In re Brivka

• Decision Date: 31 March 2020
• Docket Number: DA 18-0676
• Citation: 459 P.3d 1289 (Table),2020 MT 76 N,399 Mont. 553
• Parties: IN RE the MARRIAGE OF: Maryna BRIVKA, Petitioner and Appellee, and Roy NAVOLYNSKI, Respondent and Appellant.
• Court: Montana Supreme Court

399 Mont. 553

459 P.3d 1289 (Table)

2020 MT 76 N

IN RE the MARRIAGE OF: Maryna BRIVKA, Petitioner and Appellee,

and

Roy NAVOLYNSKI, Respondent and Appellant.

DA 18-0676

Supreme Court of Montana.

Submitted on Briefs: November 6, 2019

Decided: March 31, 2020

For Appellant: Marybeth M. Sampsel, Measure Law, P.C., Kalispell, Montana

For Appellee: Ann C. German, Attorney at Law, Libby, Montana

Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Roy Navolynski appeals from the Order Granting Temporary Maintenance and the Findings of Fact, Conclusions of Law, and Final Decree of the Nineteenth Judicial District Court, Lincoln County, dissolving Navolynski’s marriage to Maryna Brivka, distributing the parties’ marital assets and liabilities, and awarding Brivka spousal maintenance. We affirm.

¶3 Navolynski and Brivka met online in February 2010. At the time, Navolynski resided in the United States, and Brivka resided in Ukraine. On May 22, 2010, the two married in Kharkiv, Ukraine. After they married, Navolynski traveled to Ukraine five times to visit Brivka while she waited to be approved by the United States Embassy to move to the United States. Brivka moved with her then minor son from a previous marriage to the U.S. approximately eighteen months after her marriage to Navolynski.

¶4 At the time of the marriage, Navolynski owned various real property and businesses near Troy, Montana, including a house, a stone company, an antique store, and rental cabins. He also received disability payments from the Veteran Benefits Administration. Before Brivka moved to the U.S., Navolynski showed her a picture of a large red house that he represented to her they would live in.

¶5 When Brivka and her son arrived in Troy, they lived in the large red house with Navolynski, but shared the home with renters. Brivka and her son helped Navolynski construct another house on the property in addition to renovating and constructing additional rental cabins on the property. Brivka worked part-time teaching dance in the Troy schools and at a local fitness center.

¶6 Brivka petitioned the District Court for legal separation in March 2016, and Navolynski later filed for dissolution of the parties’ marriage. Brivka and her son moved to a women’s shelter for three months. She then moved to a low-income apartment and received food stamps and public assistance to pay for rent and utility bills. Through the help of Job Service Montana, Brivka attended classes to obtain her massage therapy license. Her only income came from tips she received from massage clients. Brivka, a native Russian speaker, took longer to obtain her license due to her limited understanding of the English language.

¶7 During the dissolution proceedings, Brivka moved for temporary maintenance. After a hearing on March 6, 2018, the District Court granted Brivka’s motion and awarded her a lump sum of $1,500 to pay her attorney, and temporary maintenance in the amount of $650 per month. On August 16, 2018, the case proceeded to a final hearing on the merits. In its Findings of Fact, Conclusions of Law, and Final Decree, the District Court distributed the parties’ marital assets and liabilities and awarded Brivka spousal maintenance in the amount of $1,000 per month for two years.

¶8 We review a district court’s division of marital property and award of spousal maintenance to determine whether the court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Patton v. Patton , 2015 MT 7, ¶ 18, 378 Mont. 22, 340 P.3d 1242. See also Hollamon v. Hollamon , 2018 MT 37, ¶ 7, 390 Mont. 320, 413 P.3d 460 (citing In re Marriage of Crilly , 2005 MT 311, ¶ 10, 329 Mont. 479, 124 P.3d 1151 ). "A finding is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if our review of the record convinces us that the district court made a mistake." Patton , ¶ 18 (citing Jackson v. Jackson , 2008 MT 25, ¶ 9, 341 Mont. 227, 177 P.3d 474 ).

¶9 "Absent clearly erroneous findings, we will affirm a district court’s division of property and award of maintenance unless we identify an abuse of discretion." Hollamon , ¶ 7 (quoting Crilly , ¶ 10). A district court abuses its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. Patton , ¶ 19. See also Crilly , ¶ 10 (citing In re Marriage of Kotecki , 2000 MT 254, ¶ 9, 301 Mont. 460, 10 P.3d 828 ).

¶10 A district court is vested with broad discretion to award a spouse temporary maintenance during the pendency of a dissolution proceeding and maintenance following dissolution of the marriage upon finding "the spouse seeking maintenance: (a) lacks sufficient property to provide for the spouse’s reasonable needs; and (b) is unable to be self-supporting through appropriate employment ...." Section 40-4-203(1), MCA. A party seeking temporary maintenance must first file a motion and affidavit setting forth "the factual basis for the motion, the amount requested, a list of marital estate liabilities, [and] a statement of sources of income of the parties ...." Section 40-4-121(1), MCA.

¶11 If the district court finds an award of maintenance is appropriate, the court must then determine the amount and duration of the award upon finding:

(a) the financial resources of the party seeking maintenance, including marital property apportioned to that party, and the party’s ability to meet the party’s 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 the spouse’s own needs while meeting those of the spouse seeking maintenance.

Section 40-4-203(2)(a)-(f), MCA ; see also § 40-4-121(8), MCA (providing that a court may issue an order for temporary maintenance "[o]n the basis of the showing made and in conformity with [§] 40-4-203[, MCA ] ...."). The district court does not need to make specific findings of fact on each factor as long as this Court can determine on review that the trial judge actually considered these factors. Hollamon , ¶ 12 (citing In re Marriage of Payer , 2005 MT 89, ¶ 12, 326 Mont. 459, 110 P.3d 460 ).

¶12 A district court is vested with broad discretion during the pendency of a dissolution proceeding to apportion "the property and assets belonging to either or both [spouses], however and whenever acquired" and apportion the property equitably to each party under the circumstances. Section 40-4-202, MCA ; Hollamon , ¶ 8; Hutchins v. Hutchins , 2018 MT 275, ¶ 31, 393 Mont. 283, 430 P.3d 502 ; In re Marriage of Funk , 2012 MT 14, ¶ 6, 363 Mont. 352, 270 P.3d 39 ; Crilly , ¶ 12. The statute does not require a district court to "award the parties property of precisely equal value." Hutchins , ¶ 31 (quoting In re Marriage of David , 2009 MT 422, ¶ 21, 354 Mont. 44, 221 P.3d 1209 (citation omitted)). Instead, the statute requires the court to consider:

the duration of the marriage and prior marriage of either party, 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.

Section 40-4-202(1), MCA. The district court must also consider the contributions of the other spouse to the marriage, including nonmonetary contributions such as facilitating the maintenance of the property. Section 40-4-202(1), MCA. Section 40-4-202, MCA, factors must be considered and included in the district court’s findings and conclusions. Funk , ¶ 7.

¶13 Navolynski argues the District Court erred when it awarded temporary maintenance to Brivka because she did not include her marital liabilities in her affidavit as required by § 40-4-121(1), MCA. We disagree.

¶14 Brivka’s exclusion of her...