NO. 93-561
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
ROBERT DOWD DOOLITTLE,
Petitioner and Appellant,
MAY 1 '
7
and
PRISCILLA E . DOOLITTLE ,
Respondent and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0 Lympus, Judge presiding.
.
COUNSEL OF RECORD:
For Appellant:
Gary A. Crowe, Attorney at Law,
Kalispell, Montana
For Respondent:
Randy K. Schwickert, Attorney at Law,
Whitefish, Montana
Submitted on Briefs: April 7, 1994
Decided: May 1 7 , 1 9 9 4
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Robert Dowd Doolittle appeals from those portions of the
Findings of Fact, Conclusions of Law, and Decree of Dissolution of
the Eleventh Judicial District Court, Flathead County, which relate
to the award of maintenance to Priscilla E. Doolittle. We affirm.
Robert Dowd Doolittle (Robert) filed a petition for
dissolution of his twenty-five year marriage to Priscilla E.
Doolittle (Priscilla). The District Court appointed a Special
Master pursuant to Rule 53, M.R.Civ.P. Robert and Priscilla
subsequently entered into a written property settlement agreement
which resolved most of their differences. At the time of the
hearing before the Special Master, the parties resolved an
additional issue.
The sole issue remaining for determination by the Special
Master was whether Priscilla was entitled to maintenance and, if
so, the duration and amount of that maintenance. The Special
Master determined that Priscilla lacked sufficient property to
provide for her reasonable needs and, without retraining, was
unable to support herself through employment. The Special Master
recommended that the District Court award Priscilla maintenance in
the amount of $250 per month for three years or until, with due
diligence, she completed the necessary education for a degree in
certified public accounting.
The Special Master's Report was filed and Priscilla moved the
District Court to adopt it. Robert filed an objection to the
Special Master's findings relating to Priscilla's inability to
2
support herself due to poor health, on the basis that the findings
relied solely on hearsay testimony admitted over objection. His
supporting brief expanded the bases of his objection somewhat. The
District Court determined that Robert failed to establish that the
Special Master's findings were clearly erroneous and adopted the
Special Master's findings and conclusions.
With regard to the maintenance issue, the court found that
Priscilla met the prerequisites of 6 40-4-203(1), MCA, and,
therefore, concluded that she was entitled to maintenance. The
substance of the maintenance provision states as follows:
8. [Robert] is required to provide spousal
maintenance to [~riscilla] the amount of $250.00 per
in
month for a period of three (3) years or until
[Priscilla] completes with due diligence the necessary
education for a degree in certified Public Accounting.
said sum shall be payable beginning with the month of
September, 1993, and payable on the 10th day of each
month thereafter.
Robert appeals.
Robert asserts numerous errors in the Special Master's
findings, as adopted by the District Court. Priscilla responds
that he raised only one objection to those findings when the
Special Master's report was filed and, therefore, that only one
issue is properly before us.
Rule 53(e)(2), M.R.Civ.P., is clear that, in nonjury actions
such as this, '!the [trial] court shall accept the master's findings
of fact unless clearly erroneous." The burden of challenging the
master's findings is on the party objecting; the related burden of
establishing that a finding is clearly erroneous also is on the
party objecting . The intent--implicit, but clear--of Rule
53(e)(2), M.R.Civ.P., is that all objections to a master's report
must be timely made in a party's written objections. In the
future, objections not made to the district court at that juncture
will not be entertained by this Court on appeal. Due to the
absence of earlier interpretations of Rule 53 (e)(2), M.R. Civ.P.,
however, we will address all of the issues Robert raises on appeal.
Did the District Court err in determining that Priscilla
met the threshold requirements of 5 40-4-203(1), MCA?
This Court will not reverse a district court's award of
maintenance unless the court's findings of fact are clearly
erroneous. In re Marriage of Zander (Mont. 1993), 864 P.2d 1225,
1231, 50 St.Rep. 1522, 1525. As a threshold matter, Priscilla is
entitled to maintenance only if the District Court properly found
that she lacks sufficient property to provide for her reasonable
needs and is unable to support herself through appropriate
employment. See 5 40-4-203(1), MCA. Robert assets error regarding
both of these threshold requirements.
Robert contends that, in determining Priscilla's lack of
sufficient property to provide for her reasonable needs, the
District Court erred in not making a finding of fact of the value
of Priscilla's one-half share of his retirement benefit accumulated
during the marriage. The parties had stipulated to this division
of Robert's employer-sponsored retirement benefits. Robert argues
that the amount of Priscilla's retirement share must be considered
by the court in determining whether Priscilla has sufficient
property to provide for her reasonable needs.
Under the circumstances before us, Robert's argument borders
4
on the frivolous. The retirement benefit to be received by
Priscilla in the future is totally irrelevant to her present
ability to provide for her reasonable needs. It is "propertytt
she
does not currently have and, therefore, cannot contribute toward
her living expenses. We conclude that the District Court did not
err in failing to consider Priscilla's future share of Robert's
retirement benefit in determining whether she has sufficient
property to provide for her reasonable needs.
With regard to the court's findings relating to Priscilla's
inability to support herself through appropriate employment, Robert
argues generally that there is no admissible evidence of record to
support the findings, because the only evidence submitted by
Priscilla was her own testimony. This argument also borders on the
frivolous. A party's testimony as to work experiences, living
expenses, health history and physical abilities, based as it is on
personal knowledge, is relevant and admissible. Rules 401 and
402, M.R.Evid.
Robert's first specific argument in this regard is that the
Special Master's findings that Priscilla's poor health precluded
her from securing employment are based on inadmissible hearsay
medical evidence to which he objected. We observe at the outset
that Robert's reading of the Special Master's findings is overly
broad; the only former employment of Priscilla's which the master
found precluded by her poor health and related limitations is
waitressing.
The record reflects two objections at the beginning of
Priscilla's testimony on direct examination about her health and
medical history:
Q: Could you describe to the court what your current
health is as well as a brief history of your health?
A: Last year I was diagnosed with breast cancer.
[By Robert's counsel]: Objection, Your Honor. She can
testify as to her personal knowledge with respect to her
health. If she's going to testify as to what a physician
or doctor has told her regarding her health, we would
like to have the physician or doctor present for cross-
examination.
Q: Describe your health history to the Court.
A: Okay. Last year I was diagnosed --
[By Robert's counsel]: Objection, Your Honor. When she
refers to "Diagnosis," she's referring to a doctor's
statement regarding her health. I want her testimony to
be limited to what she personally knows regarding her
health, not what a physician has told her, a physician
who is not in this court and not available for cross-
examination.
The Special Master overruled both of the objections, but suggested
that Priscilla rephrase her statements in testifying about her
health.
Priscilla's testimony about her health and medical history
continued thereafter without further reference to any "diagnosisw
or statements made to her by physicians, and without objection.
The testimony was limited to her personal knowledge.
She recounted that she had developed breast cancer in 1992,
and had undergone surgery and chemotherapy. She also testified
that she had had breast cancer, surgery and chemotherapy ten years
earlier and that the lymph nodes underneath both of her arms had
been removed. She testified that, as a result, she is unable to do
heavy lifting and must avoid burns and extensive scratches. This
relevant and uncontroverted testimony, to which no objection was
made and no cross-examination was directed, provided a sufficient
basis for the finding that Priscilla's health-related limitations
precluded her from engaging in her former occupation of
waitressing.
Robert's second specific argument relating to the findings of
Priscilla's inability to support herself is that the Special Master
erred in giving the testimony of his vocational rehabilitation
expert, Charles Schloss, little weight. In opposition to
Priscilla's testimony that she would be unable to support herself
through her former occupations of bookkeeper, legal secretary,
assistant restaurant manager and real estate agent, Schloss
testified that Priscilla needed no further training to be
employable. Robert apparently contends that Schloss' testimony
mandated a finding that Priscilla was able to support herself and,
therefore, the findings to the contrary were clearly erroneous. We
disagree.
Schloss' testimony was accorded little weight because of its
reliance on Montana Department of Labor information obtained prior
to November 1991 regarding wage ranges and availability of jobs; in
other words, the information was more than one and one-half years
out of date at the time of the hearing in this case. Further, the
Special Master found that Schloss reached his conclusions about
Priscilla's skills and employability without interviewing her or
considering her physical limitations, relative inexperience and
history of unemployment in recent years.
Here, the record contains conflicting testimony from Priscilla
and Schloss on the issue of Priscilla's ability to support herself.
The Special Master, having heard and evaluated the testimony and
observed the witnesses' demeanor, accorded Schloss* testimony
little weight. We will not substitute our judgment for that of the
trier of fact regarding the credibility of witnesses or the weight
to be given to their testimony. Matter of B.T. B. (1992), 254 Mont.
449, 454, 840 P.2d 558, 560-61.
We conclude that the record contains substantial credible and
admissible evidence to support the findings that Priscilla lacked
sufficient property to provide for her reasonable needs and is
unable to support herself through appropriate employment; nor are
those findings otherwise clearly erroneous. We hold, therefore,
that the District Court did not err in determining that Priscilla
met the threshold requirements of 5 40-4-203(l), MCA, and was
entitled to maintenance.
Did the District Court err in determining the amount and
duration of maintenance?
As set forth above, the court awarded Priscilla maintenance of
$250 per month for three years or until, with due diligence, she
completes the necessary education for a degree in certified public
accounting. Robert argues that the District Court improperly
applied both the "standard of living" factor in 5 40-4-203 (2)(c),
MCA, and the "time necessary to acquire sufficient education ...
to find appropriate employment" factor in 5 40-4-203(2)(b), MCA.
Robert's argument regarding the "standard of living" factor is
that the amount of maintenance awarded was based on Priscilla's
testimony that she desired a degree in certified public accounting
in order to achieve a standard of living higher than she enjoyed
during the marriage. According to Robert, awarding maintenance on
this basis is error because In re Marriage of Madson (1978), 180
Mont. 220, 590 P.2d 110, and In re Marriage of Skinner (1989), 240
Mont. 299, 783 P.2d 1350, define "appropriate employmentu under
5 40-4-203(2), MCA, in relation to the standard of living achieved
by the parties during marriage.
The cases cited by Robert have no application here because
Robert mischaracterizes Priscilla's testimony about the parties'
standard of living and her purpose in desiring the accounting
degree. Priscilla's testimony that she "wanted a better standard
of livingtrrelated to her desire to obtain additional education
durinq the marriage and Robert's discouragement of those desires.
That testimony had no bearing on Priscilla's need, as found by the
court, to obtain additional education in order to support herself
after dissolution of the marriage. We conclude that the District
Court did not err in applying the "standard of living" factor in
5 40-4-203 (2)( c ), MCA.
Robert's final argument is that the District Court erred in
awarding maintenance for an indefinite period of time. It is clear
from the decree that the court intended to provide support for
Priscilla during the time necessary to complete an accounting
degree. Priscilla testified that it would take her three years to
obtain the degree, The court awarded maintenance for three years
or until, with due diligence, she completedthe education necessary
for the accounting degree. It is the latter portion of the award
with which Robert takes issue.
A similar argument was made and accepted by this Court in
Marriase of Zander. That case is distinguishable, however. There,
the spouse testified that she would need two to five years to get
the degree; the district court awarded maintenance until the spouse
"completes her RN degree and obtains full time employment.''
Marriaqe of Zander, 864 P.2d at 1231. We expressed our concern
that the decree contained no time limit whatsoever on the
maintenance award and, because there was evidence regarding the
length of time needed to complete the degree, concluded that the
district court erred by not putting a time limitation on the
maintenance award. Marriaqe of Zander, 864 P.2d at 1232.
Here, Priscilla testified that it would take her three years
to obtain the accounting degree. The court awarded maintenance for
that period or until, with due diligence, Priscilla completed the
necessary education. This does not represent the same totally
open-ended maintenance of which we disapproved in ~arriase of
Zander. Rather, it represents the practical, common sense
understanding by the District Court that even with diligence on
Priscilla's part, it might not be possible for her to complete the
degree within three years.
It is appropriate and, indeed, preferable in most cases for
courts to specify a time certain at which maintenance will
terminate. We cannot say, however, t h a t t h e duration of the
maintenance award here constituted an abuse of discretion by the
District Court under these circumstances. In the event ~riscilla
completes her degree work within the three years, Robert's
maintenance obligation will cease at that time. If she does not
complete the degree within a period of time thereafter which would
comport with a reasonable person's definition of "due diligence,I1
Robert's remedy will be to move the court to modify the maintenance
award on that basis. Given the imbalance between the parties1
respective personal resources now and for the foreseeable future,
it is not inequitable to place this contingent burden on Robert.
Robert's final argument is that the District Court abused its
discretion by awarding maintenance while Priscilla completes her
education for an accounting degree because no evidence supported
the underlying assumptions that she is capable of completing the
education or that the education will render Priscilla able to
support herself through Ifappropriateemployment. In this regard,
we need observe only that neither statute nor case law require such
guaranteed outcomes as Robert apparently believes are necessary to
support an award of maintenance during a reasonable period of
additional education or training. The District Court did not abuse
its discretion.
Final observations are appropriate here with regard to the
required contents of an appellant's brief and the partiesv
respective burdens on appeal. We note that Robert failed to
present any legal authority whatsoever in support of two of his
"issues." In response to Priscilla's statements in this regard,
Robert asserts that he need not provide authority because it is
respondent's duty to do so. Robert is in error.
Appellants are charged with the burden of establishing the
errors they contend occurred in district court proceedings.
Appellants must raise legal issues and support them with legal
authorities. The requirement of Rule 23 (a)(4), M.R.App. P., is
clear that arguments must contain the appellant's contentions and
"the reasons therefor, with citations to the authorities . . .
relied on." Counsel are cautioned that compliance with the
Montana Rules of Appellate Procedure is required and that this
Court remains free to refuse to address issues not properly
supported with legal authority.
We conclude that the findings challenged by Robert are not
clearly erroneous. We further conclude that the court did not
abuse its discretion. ,-
AFFIRMED.
Justices
May 17, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Gary A. Crowe, Esq.
Attorney at Law
P. 0 . Box 924
Kalispell, MT 59903-0924
Randy K. Schwickert, Esq.
Anorney at Law
6336 Hwy. 93 So.
Whitefish, MT 59937
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA