In Re the Marriage of Reid , 226 Mont. 116 ( 1987 )

No. 86-552
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
JEAN A. REID,
Petitioner and Appellant,
and
FRANK M. REID,
Respondent and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Deirdre Caughlan, Butte, Montana
For Respondent:
Robert P. McGee, Butte, Montana
Submitted on Briefs: Feb. 5, 1987
Decided: March 12, 1987
Filed: 13,1987
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Clerk
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Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Jean A. Holland, formerly Jean A. Reid (wife), appeals
the findings of fact, conclusions of law and judgment of the
Second Judicial District Court distributing marital property
and awarding her maintenance. We affirm.
The parties were originally married in 1953. That
marriage was dissolved in 1979. Two months later the Reids
remarried. The second marriage ended in 1986, when husband
moved to Spokane. He was previously employed as a
construction worker. Husband, who was 65 at the time of the
hearing, is now retired. He has a pension fund with James
Gilam and Company in the approximate amount of $25,000. He
also receives a monthly pension of $567 from Teamsters and
Social Security monthly payments of $600.
Wife was 53 years of age at the time of the hearing.
She was not employed outside the home during her married
life. She worked as a homemaker and reared the parties' four
children. She was trained in typing at the vocational school
in Butte, Montana, and was employed as a food demonstrator at
a grocery store for two days. The trial judge awarded wife
maintenance payments of $350 a month for five years.
Finding of Fact VII.
That the Petitioner has no health problems, has
obtained additional training through the vocational
school at Butte, Montana and had worked within one
week of the hearing on this matter* That she is
therefore capable of retraining and returning to
the work force, and to assist her should have the
sum of Three Hundred Fifty and No/100 ($350.00)
Dollars per month for the period of five (5) years
for the purposes of retraining for employment.
The parties jointly own a home in Butte. Wife, based on
1986 tax appraisals, values the house at $25,000. Husband
contends it is worth $50,000. Wife requested that she be
awarded the house. The trial judge ordered that it be
reappraised and sold, with each party receiving one-half of
the proceeds.
Other assets include an account at the Montana Bank of
Butte in husband's name totalling $5,650; accounts at the
Safeway Credit Union in wife's name totalling $11,092.40; a
car worth approximately $500; $1,000 in household
furnishings; and an IRA valued at approximately $1,100. The
funds in wife's credit union account originated from the
wife's award of one-half the marital property at the time of
the first dissolution. Husband's half has been dissipated,
but it is unclear when or on what the money was spent.
The trial judge determined that all marital assets be
liquidated and that the proceeds, together with all cash
accounts, be divided equally between the parties. Wife
appeals, raising three issues:
1. Did the trial judge err in ordering the residence of
the parties sold and in not awarding its use and occupancy to
wife?
2. Did the trial judge err in including in the marital
estate the savings retained by wife from the first
dissolution and in awarding husband one-half thereof?
3. Did the trial judge disregard wife's present needs
and future employability when determining her maintenance
award to be $350 a month for five years?
We find no error. Absent a clear abuse of discretion by
the trial judge, this Court will overturn neither the
distribution of marital property nor an award of maintenance.
Grenfell v. Grenfell (1979), 182 Mont. 229, 596 P.2d 205.
Section 40-4-202, MCA, governs the distribution of
marital property. It sets forth numerous factors to be
considered:
Division of property. (1) In a proceeding for
dissolution of a marriage ... the court, without
regard to marital misconduct, shall ... finally
equitably apportion between the part'ies the
property and assets belonging to either or both,
however and whenever acquired and whether the title
thereto is in the name of the husband or wife or
both. In making apportionment, the court shall
consider the duration of the marriage and prior
marriage of either party; antenuptial agreement of
the parties; the age, health, station, occupation,
amount and sources of income, vocational skills,
employability, estate, liabilities, and needs of
each of the parties; custodial provisions; whether
the apportionment is in lieu of or in addition to
maintenance; and the opportunity of each for future
acquisition of capital assets and income. The
court shall also consider the contribution or
dissipation of value of the respective estates and
the contribution of a spouse as a homemaker or to
the family unit. In dividing property acquired
prior to the marriage . .. the court shall
consider those contributions of the other spouse to
the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have
facilitated the maintenance of this property; and
(c) whether or not the property division serves as
an alternative to maintenance arrangements.
Section 40-4-203, MCA, controls the awarding of
maintenance. It states:
(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 . . .;
(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 lower court judge need not articulate each factor
separately as long as the findings are sufficient to allow
non-speculative review by this Court. In re the Marriage of
Larson (1982), 200 Mont. 134, 139, 649 P.2d 1351, 1354.
Our ultimate test for adequacy of findings of fact
is whether they are sufficiently comprehensive and
pertinent to the issues to provide a basis for
decision, and whether they are supported by the
evidence presented.
In re the Marriage of Jensen (1981), 631 P.2d 700, 703, 38
St.Rep. 1109, 1113.
Upon review, it is apparent that the trial judge
attempted to distribute the property equitably and to support
his distribution with adequate findings . He divided the
marital estate, less husband's monthly pension and Social
Security benefits, equally between the parties. He
acknowledged wife ' s lack of employment training by providing
maintenance payments for five years. He further recognized,
by reducing wife's $600 request for maintenance to $350, that
although wife's ability to earn income in the future was
slight, it was better than that of husband, who was retired
and apparently ill. Testimony at trial indicated that
husband would be undergoing surgery in the near future.
The trial judge also has considerable discretion in
determining how to distribute property acquired prior to the
marriage. It may be equitably apportioned between the
parties with no regard to title or time of acquisition. The
only requirement is that the court consider the contributions
to the marriage of the spouse who did not acquire the
property. In re the Marriage of Lewis (1982), 198 Mont. 51,
643 P.2d 604. We find no abuse of discretion in the trial
judge's decision to divide wife's remaining proceeds from the
first dissolution equally with husband upon the second
dissolution. Husband was, afterall, the sole source of
marital income.
Affirmed.
We Concur: