No. 91-477
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
BONITA TAHIJA,
Petitioner and Respondent,
and
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Deirdre Caughlan, Dunlap & Cauqhlan, Butte, Montana
For Respondent:
Mark A. Vucurovich, Henninqsen, Vucurovich &
Richardson, Butte, Montana
Submitted on Briefs: March 5, 1992
Filed:
C
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
On January 15, 1991, Bonita Tahija petitioned the Second
Judicial District Court in Silver Bow County to dissolve her
marriage to respondent Daniel Tahija. On August 15, 1991, the
District Court dissolved her marriage, distributed the marital
estate, and assigned all marital debts to Daniel, including all
attorney fees. The District Court provided for the custody and
support of the children, and awarded Bonita maintenance of $350 per
month, plus payment of tuition and expenses for the next five years
or until she completed her degree program and obtained full-time
employment. On September 5, 1991, pursuant to Dan's Motion for
Reconsideration, the District Court entered Amended Findings of
Fact, Conclusions of Law and a Final Decree. The Amended Findings
increased the temporary maintenance to a specific award of $600,
deleted the provision for payment of "fees and educational
expenses,'' and deleted reference to maintenance for up to five
years. From that judgment, Dan appeals. We affirm in part and
reverse in part.
The issues are:
1. Did the District Court err when it adopted Bonita's plan
of joint custody?
2. Did the District Court err when it awarded Bonita $600
per month for maintenance?
3. Did the District Court err when it divided the marital
property and debt?
4. Did the District Court err when it granted Bonita's
request for attorney fees?
Daniel and Bonita Tahija were married on July 19, 1980. Their
marriage was dissolved on August 15, 1991. Both are 37 years old.
They have two children, whose ages at the time of the dissolution
were six and eight. Bonita has a high school education, but was
unemployed outside the home during most of the marriage. She is
currently unemployed and living in subsidized housing with the two
children. Dan earns $41,460 a year as an accountant at Montana
Power. Dan and Bonita received $4000 each from the sale of their
home.
In its amended findings of fact and conclusions of law, the
District Court adopted a joint custody plan, awarded $607 per month
to Bonita for child support, and required Dan to maintain health
insurance coverage for the children. It assigned the marital debt
of $7308 to Dan, divided the marital property equally, and awarded
temporary maintenance in the amount of $600 per month to Bonita.
I.
Did the District Court err when it adopted Bonita's plan of
joint custody?
"On appeal, this Court will not disturb a visitation schedule
ordered by the District Court when it is supported by substantial
credible evidence." 111 re Mamoge o B.H.J. (1988), 233 Mont. 461, 463,
f
760 P.2d 753, 754. Dan contends that no evidence supports the
District Court's Finding of Fact No. 15 which states:
The following plan for the promotion of the joint
custody agreement and visitation schedule, has been
adopted, and accepted by the parties, as being in the
best interests of the minor children. [Emphasis added.]
The trial transcript confirms that both parties believed at
the hearing that a joint custody plan could be agreed upon.
However, the parties proposed findings of fact, and the record,
indicate that a plan was not agreed upon. The District Court
adopted Bonita's proposed plan which varies from Dan's proposed
plan by providing less visitation than Dan requested. While the
District Court erred in finding that the visitation plan was
adopted and accepted by both parties, its adoption of Bonita's
proposed plan was within its discretion.
Dan cites no authority for his contention that the court must
state reasons for adopting one proposed plan over another.
Rule 52(a), M.R.Civ.P., provides that:
The court may require any party to submit proposed
findings of fact and conclusions of law for the court's
consideration and the court may adopt any such proposed
findings or conclusions so long as they are supported by
the evidence and law of the case.
Dan contends that the findings were entered without regard to
"many of the basic issues raised by him, without reading his
proposed Findings or in direct contravention of the evidence.I1 The
standard of review for the adoption of a party's proposed findings
is the same as findings prepared by the court. In re Marriage ofJacobson
(1987), 228 Mont. 458, 743 P.2d 1025. "Error occurs only when the
proposed findings are relied upon to the exclusion of proper
consideration of the facts and the failure to exercise independent
judgment." Jacobson, 743 P.2d at 1029.
Dan did not object to the custody plan in his motion for
reconsideration. In fact, Dan stated in his brief supporting the
motion for reconsideration that he had no objection to the
arrangement for custody which had been in effect since the parties
separated on an informal basis. Failure to object may have led the
~istrictCourt to believe that Dan found the court's previous plan
acceptable.
At the hearing, Dan recognized that Bonita's plan varied from
his proposed plan, but acknowledged that he has had no trouble with
access to the children, and that a mutual agreement on visitation
could occur without the court imposing its schedule. In addition,
at the hearing the parties acknowledged that the visitation plan
was a formula plan and was not set in stone. The court also noted
that if the parties could not work out a plan it would set a plan.
The plan itself recognizes that the schedule is flexible.
We conclude that the lower court did address the issues raised
by Dan in his motion for reconsideration. The District Court's
findings are supported by substantial evidence, and are not clearly
erroneous.
Dan also contends that adoption of the plan has reduced his
access to his children by several weeks per year and is contrary to
the best interests of the children. While it is true that the
adopted plan did not grant the additional weeks of visitation that
Dan requested, the plan is still reasonable and within the District
Court's discretion.
This Court has held that a visitation schedule providing
visitation on alternate weekends, alternate holidays, one evening
per week, and two weeks in the summer is reasonable. In re Marriage of
Alt (l985), 218 Mont. 327, 708 P.2d 258. Here, the District Court's
visitation schedule is more generous than the one approved in that
case, and Dan has failed to show that the adopted visitation
schedule is unreasonable. The joint custody plan is affirmed.
11.
Did the District Court err when it awarded Bonita $600 per
month for maintenance?
Maintenance is within the broad discretion of the District
Court and may not be set aside unless the court's clear err
constitutes an abuse of discretion. See In re Mamage of Schenk (1984),
213 Mont. 310, 692 P.2d 6.
Under 5 40-4-203(1), MCA, a court may award maintenance 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 .... II
Section 40-4-203(2), MCA, provides that determining an award's
amount and length entails 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;
(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.
The District Court concluded that $600 per month maintenance
is "appropriate given that [Bonita] lacks sufficient property to
provide for her reasonable needs and is currently unable to support
herself through appropriate employment while caring for her minor
children." Apart from the proceeds from the sale of the home, all
the property Bonita received was non-income producing. See Mam'age
This Court has held that "appropriate employment1' must be
determined with relation to the standard of living achieved by the
parties during the marriage. 111re Marriage o Madson (1978), 180 Mont.
f
220, 224-25, 590 P.2d 110, 112. The District Court found that the
parties enjoyed a high standard of living. Additionally, the
District Court found that Dan "has a substantially higher
expectation of acquiring future income from present employment when
compared to [Bonitaf
s] present opportunity to acquire future
income. Regardless of whether they enjoyed a high or
13comfortable1fa n d a r d of l i v i n g , as Dan contends, it is apparent
st
that Bonita is in need of temporary maintenance so that she may
acquire an education which will enable her to find appropriate
employment.
Dan asserts that the District Court ignored § 40-4-203(2)(f),
MCA, requiring consideration of the obligor spouse's ability to
meet his own needs and pay maintenance. we stated in In re Cole
(1988), 234 Mont. 352, 358, 763 P.2d 39, 43, that the husband's
ability to pay is not a deciding factor in determining the
propriety of a maintenance award. While it is an element, it is
not always the determining factor.
However, the District Court properly considered Dan's ability
to pay. Dan's take home pay, minus monthly expenses, maintenance,
and child support leaves him with a small monthly surplus. This
does not include a calculation of how maintenance payments will
benefit Dan for income tax purposes. Thus, the District Court did
not "fail utterly to consider Dan's ability to pay."
A review of the record confirms that the District Court's
order of $600 maintenance per month is supported by substantial
credible evidence and by proper consideration of the statutory
factors.
~dditionally,Dan maintains that there is no evidence in the
record to support an award for five years when Bonita only
requested four years. While we find that evidence in the record
supports temporary maintenance for five years a s ordered in the
District Court s initial findings of fact and conclusions of law on
August 15, 1991, it appears that the District Court's amended
findings of fact and conclusions of law set no specific time period
for temporary maintenance. Therefore, we remand this case to the
District Court for the purpose of establishing a specific period
for temporary maintenance.
Did the District Court err when it divided the marital
property and debt?
The standard of review for division of marital property is
whether the District Court abused its discretion. In re Mamiage of
Skirtner (1989), 2 4 0 Mont. 299, 304, 783 P.2d 1350, 1353.
Dan was ordered to pay marital debts in the amount of $7308.
He contends that proceeds from the sale of the parties' home should
have been applied to satisfy that debt.
The District Court's consideration of those statutory factors
provided for in 5 40-4-202, MCA, is illustrated in the following
portion of its memorandum explaining its amended order:
The award of maintenance and division of assets in
this matter are properly considered together, maintenance
of $ 6 0 0 . 0 0 per month and an award of an equitable
division of the property has been made. The Court is
fully aware that the assets of the marriage have been
divided equally while the debts of the marriage are to be
the sole responsibility of the Respondent. The
proportion of the division of the marital estate i n t h i s
instance recognizes the Respondent's greater earning
capacity and opportunity to acquire future income and
assets. Section 40-4-202, M.C.A., requires the Court to
consider the opportunity of the parties for future
acquisition of capital assets and income. 'Opportunity'
is a broad word that includes the capacity of the parties
to earn future income. ...
It is also the opinion of this Court that Petitioner
has made significant and substantial contributions to the
property acquired during marriage in her capacity as
housewife and mother and that the temporary award of maintenance
i in lieu o f a largerportion of the marital estate. It is also noted that
s
Petitioner's contributions as a homemaker have been a
substantial factor in facilitatingthe maintenance of the
home. [Italics added.]
After reviewing the record we hold that the District Court did not
abuse its discretion in the division of the property and debts.
IV.
Did the District Court err when it granted Bonita's request
for attorney fees?
Abuse of discretion is the standard of review for an award of
attorney fees. Jacobson, 743 P.2d at 1029. Section 40-4-110, MCA,
allows a court to award reasonable attorney fees "after considering
the financial resources of both parties." The District Court
properly considered the financial resources and burdens of both
parties when it determined that Bonita was entitled to attorney
fees. We hold that the District Court did not abuse its discretion
when it awarded attorney fees to Bonita.
Finally, Dan contends, and Bonita agrees, that his
contributions to the Montana Power Benefit Accounts which were made
prior to the parties' marriage should not have been divided as part
of the marital estate. We agree
We affirm the judgment of the District Court with the
exception of its allocation of the benefit accounts.
This case is remanded to the District Court for determination
of the proper division of the benefit accounts, determination of
the maximum duration of maintenance, and the entry of judgment
consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
We concur:
A
,
Chief Justice
June 30, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
folIowing named:
Deirdre Caughlan
Dunlap & Caughlan
27 W. Broadway
Butte, MT 59701
Mark A. Vucurovich
Henningsen, Vucurovich & Richardson
P.O. Box 399
Butte, MT 59703
ED SMITH
CLERK OF THE SUPREME COURT
STATE O,P MONTANA 1