In Re the Marriage of Herman , 245 Mont. 451 ( 1990 )

No. 90-036
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN RE THE MARRIAGE OF JAMES LLOYD HERMAN,
Petitioner and Cross-Appellant,
and
ELAINE GLENNA HERMAN,
Respondent and Appellant.
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APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Jeffrey Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Leo J. Kottas, Sr., Helena, Montana 59624
For Respondent:
Elaine Glenna Herman, pro set Helena, Montana 59604
Submitted: September 27, 1990
Pecided: December 11, 1990
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.
In September of 1989, the Lewis and Clark County District
Court entered a decree of dissolution of the marriage of James
Lloyd Herman (husband) and Elaine Glenna Herman (wife). Elaine
Herman appeals from the District Court's award of property,
maintenance, child support and attorneysv fees; James Herman
cross-appeals from the award of attorneysv fees. We affirm.
The issues for review are:
1. Whether the District Court erred in its property
division.
2. Whether the District Court erred in its
maintenance award.
3. Whether the District Court erred in its child
support award.
4. Whether the District Court erred in its
attorneysv fees award.
Husband filed a petition for dissolution of marriage in Lewis
and Clark County in October of 1984. On August 11, 1986, the court
appointed a Special Master to make proposed Findings of Fact and
Conclusions of Law on all matters of property division and child
support, and on wife's request for maintenance and attorneysv fees.
From evidence presented at the hearing, the Special Master prepared
findings and conclusions to which wife had certain objections. A
hearing held on December 19, 1988, disposed of these objections and
provided a basis for issuing a final decree. Evidently a
discrepancy arose between the proposed final decrees prepared by
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the parties, and the court ordered a transcript be prepared of the
proceedings that had occurred before the Special Master. Upon
review of that transcript, the court issued an opinion and order
on July 17, 1989, in which it adopted and clarified the rulings of
the December 1988 hearing. A decree of dissolution was entered on
September 27, 1989. From this decree, wife and husband appeal.
The first issue raised on appeal by wife is whether the
District Court erred in its property division.
Wife contends that the District Court overvalued the family
home which she was awarded as part of the property settlement. She
protests that Itifthe most recent evidence of value is used for the
homeIf1she would be awarded less than $30,000 in equity. "The
Master awarded the Petitioner more than that in missing cash,I1 she
states. However, the Special Master, after hearing conflicting
testimony as to the value of the house, chose the estimate of the
appraiser he determined to have the best qualifications. He found
that the value was almost $40,000 higher than that which wife would
have had him adopt. He thus concluded that that sum, coupled with
the other property awards he made, provided her with ample
resources to reestablish herself.
As to the remainder of the personal property, wife contends
that the Special Master did not properly consider assets that were
gained through inheritance or gift. Our review of the record shows
that the Master used utmost care in considering the whole estate
of the parties, and simply divided things as he saw fit according
to the evidence. The issues of missing and undisclosed property
were likewise considered. The special Master's findings, adopted
by the District Court, indicate that wife was awarded the "far
greater portion of the propertyv1 provide her sufficient property
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to attend to her needs.
Deference is given to the trial court when faced with
conflicting evidence. "Unless there is a clear preponderance of
the evidence against the District Court's valuation, its findings,
where based on substantial though conflicting evidence, will not
be disturbed on appeal." Marriage of Milesnick, 235 Mont. 88, 95,
765 P.2d 751, 755 (1988). Here the District Court, through the
Master's special investigation, made a reasonable finding on the
value of the house and the property after carefully considering
all of the evidence before it. ind ding no clear preponderance of
evidence to the contrary, we will not disturb its finding.
The next issue raised on appeal is whether the District Court
erred in its maintenance award.
Wife contends that the District Court should have awarded her
permanent maintenance. The court awarded wife maintenance in the
sum of $1,000 per month for twelve months. Wife contends that
because she has been absent from her career for a number of years,
the one year award does not give her sufficient time to reestablish
herself in her teaching career. She contends that she is entitled
to three years temporary maintenance of $800 per month, plus
permanent maintenance based on forfeiture of twenty years loss of
professional advancement.
The relevant factors to be considered in determining the
amount and duration of the maintenance award are set out in tj 4 0 -
4-203(2), MCA. That section provides:
(2) The maintenance order shall be in such amounts and
for such periods of time as the court deems just, without
regard to marital misconduct, and after 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.
We realize that the District Court faces a considerable task in
determining a maintenance award. Our standard of review in
dissolution cases is accordingly limited. We will not disturb a
District Court's judgment that is based on substantial credible
evidence, unless a clear abuse of discretion is shown. In Re
Marriage of Stewart, 232 Mont. 40, 42, 757 P.2d 765, 767 (1988).
In the present case, the Special Master awarded what he
deemed as a far greater portion of the property to wife to provide
for her reasonable needs. Because wife does not suffer from a
disability and has no health problem that prevents her from
working, and because she has apparently obtained sufficient college
credits to allow her to return to work as a teacher, the Special
Master found that she would probably soon find appropriate
employment. By awarding her the substantial balance of the
property, he presumed she would be able to maintain the standard
of living established during the twenty year marriage. Further,
although wife did not accumulate the retirement benefits she would
have received had she remained a teacher throughout the marriage,
she was awarded nearly one-half of husband's accumulated PERS
account. In short, while husband was in the best position to
acquire assets during the marriage, the Master took special care
to consider wife's non-monetary contribution during most of the
marriage when computing her maintenance award.
The District Court's adoption of the Special Master's findings
was clearly based on substantial credible evidence. The Master
heard days of testimony and examined copious exhibits before making
his findings and conclusions. The District Court thoroughly
reviewed the outcome, even to the extent of having another hearing
on objections. We therefore find no abuse of discretion.
The next issue raised on appeal is whether the District Court
erred in its child support award.
The District Court awarded wife $570 per month for support of
the parties' minor child. Husband is also ordered to maintain
health insurance for the child. Wife claims that the Master erred
when considering the child's need and should have awarded a
monetary compensation for the learning disabled child, and further
should have awarded wife a $200 per month custodial fee.
Again the Special Master was confronted with conflicting
evidence, and in some areas of contention, no evidence at all. As
stated above, when faced with conflicting evidence, we give
deference to the trial court's decision. The reason is apparent.
"When confronted with conflicting evidence, the court must use its
fact-finding powers to determine which evidence is more credible.
Having had the opportunity to observe the witnesses, the trial
court is in a position superior to that of the appellate court to
judge the credibility of the testimony.It Milesnick, 235 Mont. 88,
95, 765 P.2d 751, 755 (1988). Here the Special Master evaluated
the evidence regarding the child, as did the District Court. We
are particularly alert to allegations of unfairness when it comes
to the care of a minor, and in this case, disabled child. However,
our review of the decision, coupled with the District Court's
review, convinces us of its soundness. We affirm the child support
award.
The last issue raised on appeal is whether the District Court
erred in its attorneyst fees award.
Both of the parties contest the attorneys' fees award in this
appeal. Husband who has been ordered to pay one-half of wife's
attorneys' fees objects on the ground that no hearing was held on
any of the fees and that he had no opportunity to cross-examine the
attorneys on the value of their services. However, the record
discloses that there was a hearing at which husband, his attorney
and wife's then attorneys were present. At that hearing counsel
fees were discussed and apportioned by the court in the presence
of husband and counsel of record and all agreed on the figures
calculated by the court. Following the discussion of the
calculations, the court set the fees and agreed to hold a hearing
on the fees upon the request of any party. No hearing was ever
requested. The court ordered husband to pay one-half of wife's
attorneyst fees. We find no abuse of discretion.
Af finned.
Justice
We Concur: