Cromwell v. Cromwell, 13711

• Decision Date: 02 November 1977
• Docket Number: No. 13711,13711
• Citation: 174 Mont. 356,34 St.Rep. 1193,570 P.2d 1129
• Parties: Carley R. CROMWELL, Petitioner and Appellant, v. Gardner CROMWELL, Respondent and Respondent.
• Court: Montana Supreme Court

Page 1129

570 P.2d 1129

174 Mont. 356

Carley R. CROMWELL, Petitioner and Appellant, v. Gardner CROMWELL, Respondent and Respondent.

No. 13711.

Supreme Court of Montana.

Submitted Sept. 22, 1977.

Decided Nov. 2, 1977.

Garlington, Lohn & Robinson, Missoula, Larry Riley argued, Missoula, for appellant.

Mulroney, Delaney, Dalby & Mudd, Missoula (Dexter Delaney argued, Missoula), for respondent.

DALY, Justice.

Appellant Carley R. Cromwell brought this action to dissolve her marriage to Gardner Cromwell. The cause was tried before the Hon. E. Gardner Brownlee, district judge, Missoula County, who on November 30, 1976, handed down a final decree. Appellant claimed the right to receive a portion of the jointly acquired property of the parties, together with attorney fees and support. The court, having heard the evidence, decreed the marriage be dissolved and assets of the parties be divided in this manner:

1. To the petitioner, Carley Cromwell:

a. The family home, together with all items of personal property contained therein.

b. The parties' interest in property located in Hawaii.

2. To the respondent, Gardner Cromwell:

a. The retirement and other pension benefits which he had built up during his years as a law professor at the University of Montana.

From this property settlement Carley Cromwell appeals. The only issue on appeal is whether the district court erred in its property division and maintenance (alimony) award.

A district court has far reaching discretion in resolving property divisions, and its judgment will not be altered unless there is a clear abuse of that discretion. Eschenburg v. Eschenburg, Mont., 557 P.2d 1014, 33 St.Rep. 1198 (1976).

In Roe v. Roe, Mont., 556 P.2d 1246, 33 St.Rep. 863, 866 (1976), quoting from Porter v. Porter, 155 Mont. 451, 457, 473 P.2d 538 (1970), this Court stated:

" ' * * * In determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but, rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or exceed the bounds of reason, in view of all the circumstances, ignoring recognized principles resulting in substantial injustice.' " 556 P.2d 1248, 33 St.Rep. 866.

Section 48-321, R.C.M.1947, of the Montana Uniform Marriage and Divorce Act, provides in part:

" * * * the court * * * shall * * * equitably apportion between the parties 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 * * * the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties * * * 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. * * * the court shall consider those contributions of the other spouse to the marriage, including the nonmonetary contribution of a homemaker * * *."

Section 48-322, R.C.M.1947, provides the court may grant maintenance to a spouse if it finds the spouse seeking maintenance:

a. Lacks sufficient property to provide for her reasonable needs, and

b. is unable to support herself through appropriate employment.

Section 48-322 further provides the maintenance order shall be in such amounts and for such periods of time as the court deems just, and the court shall consider all relevant factors including:

a. The financial resources of the party seeking maintenance, including marital property apportioned to her, and her ability to meet her 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...