No. 14245
IN THE SUPREME C m O THE: S A E O MOfii'TANA
F T T F
1978
I N THE MARRIAGE OF
C . R. CWWELL,
Petitioner and Appellant,
Respondent and Respondent.
Appeal f r m : D i s t r i c t Court of t h e Fourth Judicial D i s t r i c t ,
Honorable m b e r t Holter, Judge presiding.
Counsel of Record:
For Appellant:
Garlington, Lohn and mbinson, Missoula, Mntana
Larrey E. Riley argued, Missoula, IWntana
For Respondent:
Mulroney, Delaney, Dalby and Mudd, Missoula, mntana
Dexter L. Delaney argued, Missoula, Montana
Sutmitted: Novmber 16, 1978
Decided: J N 1 :979
A
Filed: j 1- f, L -
m - - -
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This appeal is brought by petitioner-appellant, Carley
R. Cromwell, from a final property settlement and maintenance
judgment and decree of the Fourth Judicial District Court,
County of Missoula, following the dissolution of the parties'
marriage. The District Court, the Honorable Robert M.
Holter presiding without a jury, awarded the petitioner the
former family home free and clear of mortgage indebtedness,
the home furnishings, a $3,000 lump sum with which to pay
her outstanding debts, and $2,000 as attorney fees. The
decree further includes a maintenance award of $250 per
month during the twelve months following February 1, 1978,
$125 per month during the succeeding eighteen months, and
none thereafter. The decree provides that the petitioner's
eligibility for maintenance terminates with her death or
remarriage.
On appeal petitioner requests a modification of the
decree to provide for:
1. A permanent award of $500 maintenance per month; and
2. Security for future maintenance payments in the form
of a claim against respondent's Teachers' Retirement or
Social Security Funds.
Petitioner requests this Court to modify the decree
without remand in view of the fact that the matters at issue
have been thoroughly litigated in two trials. After a first
trial and decree dated November 30, 1976, in which petitioner's
claim for maintenance was entirely denied, petitioner appealed
to this Court. In remanding the matter, this Court held
that the District Court had abused its discretion in refusing
to consider petitioner's needs for "some financial assistance
during the transition from housewife to a single person."
Cromwell v. Cromwell (1977), Mont . , 570 P.2d 1129,
1131, 34 St.Rep. 1193, 1196. On remand, the District Court
heard full testimony on the parties' earning capacities and
monthly expenses, and on respondent's ability to pay main-
tenance before it modified both the property settlement and
maintenance provisions.
The issue on appeal is whether the District Court
abused its discretion in awarding petitioner only $250 per
month maintenance for twelve months, $125 per month for the
succeeding eighteen months, and no maintenance thereafter.
The parties in this case were married in 1947. Peti-
tioner, Carley Cromwell, was then age 25 and had been em-
ployed as a nurse prior to her marriage. In September,
1947, respondent Gardner Cromwell began his legal education
at the University of Montana School of Law. During the next
three years, while respondent attended school, petitioner
worked as a housewife and cared for the parties' oldest son,
who was born in May, 1948. Respondent worked for the Bonne-
ville Power Administration following his graduation in 1950.
Two more children were born before the end of 1953. In
September, 1954, respondent entered the University of Michi-
gan Law School and worked toward an LL.M. degree which he
obtained in June, 1955. During that time petitioner cared
for the parties' three children and worked two nights a week
at the University of Michigan Hospital. Respondent taught
at the New York University during the next two academic
years, while petitioner cared for the children. A fourth
child was born in June, 1957. In 1957 the family returned
to Montana where respondent accepted a teaching position at
the University of Montana School of Law. Respondent has
taught each year since 1957 and obtained the degree of
S.J.D. from the University of Michigan by submission of a
thesis.
During this time, 1957 through 1975, petitioner put
most of her working time into caring for her family. She
did work part-time during quarterly registration at the
University of Montana from 1957 to 1965. She spent only one
year since 1957, however, working part-time as a night nurse
at the N.P. hospital in Missoula.
The parties separated in 1975, some twenty-eight years
after their marriage. In May of 1975 petitioner began work
as a hostess in a Missoula restaurant. That employment
lasted about eighteen months, until October, 1976, when her
job was terminated due to remodeling. Her highest wage
during that period was $2.475 per hour.
Between October and December, 1976, petitioner was
unable to find work despite repeated applications. During
that time she obtained unemployment compensation of $68 per
week. In December she secured employment with the Missoula
County Food Stamp program and continued working there until
a nursing position opened at a Missoula nursing home in
April, 1977. As of this date, she continues to work at the
nursing home as a relief nurse at irregular hours averaging
about $500 per month of net income. There are no fringe
benefits and no retirement plan available to her at the
nursing home.
Petitioner also sought employment at St. Patrick's
Hospital in Missoula, but upon learning her age and the
number of years since she had actively worked as a nurse,
the hospital refused to accept her application. The per-
sonnel director of the hospital testified that there cur-
rently are no openings for registered nurses at St. Patrick's;
that there are presently about eighty full-time nurses and
forty part-time nurses employed there; and that there are
approximately 100 applications for registered nurse posi-
tions on file. In the director's opinion, the same situation
exists in the other two Missoula hospitals.
The District Court found that petitioner's reasonable
monthly living expense is $789.50. That figure includes her
present rental costs, but the court noted that when peti-
tioner moves back into the family home, she will continue to
have costs such as taxes and insurance which will replace
the rental expense.
Paragraph 5 of the District Court's findings appears to
state the rationale for its decree of $250 per month, then
$125 per month, then zero maintenance. The second sentence
of that finding concludes that "[ilt is likely that [peti-
tioner] will, through diligent application and some assis-
tance, continue to progress in her employment; there is
little likelihood, however, that she will be able to sub-
stantially gain retirement benefits or accrue savings."
The District Court's findings show that respondent is
a tenured professor of law at the University of Montana
School of Law. His gross salary for the 1976-77 academic
year was $22,862 and for the 1977-78 year was $25,862. His
net income during this latter year was approximately $1,778.53
per month for each of the ten months during which he taught.
The Court further found that respondent's living expenses
are "about equal in amount to those of petitioner."
Respondent was remarried on December 18, 1976, to a
woman with a five year old daughter. Respondent and his
present wife agreed before their marriage that all of the
interest in her property would remain in her name. Respon-
dent has lived in his present wife's home outside Missoula
since his remarriage. His present wife, as manager of a
Missoula business, has an average monthly income of $922.27
and additionally receives $75 per month in child support
from her previous husband. Thus, as the District Court
noted in paragraph 6 of its findings the "'family' net take-
home of Respondent's new family [is] approximately $2,500"
per month.
In addition respondent had, as of the date of trial,
accumulated some twenty-six years toward retirement under
the Montana Teachers' Retirement System. The District
Court, in paragraph 4D of its findings, indicates that there
have been contributions made into respcndent's account "from
income during the marriage" of approximately $19,000. That
amount would be available to respondent now only if he quit
his job and cashed in his account. However, if he were to
continue in his position as a law professor and retire at
age 60, respondent's interest in the retirement system would
greatly increase. In a footnote to paragraph 4D, the Dis-
trict Court calculated the "present" value to the petitioner
when he reached age 60 to be $224,239.32. This figure is
based upon life expectancy, interest rate, final average
salary and creditable years of service assumptions, and
would be available to respondent only on a monthly pay
basis. Respondent testified that he did not intend to
retire until age 65. Thus, while life expectancy at that
age would be sonewhat decreased, the average annual compen-
sation may be somewhat higher and the number of years of
creditable service increased by five. In any case, as the
District Court concluded, the actual value of his retirement
to respondent cannot be calculated with exact certainty, but
it does clearly represent "a considerable asset and security"
to him.
Finally, the District Court found that respondent is
"free to pursue other remunerative employment during the
summer months."
Section 48-322, R.C.M. 1947, of the Montana Uniform
Marriage and Divorce Act establishes two criteria upon which
to determine a spouse's eligibility for maintenance following
dissolution of marriage. These are that the spouse seeking
maintenance (1) lacks sufficient property to provide for his
or her reasonable needs, and (2) is unable to support him-
self or herself through appropriate employment. The Dis-
trict Court concluded that petitioner met both of these
criteria, at least for two years following its decree.
Petitioner's contention, that she will continue to be in
this category indefinitely, must be weighed in terms of the
next six criteria listed in subsection (2) of section 48-
322. Those criteria require the District Court to consider
the petitioner's financial resources, including the property
apportioned to her in the decree, and her ability to meet
her needs independently; the time necessary for her to make
a transition to a single person, including any additional
education or retraining; the standard of living established
during the marriage; the duration of the marriage; her age
and physical and emotional condition; and the respondent's
ability to meet his own needs while providing additional
support to her.
Petitioner has received in the decree full interest in
the family home, worth about $48,000, and $3,000 cash with
which to pay most of her outstanding debts. But her rea-
sonable monthly needs, according to the District Court's
findings, are $789.50, while her take-home pay is only $500
per month. At age fifty-six and having been separated from
nursing for some twenty years, her opportunities for full-
time nursing work appear bleak. Additionally, she has no
retirement plan in her present position.
On the other hand, respondent has retained his teaching
position, his salary and his retirement benefits. He has
remarried and his present wife and he have together nearly
$2,500 per month in take-home pay.
Considering the criteria listed in section 48-322(2),
it is clear that at present petitioner is unable to meet her
present monthly needs through appropriate employment. The
District Court decree, however, assumes that within a year
she will be nearer to self-sufficiency, and that after two
and one-half years, she will be able to support herself
entirely. No evidence in the record supports this finding.
Under the criteria of the standard of living estab-
lished during the marriage and duration of the marriage, the
court is silent as to petitioner's expectation of a secure
retirement prior to the dissolution. The District Court
made elaborate findings concerning the "considerable" value
to respondent of his interest in the Montana Teachers'
Retirement System. Yet the decree makes no mention of the
petitioner's needs at retirement age. Cf. Wilson v. Wilson
(Or. 19721, 499 P.2d 828, 828-29.
Finally, the District Court notes that this case is
typical in that "there really is not enough to satisfy all
of the demands and requests of the Petitioner and Respon-
dent" and that a decree requiring all petitioner asks for
could be "disastrous to the party from whom payment is
required." Yet the court ignores the competent evidence of
respondent's ability to pay. The court did make a finding
that the reasonable monthly needs of respondent are roughly
equivalent to petitioner's needs, that is, about $789.50.
It also found that respondent's monthly take-home pay on a
twelve month basis is $1,482.11. Thus, there appears no
reason from the District Court's findings why respondent
cannot continue to assist his former wife, to help her meet
not only her present needs, but also to help prepare her for
retirement.
Petitioner appears to justify her request for $500 per
month on the decision in Eschenberg v. Eschenberg (1976),
Mont . , 557 P.2d 1014, 33 St.Rep. 1198. In that
case, an award of $500 per month alimony was approved, but
the husband was somewhat better off financially than respon-
dent here, and the wife somewhat less capable of earning
income than petitioner here. 557 P.2d at 1015-16, 33 St.Rep.
at 1200, 1201-02.
Appellate courts in other states have seen fit to
increase awards of maintenance where the result at the trial
court level appeared unjust or inequitable. See In re
Marriage of Fisher (Iowa 19761, 237 N.W.2d 452, 454; Wheeler
v. Wheeler (19751, 193 Neb. 615, 228 N.W.2d 594, 596.
In light of the trial court's finding of petitioner's
needs for support in addition to her own earnings, the
standard of living during her marriage, which included an
anticipated secure retirement and respondent's ability to
provide continuing support to his former wife, this Court
orders the decree modified so as to provide continued main-
tenance to petitioner. An equitable amount would be one
which would assist her to meet her reasonable monthly ex-
penses in excess of the $500 take-home pay she receives as a
nurse. Thus, the amount should be at least $300 per month,
until her death or remarriage. In addition petitioner is
also entitled to enjoy something of the secure retirement
which she helped respondent to achieve. Therefore and for
that purpose, an additional $100 per month until her death
or remarriage which she could save toward retirement does
not appear unfair to either her or respondent. The decree
is ordered modified in accordance with these .suggested
amounts.
Paragraph Nos. 1, 2, 3, 4 (a), and (5) of the decree of
the District Court are affirmed. Paragraph 4 ( b ) and 4 ( c )
are vacated and shall be amended as ordered herein. Paragraph
No. 6 is vacated on order of this Court and shall read
instead: "That upon completion of the various transfers and
all payments set forth herein the jurisdiction of the pre-
siding Judge shall cease, however; continuing jurisdiction
shall remain in the District Court of the Fourth Judicial
District, County of Missoula."
The cause is remanded to the District Court to enter
judgment according to this opinion.
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Justice
We Concur:
7 Chief Justice d d .
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