In Re the Marriage of Lozon , 49 State Rptr. 1135 ( 1992 )

No. 92-112
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
BONNIE MZON,
Petitioner and Respondent
and r'
LARRY MZON,
-- .%UF S J P R E M E COURT
STATE OF MONTANA
Respondent and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Elizabeth A. Best, Attorney at Law,
Great Falls, Montana
For Respondent:
John F. Iwen, Attorney at Law,
Great Falls, Montana
Submitted on Briefs: May 21, 1992
Decided: December 18,
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Larry Lozon appeals from a decree of dissolution of his
marriage to Bonnie Lozon, entered in the Eighth Judicial District
Court, Cascade County, which awarded Bonnie $200 per month for
maintenance for two years, in addition to an award of costs and
attorney fees.
Larry contends that there is not substantial evidence in the
record to support the awards of maintenance, costs, and attorney
fees. We affirm the District Court decision.
Larry raises the following issues on appeal:
1. Did the District Court err when it awarded maintenance to
Bonnie Lozon?
2. Did the District Court err when it awarded costs and
attorney fees to Bonnie Lozon?
Bonnie and Larry Lozon were married in Great Falls on
September 30, 1972. The parties separated in August 1988 and have
lived apart since that time. On June 20, 1990, Bonnie filed a
petition for dissolution with the District Court.
The parties have two children. Prior to the date of
dissolution, Jason, who is 17, moved to live with his father in
Maryland. Danielle, who is nine, resides with her mother in Great
Falls. At the time of the hearing, Bonnie was 38 years old and
Larry was 39 years old.
Larry worked as a drug and alcohol counselor with the United
States A m y throughout the partiess 19-year marriage. In late 1990
and 1991, Larry earned approximately $2400 per month after taxes as
2
a counselor, and an additional $600 per month from his part-time
work at a bowling alley in Maryland. Larry's yearly earnings from
1987-1990 averaged between $25,000 and $30,000.
In a deposition taken in August 1991, Larry stated that he was
retiring from his military job in September 1991. He anticipated
finding new employment as a drug and alcohol counselor in private
industry or with the government and expected that his annual salary
would be approximately $16,000. Larry is entitled to receive $998
per month as his military retirement pension. He estimated that
his one-half share of his pension, coupled with a $16,000 salary,
would provide him with a yearly income of $22,223. In addition,
Larry will receive free medical care from the military for the rest
of his life.
Bonnie has a tenth grade education. During the 19 years of
marriage, she worked primarily as a homemaker, raising the
children. She has held a few jobs outside the home. In 1974,
Bonnie worked in Alaska as a dish washer. In 1979, she worked in
Miesau, Germany, bussing tables and washing dishes. Between
February and December 1987, and on and off in 1988, she worked in
Furth, Germany, in the Commissary as a store worker. Due to a back
injury, Bonnie has not done any stocking of shelves or lifting
since December 1987. She is currently taking medication for both
back pain and asthma. Bonnie has been unemployed since August
1988. She unsuccessfully applied for employment in 1991, but did
not seek employment during the year before the trial.
Since the parties1 separation in August 1988, Bonnie's only
source of income has been child support. Immediately prior to the
dissolution, she received voluntary monthly child support payments
of $225. She supplemented this income with food stamps worth $200
per month.
As a property settlement, the parties agreed, in view of the
length of their marriage, to equally divide Larry's monthly
retirement pension of $998. As of the date of the dissolution,
Bonnie shall receive $499 per month as her one-half share. The
parties mutually divided the personal property accumulated by them
during their marriage. Bonnie retained the furniture. Larry
received the 1976 Ford truck. The parties did not own any real
property.
The District Court granted joint legal custody of the minor
children and the parties agreed that it would be in the best
interest of the children for primary care, custody, and control of
Danielle to be placed with Bonnie, and for primary care, custody,
and control of Jason to be placed with Larry. The court ordered
Larry to pay Bonnie $215 per month as child support for Danielle.
Additionally, the court awarded Bonnie $200 per month for
maintenance for a period of two years. The District Court
explained its award of maintenance in Finding of Fact No. 8:
Petitioner lacks sufficient property to provide for
her reasonable needs and is unable to support herself
through appropriate employment.
When the divorce is final, Petitioner will receive
$499.00 per month as her share of Respondent's retirement
pension with the military. This sum of money is not
sufficient to meet Petitioner's monthly expenses.
Petitioner is further entitled to spousal maintenance
from Respondent based upon the duration of the marriage
and the financial resources available to the Respondent.
The spousal maintenance will be in the sum of [$200] per
month for a period of two years from the date of this
Decree to enable Petitioner to get retraining to become
self-sufficient and perhaps obtain employment which would
provide her with health and accident insurance.
In addition to ordering child support and maintenance, the
District Court awarded Bonnie costs and attorney fees. Larry
appeals the District Court's award of maintenance, costs and
attorney fees. He alleges that there is not sufficient evidence to
support either award.
I
Did the District Court err when it awarded maintenance to
Bonnie Lozon?
This Court will not reverse the district court's award of
maintenance unless the findings are clearly erroneous. In re the
MamkzgeofEschenbacher (Mont. 1992), 831 P.2d 1353, 1355, 49 St. Rep.
393, 394; ZnretheMam'ageofEide (1991), 250 Mont. 490, 493, 821 P.2d
1036, 1037. An award of maintenance is governed by 9 40-4-203,
MCA. InretheMam'ageofDunn (1991), 248 Mont. 95, 98, 809 P.2d 571,
573; ZnretheMam'ageofSu~~ivan
(1990), 243 Mont. 292, 298, 794 P.2d
687, 690. As we stated in Dunn:
An award of maintenance is premised upon a finding
by the court that the individual seeking maintenance
'lacks sufficient property to provide for his reasonable
needs; and is unable to support himself through
appropriate employment. Section 40-4-203 (1)(a) and (b),
MCA.
In the present case, Larry asserts that the financial
resources available to Bonnie are not inadequate to provide for her
needs. Larry also contends that Bonnie is unemployed by choice.
However, the District Court found to the contrary. We conclude
that the court's findings are not clearly erroneous.
Substantial evidence exists to support the court's finding
that Bonnie does not have sufficient income to pay her monthly
expenses. Bonnie has $499 per month available to her from Larry's
pension. Adding this to the amount she was receiving for child
support, her monthly income equals $724. Her monthly expenses are
$885.20.
There was also substantial evidence to support the court's
finding that Bonnie is unable to support herself through
appropriate employment. The records indicate that Bonnie has been
a homemaker for 19 years. She has a tenth grade education and a
limited work history. She has held primarily minimum wage jobs.
Because of a back injury she has not done any stocking of shelves
or lifting since December 1987. Furthermore, she has health
problems which, while unsupported by medical testimony, are
uncmtroverted by any substantial evidence.
The District Court's findings regarding Bonnie's eligibility
for maintenance were not clearly erroneous. There was sufficient
evidence to support the District Court's finding that the
requirements of 5 40-4-203(1), MCA, were satisfied.
After determining maintenance eligibility, the District Court
must determine the appropriate amount and duration of maintenance.
Section 40-4-203 (2), MCA, sets forth specific factors for the court
to consider:
(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.
As we stated in Dunn, "[a] specific finding by the District
Court as to each of these relevant facts is not required as long as
the court considered proper information in addressing these facts
and based its decision upon substantial credible evidence.It Dunn,
809 P.2d at 573; S d i v a n , 794 P.2d at 691. Moreover, "these
relevant facts are to be considered by the court as a whole in the
determination of the final maintenance award." Dunn, 809 P.2d at
Substantial credible evidence exists to support the District
Court's monthly maintenance award of $200 to Bonnie. The court
based its decision on the 19 year duration of the marriage,
Bonnie's inability to meet her monthly expenses independently
without further employment training, and Larry's ability to make
the maintenance payments as a drug and alcohol counselor.
Larry testified that his monthly expenses were approximately
$1260, plus what he spends on recreation. The court determined
that given Larry's ability to earn $22,223 per year, he could
afford to pay Bonnie maintenance of $200 per month. The court
decided that maintenance for a duration of two years would enable
Bonnie to obtain the retraining and further education she needs to
secure employment and to become self-sufficient.
In awarding maintenance to Bonnie, the District Court
considered the couple's work history, skills, and employment
capabilities. The court's award of maintenance to Bonnie is
supported by substantial credible evidence.
I1
Did the District err when it awarded costs and attorney fees
to Bonnie Lozon?
Larry claims that the District Court erred when it granted
Bonnie her costs and attorney fees. Awarding of attorney fees is
governed by 5 40-4-110, MCA, which states:
The court from time to time, after considering the
financial resources of both parties, may order a party to
pay a reasonable amount for the cost to the other party
of maintaining or defending any proceeding under chapters
1 and 4 of this title and for attorney's fees, including
sums for legal services rendered and costs incurred prior
to the commencement of the proceeding or after the entry
of judgment .
The awarding of attorney fees is clearly permissive under this
statute. Sullivan 794 P.2d a t 691; InretheMarriageofSmith (1990), 242
Mont. 495, 503, 791P.2d 1373, 1378. The appropriate standard for
reviewing district court decision awarding costs and attorney
fees under f 40-4-110, MCA, is whether the court abused its
discretion when it awarded such fees and costs. In re the Maniage of
Manus (1987), 2 2 5 Mont. 457, 465, 733 P.2d 1275, 1279; InretheManiage
ofJohnston (l986), 223 Mont. 383, 388, 726 P.2d 322, 326. To insure
that there is no abuse of discretion when fees and costs are
awarded, f 40-4-110, MCA, requires the court to consider the
relative financial resources of the parties before making its
decision. Sullivan, 794 P. 2d at 692.
In its Conclusion No. 8, the District Court states that:
Petitioner has incurred attorney's fees and Court costs
to prosecute her action, none of which have been paid;
based upon the financial disparity between the parties'
income producing abilities, the necessity shown by the
Petitioner, the entire economic and financial facts and
circumstances herein set out, the Court concludes that
petitioner does not and will not have the capability to
pay her attorney's fees and costs. The Respondent should
pay the same.
The record reveals that the District Court was aware of the
financial resources and financial burdens of both Bonnie and Larry
as required by 5 40-4-110, MCA, and that the court made an
informed, proper decision to award Bonnie attorney fees. The
District Court's decision in this case was not a simple or easy
one. Based on the combined resources of the parties, which are
evident from the record, it was obviously difficult to apportion
them in a way that comfortably supports two households and still
leaves enough to pay for the cost of litigation. However, we
conclude that the District Court's award of costs and attorney fees
was not an abuse of discretion and the District Court's award of
maintenance was not clearly erroneous.
We affirm the District Court.
We concur:
,/
{d+r%- Chlef Jus ice
December 18, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Elizabeth A. Best
BEST LAW OFFICE
514 Strain Building
Great Falls, MT 59401
JOHN F. IWEN, Esq.
Attorny at Law
Suite 206, Strain Building
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA