In Re the Marriage of Voelkel , 226 Mont. 143 ( 1987 )

No. 86-388
I N THE SUPREME COURT OF THE STATE OF MONTANA
1987
I N RE THE MARRIAGE OF
CAROL VOELKEL, a / k / a CAROLYN VOELKEL,
P e t i t i o n e r and A p p e l l a n t ,
and
GLENN L . VOELKEL,
R e s p o n d e n t and R e s p o n d e n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e G o r d o n B e n n e t t , Judge presiding.
COUNSEL O F RECORD:
For A p p e l l a n t :
J a c k s o n & R i c e ; G r e g o r y J a c k s o n , H e l e n a , Montana
John W. M a h a n , c o - c o u n s e l , H e l e n a , M o n t a n a
F o r Respondent:
P e t e r Michael Meloy, Helena, Montana
S u b m i t t e d on B r i e f s : Jan. 2 2 , 1 9 8 7
Decided: March 1 8 , 1 9 8 7
Filed: MAR 18 19871
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Carol Voelkel appeals a Lewis and Clark County District
Court order dividing the marital property of the parties and
establishing child custody, support and maintenance. The
court ordered the parties to pay their own attorney fees and
ordered the husband to pay all court costs. Two issues are
presented on appeal: (1) Whether the District Court abused
its discretion in dividing the marital property of the
parties? (2) Whether the District Court abused its
discretion by failing to award the wife reasonable attorney
fees? We affirm.
The parties were married in 1960, separated in March
1984 and were divorced by court decree on February 5, 1985.
The marriage produced five children, two of whom are minors
and presently reside with the wife. During the marriage, the
wife assumed primary responsibility for operation of the home
and caring for the children. She did not work outside the
home except for a brief time prior to the birth of the first
child but did assist the husband in his business, performing
occasional bookkeeping and other related tasks. The wife has
a high school education and was training to be an executive
secretary at the time of the District Court hearing. The
husband worked as a carpenter from 1960 to 1969, did contract
work from 1969 to 1973, and conducted business as "Glenn
Voelkel Builder" until incorporating the business as "Glenn
Voelkel Builder, Inc." in 1983. He is the sole shareholder
of the corporation. The husband earned an average of $21,654
from 1979 to 1983. The marital estate includes two parcels
of real property with equity of $63,567 for the family
residence and $7,138 for the other parcel.
The District Court awarded joint custody of the two
minor children and ordered husband to pay child support of
$250 per child per month. The court awarded maintenance to
the wife of $828 per month from March 1984, the separation
date, to November 1985, and $350 per month from November 1985
to June 1986, for a total. maintenance award of $19,010. The
court gave husband a credit of $29,475 because of the
voluntary payments he made to wife between the separation
date and June 1985. The court further ordered. husband to pay
the wife $17,435 to equalize the division of personal
property and awarded husband the family home on the condition
that he pay the wife $31,783.50 in cash as the wife's fifty
percent share in the equity of the home. Finally, the court
ordered the parties to pay their own attorney fees and
ordered husband to pay all court costs.
Section 40-4-202, MCA, gives the district court the
discretion to equitably divide the marital property. The
standard of review was stated in In re Marriage of McCormack
(Mont. 1986), 726 P.2d 319, 321, 43 St.Rep. 1833, 1835:
The District Court has far-reaching
discretion in making property divisions.
The reviewing court does not substitute
its judgment for that of the trial court,
and will not alter a judgment unless it
finds an abuse of discretion, i .e. , that
the trial court acted arbitrarily without
employment of conscientious judgment or
exceeded the bounds of reason resulting
in substantial injustice. (Citation
omitted. )
The wife disagrees with three aspects of the marital
property distribution. First, she argues that the District
Court did not consider the value of the husband's business
(Glenn Voelkel Builder, Inc.) as part of the marital estate.
We d.isagree with this contention and point to District Court
findings #6 and #12 for support:
VI.
Respondent supported and maintained the
household working as a carpenter from
1960 to 1969, then contracting as a
carpenter from 1969 to 1973, then doing
business as "Glenn Voelkel Builder" until
1983, at which time he incorporated
himself and continued to operate as
"Glenn Voelkel Builder, Inc. " , of which
he is the sole shareholder. The parties
reported total income, all of it earned
by Respondent, of $12,965 in 1979,
$54,744 in 1980, $34,812 in 1981, $492 in
1982 and $5,255 in 1983 for a five-year
average of $21,654 per year. Respondent
could earn approximately $25,000 a year
if employed as a construction
superintendent.
XII.
The marital estate also includes Glenn
Voelkel Builder, Inc. In evaluating the
testimony and exhibits presented on the
subject, we calculate the value of the
business at something less than zero by
deducting as assets a $41,000.00
promissory note to the Respondent, the
sole stockholder, and a $10,000.00
building from which the business is
operated but which is included as part of
the family residence. The "going
concern" value of the business is purely
the name and reputation of the
Respondent.
The court made its findings after hearing from the
parties' experts, both of whom essentially agreed that the
corporation had a net negative value and no appreciable good
will. The trier of fact has the discretion to give whatever
weight he sees fit to the testimony of the expert. Dickerson
v. Dickerson (1980), 188 Mont. 492, 497, 614 ~ . 2 d521, 524.
We find no error since the District Court did consider the
value of the corporation to the marital estate.
The second aspect of the property distribution with
which the wife disagrees is the offset or credit given to the
husband on account of his voluntary payment ($29,475) to the
wife from the date of separation to June 1985. The District
Court awarded the wife monthly maintenance of $828 from March
1984 to November 1985, the time by which the wife should have
completed her secretarial training and obtained employment.
The court also awarded the wife $350 monthly maintenance from
November 1985 to June 1986, bringing the total maintenance
award to $19,010. Since the husband voluntarily paid the
wife $29,475 subsequent to the separation date, the court in
its discretion decided to give the husband a credit for this
amount. The wife claims the court's decision indebted her to
the husband in an amount exceeding $10,000. This is not an
accurate assessment since the record shows that the court, in
addition to awarding a credit to the husband, ordered the
husband to pay $49,218.50 in cash to the wife as her share of
the equity in the family home and for the purposes of
equalizing the personal property distribution. The District
Court considered these matters and had the discretion to
divide the marital property as it deemed necessary. We find
no abuse of discretion in its determination.
Finally, the wife argues that the court abused its
discretion by awarding maintenance only through June 1986.
Evidence was presented that in early 1985 the wife was
attending a Vo-Tech school and taking classes in data
processing, word processing, and accounting. She dropped out
of that program later that year and entered the Adult
Learning Center, enrolling in a secretarial office management
course. A counselor at the center testified that by fall
1985 the wife should have completed the course at the center.
The court considered this testimony and other evidence before
making its finding on the issue:
. .
. At the time of the hearing she [the
wife] was unemployed, had a high school
education, was functioning at an eighth
grade level of competency and was being
trained to be an executive secretary
earning an anticipated five to eight
dollars per hour. Training was to be
completed in the fall of 1985, at which
time her employability would be deemed
good, with entry level salary at
approximately $12,000 per year and a good
prospect for advancement to $14,000 per
year within two years.
We see no reason to disturb the lower court ruling on the
maintenance issue.
The second issue is whether the District Court abused
its discretion by failing to award. the wife reasonable
attorney fees. Section 40-4-110, MCA, states that the court
may, after considering the financial resources of both
parties, order a party to pay the costs and attorney fees of
the opposing party. In re Marriage of Rolfe (Mont. 1985),
699 P.2d 79, 84-85, 42 St.Rep. 623, 629, discusses this
issue:
This Court has held tha.t in a divorce
case a district court must indicate its
reasons for refusing to grant attorneys
fees. Hammeren v. Hammeren (Mont. 1982),
663 P.2d 1152, 1154, 39 St.Rep. 2222,
2223. In this case the District Court at
Finding no. 37 states, "after considering
the financial resources of both parties,
the Court finds that both parties have
the ability to pay their own attorney's
fees and should do so." This is a clear
indication of the court 's reasoning,
therefore the denial of attorneys fees is
upheld. "
The District Court states in its conclusion that
"attorney fees should be paid by the parties, court costs by
respondent." It would appear that by awarding the wife a
cash award of $49,218.50 the court believed that she had the
necessary funds to pay her attorney fees. We deem it
unnecessary to remand to the lower c
justifying the denial of attorney fe
Af firmed.
We Concur: A* ,/
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