUE TWO
¶24 Did the District Court err by awarding Jeri maintenance without considering the
factors found in § 40-4-203(2), MCA?
¶25 Lou claims the District Court erred in awarding Jeri maintenance without considering
the factors in § 40-4-203(2), MCA. Specifically, Lou claims the District Court: (1) failed to
address Jeri’s ability to meet her needs independently; (2) made no finding of how much time
was necessary for Jeri to acquire additional training to find employment as a registered nurse;
(3) made no finding as to just what the parties’ standard of living was; (4) determined
maintenance as if the parties had been married 19 years when, in fact, the marriage had lasted
more than 24 years; (5) gave no indication as to whether Jeri’s physical and emotional
condition played a part in its maintenance award; and (6) evaluated Lou’s ability to pay
maintenance with only a conclusory statement that he could “afford to pay $3,450 for
maintenance,” without a specific explanation as to how this fact was determined.
¶26 Section 40-4-203(2) provides:
(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 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;
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(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.
¶27 Although a district court must consider each factor in § 40-4-203, MCA, it need not
make a specific finding relating to each, provided that this Court can determine the trial judge
actually considered each factor. In re Marriage of Payer, 2005 MT 89, ¶ 12, 326 Mont. 459,
¶ 12, 110 P.3d 460, ¶ 12 (citing In re Marriage of Grende, 2004 MT 36, ¶ 38, 320 Mont. 38,
¶ 38, 85 P.3d 788, ¶ 38). These factors must be considered by the district court as a whole in
the determination of a final maintenance award. In re Marriage of Ernst, 243 Mont. 114,
118, 793 P.2d 777, 780 (1990). Because district courts face a difficult task in awarding
maintenance, our final analysis is not whether we would reach a different conclusion after
considering the same evidence, but rather whether there is sufficient evidence to support its
conclusion. Payer, ¶ 15 (in part quoting In re Marriage of Haines, 2002 MT 182, ¶ 23, 311
Mont. 70, ¶ 23, 53 P.3d 378, ¶ 23).
¶28 As we noted in Issue One, a final award of maintenance, if any, and the amount and
duration of such an award, must ultimately await a correct computation of the net value and
an equitable distribution of the marital estate. Upon remand, the District Court shall
reconsider both the distribution of the marital estate and the need for maintenance and enter
further findings of fact and conclusions of law. Thus, we need not further address this issue.
ISSUE THREE
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¶29 Did the District Court err by awarding Jeri maintenance for a term equal to the length
of the marriage?
¶30 The court found that, “A reasonable period of time for Husband to pay maintenance is
a term equal to the length of the marriage….” According to Lou, the District Court erred in
determining maintenance because it essentially looked to the duration of the marriage as the
overriding factor in setting the amount of maintenance and the time during which it must be
paid. Lou also notes that the parties were married for more than 24 years, not the 19 years
the District Court relied upon in fixing maintenance.
¶31 Jeri argues that the District Court has broad discretion in awarding maintenance and
that this award was well within that discretion.
¶32 Section 40-4-203(2)(d), MCA, as noted above, requires a district court to consider the
“duration of the marriage” in a maintenance order. Maintenance is interrelated with and
supplements a property division. If, after an equitable division of the marital assets, one
party lacks sufficient property to fulfill his or her reasonable financial needs, maintenance
may be appropriate. In re Marriage of Cole, 234 Mont. 352, 356, 763 P.2d 39, 42 (1988).
The duration of the marriage is one of the factors to be considered in fixing the duration of
maintenance. During the course of a marriage, a spouse, by contributing to the marriage over
time, may have lost the ability to support himself or herself independently. If the marriage
ends, maintenance may be necessary to allow that spouse to acquire and develop skills to
support himself or herself in the accustomed manner and, perhaps, even to acquire an estate.
¶33 Consideration of the length of marriage in fixing maintenance, however, is not
payback for time spent in a bad marriage. The purpose of considering the length of a
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marriage is to equitably fix an amount of time necessary for a spouse to get into a position
where he or she should reasonably be able to support himself or herself. Yet, at the same
time, the length of the marriage is not the overriding factor precluding consideration of the
other factors in § 40-4-203(2), MCA. See Lundvall, 241 Mont. at 175-76, 786 P.2d at 12-13.
¶34 The District Court awarded Jeri maintenance to be paid in decreasing amounts over 19
years. For the first 10 years, Lou is to pay Jeri $3,450 per month. This amount then
decreases to $2,500 per month over the next seven years, then to $1,500 per month for two
more years, before eventually coming to an end in the year 2019. The District Court
nowhere addresses why 19 years of maintenance is economically necessary. Thus, we are
left no choice but to conclude that the court fixed this term only because, as it said, “A
reasonable period of time for Husband to pay maintenance is a term equal to the length of the
marriage….” However, tying the amount of time that maintenance must be paid solely to the
time the marriage lasted, without considering the length of time that maintenance is
economically necessary, is improper. The duration of the marriage cannot preclude
consideration of other factors listed in § 40-4-203(2) in fixing the term during which
maintenance must be paid. Lundvall, 241 Mont. at 175-76, 786 P.2d at 12-13.
¶35 We also remand to the District Court for further consideration of the term during
which maintenance is to be paid.
ISSUE FOUR
¶36 Did the District Court err by awarding Jeri retroactive maintenance?
¶37 Lou argues the District Court erred when it awarded Jeri maintenance retroactive to
more than three years before the commencement of the parties’ dissolution action.
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According to Lou, although a district court has statutory authority to order temporary
retroactive maintenance during the dissolution proceedings, there is no corresponding
authority to award permanent retroactive maintenance as the court did in the present case.
¶38 Jeri responds by arguing that the statutory requirements for maintenance under an
interim order differ from those of a final order. According to Jeri, while temporary
maintenance may commence no sooner than the filing of the motion for temporary
maintenance, no such limitation exists for maintenance ordered to be paid after the decree is
entered.
¶39 There is statutory authority for a district court to award temporary maintenance
retroactive to the time a petition for such is filed. Section 40-4-121(1), MCA. However, §
40-4-203, MCA, makes no reference to an award of maintenance commencing before a
petition is filed. Nor is there Montana precedent stating that retroactive maintenance may be
awarded in a final decree.
¶40 Title 40, chapter 4 of the Montana Code Annotated is based on the Uniform Marriage
and Divorce Act. See In re Parenting of D.A.H., 2005 MT 68, ¶ 8, 326 Mont. 296, ¶ 8, 109
P.3d 247, ¶ 8; In re Marriage of Harris, 2006 MT 63, ¶ 21, 331 Mont. 368, ¶ 21, 132 P.3d
502, ¶ 21. Missouri Revised Statute § 452.335 is also modeled after the Uniform Marriage
and Divorce Act and sets forth essentially the same requirements for an award of
maintenance as § 40-4-203, MCA. Missouri appeals courts have held that “as a matter of
law, a maintenance award entered pursuant to section 452.335 cannot be made retroactive.”
Anderson v. Anderson, 55 S.W.3d 444, 445 (Mo. App. E.D. 2001) (citation omitted); see also
In re Marriage of Lindeman, 140 S.W.3d 266, 276 (Mo. App. S.D. 2004) (citation omitted).
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This is because Missouri’s statute, “speaks prospectively, not retrospectively; therefore, a
maintenance award ordered in the judgment of dissolution cannot be made retroactive.”
Lindeman, 140 S.W.3d at 276 (quoting Colquitt v. Muhammad, 86 S.W.3d 144, 148 (Mo.
App. 2002). Thus, Missouri courts have concluded that maintenance ordered in the judgment
of dissolution cannot be made retroactive. See Lindeman, 140 S.W.3d at 276. Like
Missouri’s statute, § 40-4-203, MCA, speaks prospectively, not retrospectively. We
conclude that the Missouri courts’ analysis is well reasoned and logical.
¶41 Furthermore, this Court will not read into a statute something that is not there.
Strzelczyk v. Jett, 264 Mont. 153, 157, 870 P.2d 730, 732 (1994) (citing State ex rel.
Neuhausen v. Nachtsheim, 253 Mont. 296, 833 P.2d 201 (1992)). Our function as an
appellate court is to ascertain and carry out the Legislature’s intent by looking at the plain
meaning of the words in the statute. Strzelczyk, 264 Mont. at 157, 870 P.2d at 732-33, citing
State ex rel. Roberts v. Pub. Serv. Commn., 242 Mont. 242, 790 P.2d 489 (1990). Nothing in
§ 40-4-203, MCA, contemplates maintenance which is ordered to commence over three years
before the petition is filed. The District Court erred in ordering maintenance to commence
prior to the time the petition was filed.
CONCLUSION
¶42 We reverse the District Court and remand for further consideration consistent with this
Opinion.
/S/ JOHN WARNER
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We Concur:
/S/ KARLA M. GRAY
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE
13
In Re the Marriage of Rudolf
Court: Montana Supreme Court
Date filed: 2007-07-25
Citations: 2007 MT 178, 338 Mont. 226, 2007 Mont. LEXIS 347, 164 P.3d 907
Copy CitationsCombined Opinion