No. 89-363
I N ?'FIE SUPREME COURT OE' T'HE S T A T E O F MONTANA
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I N R E THE MARRIAGE O F
WTI~I~IAN I*UNDVALL,
P e t i t . j o n e r and R e s p o n d e n t ,
and
P A U L I N E LUNDVALL,
R e s p o n d e n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e C o u n t y of R o s e b u d ,
T h e H o n o r a b l e A l f r e d B . C o a t e , Judge p r e s i d i n g .
COIJNSEL O F RECORD:
For A p p e l l a n t :
G a r y A. Ryder, Forsyt.h, Montana
For R e s p o n d e n t :
John S. Forsythe, Forsyth, M o n t a n a
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S u b m i t t e d on B r i e f s : Nov. 2, 1989
Decided: January 2 9 , 1 9 9 0
Fi.I.ed :
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clerk'
Justice John C. Sheehy delivered the Opinion of the Court.
Pauline Lundvall appeals from a judgment of the District
Court, Sixteenth Judicial District, Rosebud County, in a marital
dissolution case, which judgment denied Pauline Lundvall
maintenance and attorney fees. Finding error in the basic facts
on which the District Court founded its judgment, we reverse and
remand to the District Court for further consideration of those
items.
In 1982, Pauline Judd, recently widowed, responded to a
personal advertisement placed by William Lundvall in a national
tabloid magazine. She moved to Colstrip, Montana, in March, 1982,
and became Mrs. William Lundvall on December 12, 1982. The parties
separated on November 11, 1987.
At the time of the dissolution, the husband was employed as
a heavy equipment operator having a monthly net income of
$1,640.00. The wife was employed part-time as a nursesg aide and
earned a monthly income of $316.68. The District Court found that
William had monthly living expenses of $711.27, plus a monthly debt
obligation of $867.42. In the case of the wife, the court found
her monthly living expenses to be $785.00. To her monthly earnings
of $316.68, the District Court also added payments which she might
receive from the sale of her home in Vermont in the amount of
$200.00 per month. The District Court also found that Pauline had
health problems which prohibited her from working full time.
The District Court distributed the marital property of the
parties as follows:
To the husband:
Wicks mobile home $7,000.00
with its indebtedness of 4,600.00
Lot in Colstrip 9,000.00
with its indebtedness of 1,700.00
1982 Buick 3,100.00
with its indebtedness of 2,100.00
IRA Colstrip Bank 2,000.00
1974 Chevrolet pickup 700.00
U.S. Bond
Valley Credit Union
Rifle
IRA Valley Credit Union
Tools and garden equip.
Total
To the wife:
1982 Conversion Van $5,000.00
without a debt 5,000.00
IRA 1,750.00 1,750.00
Rocky Juddfsmobile home 2,500.00 2,500.00
Her equity in the Vt. home 5,000.00 5,000.00
10 monthly payments of
temporary support @ $400.00 4,000.00 -4,000.00
Total $18,250.00
The item above which the District Court
considered an asset assignable to the wife was 10 monthly payments
of temporary support ordered by the court to be paid by William to
Pauline. The effect of the District Court order is to charge
Pauline the full amount of all the maintenance payments that had
been made to her under a temporary maintenance order of the
District Court issued in connection with the marital dissolution.
Obviously, the District Court erred in considering the total amount
of maintenance payments to be a marital asset.
Considering ~auline's ability to work, the District Court
found that she had health problems which prohibited her from
working full time. The court concluded, however, that "these
health problems are the result of the aging process and were not
caused by this marriage." The District Court in its conclusions
of law stated that the husband "is not financially responsible for
respondent Is health condition caused by aging in a marriage of this
duration. l1
The factors on which a district court may decide whether
maintenance should be awarded to a spouse are set forth in 5 40-
4-203, MCA. Included in those factors which the District Court
may consider are the financial resources of the party seeking
maintenance; the ability of that spouse to meet his or her needs
independently; the age and physical and emotional condition of the
spouse seeking the maintenance; the duration of the marriage; and
the ability of the spouse from whom maintenance is sought to meet
his needs while meeting those of the spouse seeking maintenance.
An award or denial of maintenance must be made in accordance with
the factors set forth in this statute. Laster v. Laster (1982),
197 Mont. 470, 643 P.2d 597; Grenfell v. Grenfell (1979), 182 Mont.
229, 596 P.2d 205.
With respect to whether the spouse that seeks maintenance will
receive sufficient property to provide for the spousels needs (5
40-4-203 (1)(a), MCA) , the term ttsufficient
propertyw means income-
producing, not income-consuming. Laster v. Laster, supra.
Moreover, the true net worth of the marital estate must be
accurately determined in accordance with the requirement of 5 40-
4-202, MCA, before the issues of equitable apportionment and
maintenance can be resolved. Marriage of Peterson (1981), 195
Mont. 157, 636 P.2d 821.
The testimony of the wife with respect to the Vermont home was
that the sales contract was in default and that the Vermont real
estate taxes had not been paid on the property. The income-
producing effect of the remaining marital property awarded to the
wife is negligible. The ffassetn temporary maintenance already
of
received by the wife is in its nature non-income producing.
The comment of the District Court that it had Ifyetto see a
successful mail order marriageffand its conclusion that the husband
was not financially responsible for the wifefs health condition
caused by aging in a marriage of five year duration show.,.
that the
District Court placed undue emphasis on these factors. In Marriage
of Forney (1986), 221 Mont. 63, 716 P.2d 635, where the parties
had separated less than a year after the marriage, we affirmed the
District Court which had recognized appropriate standards for
awarding maintenance, including the fact that the wife lacked
sufficient property to provide for her reasonable needs, and that
she was unable to support herself through appropriate employment,
as well as the fact that the husband had the financial resources
to pay maintenance and still meet his own needs.
While the duration of a marriage is a factor to be considered
in connection with the award of maintenance, 5 40-4-203, MCA, it
is not an overriding factor so as to preclude consideration by the
District Court of other equitable reasons set forth in the statute
for the award of maintenance.
Accordingly, we reverse and remand this cause to the District
Court for further consideration on the issue of maintenance. The
total amount of temporary maintenance received by the wife from the
husband is not to be considered an asset in that determination.
The fact that the wife's health condition is the result of the
aging process, if this be true, is not a precluding factor in
whether the wife's health condition prevents her from engaging in
remunerative work. On remand, the District Court is free to
consider all relative factors, including those set out in 5 40-4-
203, MCA, in determining whether Pauline is entitled to
maintenance.
With respect to attorney fees, the award or denial of such
attorney fees to the wife may depend on what is further found by
the District Court relating to maintenance. It is another item to
be reconsidered by the District Court on remand.
Reversed and remanded.
' ! Justice
We Concur: