In re Marriage of Swanson

• Decision Date: 11 May 2004
• Docket Number: No. 03-439.,03-439.
• Citation: 2004 MT 124,90 P.3d 418,321 Mont. 250
• Parties: In re the MARRIAGE OF Ronald T. SWANSON, Petitioner and Appellant, and Rennee A. Swanson, Respondent and Cross-Appellant.
• Court: Montana Supreme Court

90 P.3d 418

2004 MT 124

321 Mont. 250

In re the MARRIAGE OF Ronald T. SWANSON, Petitioner and Appellant, and

Rennee A. Swanson, Respondent and Cross-Appellant.

No. 03-439.

Supreme Court of Montana.

Submitted on Briefs November 13, 2003.

Decided May 11, 2004.

For Appellant: Chris J. Nelson, Billings, Montana.

For Respondent: Addison Sessions, Billings, Montana. Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 Ronald T. Swanson (Ronald) petitioned for dissolution of his marriage to Rennee A. Swanson (Rennee) in the Thirteenth Judicial District Court, Yellowstone County. Following a non-jury trial, the District Court entered Findings of Fact, Conclusions of Law, and Decree of Dissolution and Memorandum, dissolving the parties' marriage, distributing the couple's property and setting up a temporary maintenance award from Ronald to Rennee. Ronald appeals, and Rennee cross-appeals from the District Court's property distribution. Ronald additionally appeals from the District Court's maintenance award. Rennee additionally cross-appeals from the court's failure to award attorney fees. We affirm in part, reverse in part, and remand.

BACKGROUND

¶ 2 Ronald and Rennee married on July 16, 1993. They separated on August 27, 2001, and Ronald filed a petition for dissolution of marriage in the Thirteenth Judicial District Court, Yellowstone County, on October 19, 2001. The court held a hearing without a jury on November 15, 2002.

¶ 3 At the time of their marriage, Ronald was employed as a boilermaker and welder. He also raised cattle. At the time of trial, his annual income was approximately $37,856. The court found that Ronald's living expenses consisted of $1638 per month, determining that his net monthly income exceeded his expenses by $1517.

¶ 4 At the time of their marriage, Rennee was a waitress. At the time of trial, she was a clerk in a retail store earning approximately $10 per hour. However, she planned to move to Las Vegas, Nevada, where she estimated that her income would be approximately $7 per hour. The court found that Rennee's living expenses consisted of $1423 per month, determining that her expenses exceeded her estimated income by approximately $574.

¶ 5 Through his union and employment, Ronald had two retirement plans: Boilermakers National Annuity Trust (annuity) and Boilermaker-Blacksmith National Pension Trust (pension). Both plans were "defined contribution" plans as opposed to "defined benefit" plans. When calculating the marital value of these plans, the District Court used the "present value" method and assigned percentages to both parties as to the amounts to which they were entitled when the plans paid out. Specifically, the court found that 87.04% of the annuity plan was earned during the marriage, therefore, it calculated that Rennee was entitled to receive 43.5% of the annuity. The court found that 52.68% of the pension plan was earned during the marriage, therefore, it calculated that Rennee was entitled to receive 26.95% of the pension. Notably, the court determined that Rennee would receive the above percentages at the time Ronald started receiving his retirement benefits.

¶ 6 As part of the marital estate, the District Court included $10,880 of debt on a BankOne Visa allocated to Rennee and $1000 from the sale of Pete the Horse allocated to Ronald. However, the court excluded seven cows from the marital estate, identifying them as Ronald's premarital property.

¶ 7 As a result of the property distribution, the court found that Rennee lacked sufficient property to provide for her reasonable needs, and after considering the factors contained in § 40-4-203, MCA, it awarded her maintenance of $500 per month for a three year period. It also deemed each party responsible for their own attorney fees.

¶ 8 We restate the issues on appeal:

¶ 9 1. Whether the District Court erred when it determined the value and distribution of the marital estate.

¶ 10 2. Whether the District Court erred when it determined the maintenance award from Ronald to Rennee.

¶ 11 3. Whether the District Court erred when it did not award attorney fees to Rennee.

STANDARD OF REVIEW

¶ 12 Section 40-4-202, MCA, governs the distribution of the marital estate vesting a district court with broad discretion to apportion the marital estate in a manner which is equitable to each party under the circumstances. In re Marriage of Bee, 2002 MT 49, ¶ 34, 309 Mont. 34, ¶ 34, 43 P.3d 903, ¶ 34. We initially review a district court's division of marital property and maintenance awards to determine whether the findings of fact upon which the division is based are clearly erroneous. See In re Marriage of Gerhart, 2003 MT 292, ¶ 15, 318 Mont. 94, ¶ 15, 78 P.3d 1219, ¶ 15; In re Marriage of Haines, 2002 MT 182, ¶ 15, 311 Mont. 70, ¶ 15, 53 P.3d 378, ¶ 15. "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." In re Marriage of Steinbeisser, 2002 MT 309, ¶ 17, 313 Mont. 74, ¶ 17, 60 P.3d 441, ¶ 17. Absent clearly erroneous findings, this Court will affirm a district court's division of property unless we identify an abuse of discretion. Gerhart, ¶ 16.

¶ 13 We review a district court's award of attorney fees in a dissolution action to determine whether the court abused its discretion, whereby a district court's determination regarding such fees will not be disturbed absent an abuse of discretion. In re Marriage of Fishbaugh, 2002 MT 175, ¶ 30, 310 Mont. 519, ¶ 30, 52 P.3d 395, ¶ 30.

DISCUSSION

ISSUE ONE

¶ 14 Whether the District Court erred when it determined the value and distribution of the marital estate.

¶ 15 A district court has broad discretion to adopt any reasonable valuation of property supported by the record, Bee, ¶ 34, and this Court will not substitute its judgment for that of a trial court on such matters. In re Marriage of Oehlke, 2002 MT 79, ¶ 21, 309 Mont. 254, ¶ 21, 46 P.3d 49, ¶ 21.

¶ 16 On appeal and cross-appeal, both parties argue that the District Court erred in determining distribution of the marital estate. Specifically, Ronald challenges the court's calculation of the valuation and distribution of his two retirement funds to Rennee and the inclusion of a BankOne Visa debt as marital debt. Rennee objects to distribution to Ronald of the $1000 proceeds from the sale of Pete the Horse and the exclusion of seven cows from the marital estate. She also claims that the court incorrectly found that the parties' 1989 Ford Ranger belonged to Ronald's son.

¶ 17 As a preliminary matter, in his answer to Rennee's cross-appeal, Ronald conceded that the District Court omitted awarding the 1989 Ford Ranger to either party and agreed that it should be sold and the proceeds divided on an equal basis. Further, Ronald directs our attention to the property settlement in regards to Pete the Horse and points out that the court did include the proceeds of the sale on his side of the ledger and thus it was properly included in the marital estate. In her reply brief, Rennee concedes that proceeds from the sale of Pete the Horse were properly included in the marital estate. We therefore choose not to address these issues, and remand to the District Court with instructions to distribute the proceeds of the sale of the 1989 Ford Ranger on an equal basis.

¶ 18 We now turn to the contested issues in the Swanson's marital property distribution. First, we consider the District Court's distribution calculation of Ronald's two pension plans. In determining the percentage of the plan awarded to each party at payout, the court employed the "present value" method, as opposed to the "time rule" method, based on the fact that Ronald's plans were "defined contribution plans" and the parties presented evidence showing the value of the accounts both at time of marriage and time of divorce. As such, for the annuity account, it subtracted the value of the account on June 30, 1993, from the balance of the account on December 31, 2001, to ascertain the marital portion of the asset. It determined that the marital asset was approximately 87% of the total annuity, therefore, at payout Rennee was entitled to 43.5% of each payment. For the pension plan, the court added the yearly contributions during the marriage to determine the marital portion of the account. As a result, it determined that the marital amount was approximately 53.9% of the contributions, therefore, at payout Rennee was entitled to 26.95% of each payment.

¶ 19 Ronald claims that there is insufficient evidence in the record to support the District Court's determination of distribution of his two retirement funds. He asserts that the court should have employed the time rule method to calculate the distribution because it was impossible to reduce the plan to its present value and pay Rennee a fair share of cash representing her interest in the funds. He bases this argument on the assertion that it is impossible to tell what percentage of each plan was earned during the marriage due to the fact that he is still working and contributing to each plan. Consequently, at the time he would draw on each plan, the percentage of the respective plans earned during the marriage would be far less than the date of divorce.

¶ 20 In response, Rennee asserts that the District Court correctly determined the percentage of the accounts entitled to her at payout. She contends the time rule method has been applied by this Court when the value of the accounts are unknown either at the time of marriage or the time of divorce. Under these circumstances, relying upon In re Marriage of Truax (1995), 271 Mont. 122, 125-26, 894 P.2d 936, 938, she asserts that due to the evidence presented providing the value of the accounts at both times, the present value method is appropriate. Furthermore, she argues that the time rule...