In Re the Marriage of Singer , 222 Mont. 255 ( 1986 )

No. 85-578
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
DONALD E. SINGER,
Petitioner and Appellant,
and
GEORGIA J. SINGER,
Respondent and Respondent.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly M. Hogan, Bozeman, Montana
For Respondent:
Gregory 0 Morgan, Bozeman, Montana
.
Submitted on Briefs: May 15, 1986
Decided: July 151 1986
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Donald E. Singer (husband) appeals the findings of fact,
conclusions of law and judgment of the Eighteenth Judicial
District Court distributing his and his ex-wife's, Georgia J.
Singer (wife), marital property. The sole issue raised on
appeal is whether the District Court equitably apportioned
the marital estate pursuant to § 40-4-202, MCA. We find the
apportionment to be equitable and affirm the decision of the
trial judge.
Husband filed a petition for dissolution of his marriage
in April of 1983. The hearing was held December 4, 1983. At
that time, the parties had been married for approximately 35
years. Husband was 55 years of age and a retired civil
service employee. His formal education had ended after the
eighth grade. Wife was 56 years of age and an elementary
education student at Montana State University.
The only income of the parties was passive. Husband
received approximately $913.15 a month in retirement
benefits. He also worked odd-jobs as a handyman. Pursuant
to a stipulation entered into pending dissolution of the
marriage, wife received $200 a month maintenance, $375 a
month rental income from the parties' California home and
$251 a month from a ranch mortgage, for a total of $821 a
month. The trial judge later found the expenses of each
party to be approximately $1000 a month.
Following the hearing and husband's petition to amend,
the trial judge divided the marital estate as follows:
ITEM HUSBAND WIFE
California Residence $ 50,000.00
Ponderosa Pines Property
Mobile Home
Mobile Home Furnishings
Coachman Trailer
Subaru
Chevy Pickup
Ranch Mortgage
Alliance Stock
K-Mart Stock
Tools
NASA Retirement (70%)
NASA Retirement (30%)
TOTAL
Further, husband was ordered to pay $150 a month to wife
as maintenance until March of 1987 or her graduation from
college, whichever occurs first.
The amount of monthly payments as a. result of the
division of the parties' assets was determined by the trial
judge to be $926 to wife and $700 to husband. Husband
disagrees, stating that the judge failed to include wife's
maintenance award of $150. Therefore, husband alleges, the
monthly payments are actually $1076 to wife and $550 to
husband.
Maintenance is an award separate and distinct from the
division of marital assets. See S S 40-4-202 and -203, MCA.
Granted, the amount of marital property awarded is to be
considered in awarding maintenance. Section 40-4-203 (2)(a),
MCA. Vivian v. Vivian (1978), 178 Mont. 341, 345, 583 P.2d
1072, 1075. However, wife will receive no maintenance
payments after March 1987. The payments are merely a
temporary device, established to assist wife in her efforts
to support herself. Maintenance for this purpose is clearly
permissible. Section 40-4-203 (2) (b), MCA. Peckenpaugh v.
Peckenpaugh (Mont. 1982), 201 Mont. 314, 319, 655 P.2d 144,
146. In light of wife's devotion of 35 years of her life to
husband and their family and wife's efforts to become
self-supporting, the maintenance award is certainly not
excessive. Nor is it of such magnitude to warrant
diminishment of wife's portion of the marital estate.
Husband also alleges error in the trial judge's decision
to award wife 30% of husband's retirement benefits. Again,
we find no error. Husband a.ccumulated his retirement
benefits while married to wife. At the same time, wife was
foregoing employment, and the attendant retirement benefits,
to raise the family and care for husband. Wife will have
been in the work-force for less than ten years when she
reaches retirement age. Her retirement benefits will
therefore be minuscule. Her past contributions to the family
and to husband entitle her to share in husband's retirement
security.
Absent a clear abuse of discretion by the trial judge in
applying the relevant factors of $ 5 40-4-202 and -203, MCA,
we will not disturb the trial judge's findings, conclusions
and judgment. Reese v. Reese (1979), 185 Mont. 52, 55, 604
P.2d 326, 328. We find no abuse of discretion.
Affirmed.
We Concur:
.A