IN RE MARRIAGE OF HARKIN, 99-080.

• Decision Date: 27 April 2000
• Docket Number: No. 99-080.,99-080.
• Citation: 2000 MT 105,999 P.2d 969
• Parties: IN RE the MARRIAGE OF Linda K. HARKIN, Petitioner and Respondent, and John E. Harkin, Respondent and Appellant.
• Court: Montana Supreme Court

999 P.2d 969

2000 MT 105

IN RE the MARRIAGE OF Linda K. HARKIN, Petitioner and Respondent, and

John E. Harkin, Respondent and Appellant.

No. 99-080.

Supreme Court of Montana.

Submitted on Briefs November 18, 1999.

Decided April 27, 2000.

P. Mars Scott and Patrick G. Sandefur, Mulroney, Delaney & Scott, Missoula, Montana, for Appellant.

David L. Astle, Astle & Astle, Kalispell, Montana, for Respondent.

Justice JIM REGNIER delivered the Opinion of the Court.

¶ 1 John E. Harkin appeals the Findings of Fact, Conclusions of Law, and Decree of Dissolution entered by the Eleventh Judicial District Court, Flathead County. We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

¶ 2 This appeal raises the following issues:

¶ 3 1. Whether the District Court erred in entering a Qualified Domestic Relations Order?

¶ 4 2. Whether the District Court erred in dividing the marital estate?

¶ 5 3. Whether the District Court erred in awarding maintenance?

¶ 6 4. Whether the District Court erred in awarding attorney fees?

FACTUAL BACKGROUND

¶ 7 The Respondent and Appellant, John E. Harkin ("Jack"), and the Petitioner and Respondent, Linda K. Harkin ("Linda"), were married on August 25, 1973, in Illinois. Jack and Linda have four children, two of whom were minors and living with Linda at the time of trial.

¶ 8 At the time Jack and Linda were married, both parties worked for Delta Airlines. Jack worked as a pilot from 1964 until health problems which began in January 1996 prevented him from continuing to work. It is unlikely that Jack can be gainfully employed in the future. Just prior to leaving Delta, Jack was earning approximately $230,000 per year. Linda worked for Delta as a flight attendant from 1964 until 1979 when she quit to raise the couple's children.

¶ 9 Jack stopped receiving regular pay from Delta in January 1996 after he was hospitalized with health problems. As a result of his hospitalization, he received sick leave at his full regular pay for the first few months of 1996. From April through July of 1996, Jack received short-term disability and supplemental pay which amounted to approximately 90 percent of his normal pay. Coincidentally, at this same time Delta was offering early retirement benefits to qualifying pilots. Jack elected early retirement and, as a result, his disability pay terminated as of the date of election, August 1, 1996.

¶ 10 On April 30, 1996, Linda filed a Petition for Legal Separation. On September 5, 1996, the court issued a Qualified Domestic Relations Order ("QDRO") regarding the distribution of Jack's retirement fund. Delta did not accept this QDRO. On September 20, 1996, Jack sent a letter to Delta revoking his retirement election until he received a divorce. However, he requested that Delta not interfere in any way with Linda's portion of the benefits. In the meantime, neither Linda nor Jack was receiving income. On December 18, 1996, in the absence of Judge Curtis, the judge presiding over the Harkins' dissolution, Judge Ted O. Lympus issued a second QDRO for the purpose of providing Linda with a source of income.

¶ 11 Pursuant to the second QDRO, the court awarded Linda 35.385 percent of Jack's Delta retirement benefits. Upon approval by Delta, Linda received a lump sum benefit in the amount of approximately $419,000 and began receiving monthly payments of approximately $2700 in January 1997. Linda's lump sum payment was paid entirely from qualified, tax-deferrable funds. There is a $765,118 lump sum payment and $5467 monthly payment remaining available to Jack from his retirement fund pursuant to the second QDRO. However, he will not receive as high a share of the qualified, tax-deferrable funds as Linda received because of Delta's policy of distributing qualified funds on a first-come, first-serve basis.

¶ 12 Jack filed for bankruptcy in approximately February 1997. Linda did not file with him. On October 17, 1997, the District Court entered Findings of Fact, Conclusions of Law, and Order concerning temporary child support and maintenance. The court held a nonjury trial on May 11 and 12, 1998. On September 1, 1998, the court issued Findings of Fact, Conclusions of Law, and Decree of Dissolution. Jack filed a Motion and Brief to Alter and/or Amend Judgment on September 11, 1998. On October 27, 1998, the court entered its Order and Rationale on Motion to Alter and Amend, essentially affirming its previous decree. Jack appeals from the court's decree of dissolution as well as its Order and Rationale on Motion to Alter and Amend.

ISSUE ONE

¶ 13 Whether the District Court erred in entering the Qualified Domestic Relations Order?

¶ 14 In April 1996, as a result of Jack's heart attack and other health problems, Jack began receiving disability compensation from a combination of sources connected with his employment by Delta. Prior to July 30, 1996, Jack had to decide whether to elect to continue on long-term disability, which would have paid him approximately $124,000 per year with additional benefits, or to participate in the Delta Air Lines early retirement program. Jack elected to participate in the early retirement program, submitting his application for early retirement to be effective August 1, 1996. This application resulted in the cessation of disability benefits.

¶ 15 On September 5, 1996, the District Court issued a QDRO to provide Linda with a portion of Jack's Delta retirement benefits. Delta rejected the initial QDRO. On September 20, 1996, Jack sent a letter to Delta directing Delta to defer his retirement benefits until after his marriage was dissolved. This choice had the effect of leaving the Harkin family with no income as Jack was not receiving either disability or retirement benefits. Linda was without income from September through December 1996.

¶ 16 On December 18, 1996, in the absence of Judge Curtis, the judge presiding over the Harkins' dissolution, Judge Ted O. Lympus, entered another QDRO for the purpose of providing Linda with a source of income. George Best, Jack's attorney at the time, testified that Linda's attorney presented a proposed QDRO to Judge Lympus which Mr. Best had previously read. Mr. Best also testified that he informed Judge Lympus that the terms of the proposed QDRO had been agreed upon.

¶ 17 Jack contends that the District Court erred as a matter of law by entering the QDRO dated December 18, 1996. Jack asserts that the court was without authority to enter the order because the parties did not stipulate to the entry of the order in writing nor was a stipulation on record in open court. Jack claims that the finding that the QDRO was entered with the acknowledgment and agreement of counsel for both parties is without support, and therefore, clearly erroneous. Linda asserts that Jack's attorney at the time, George Best, testified that when Linda's counsel presented the QDRO to the court, Mr. Best informed the court that he approved of the entry of the QDRO.

¶ 18 In In re Marriage of Simms (1994), 264 Mont. 317, 871 P.2d 899, we set forth the rules applicable to agreements regarding the division of marital property. We stated:

In the case of stipulations and agreements regarding the division of marital property and maintenance, those agreements, to be binding upon the district court, must be reduced to writing and must be found by the court to be not unconscionable.

Simms, 264 Mont. at 325, 871 P.2d at 904.

¶ 19 Pursuant to Simms, the District Court had the authority to enforce a written agreement between the Harkins concerning the division of marital property if it found that agreement not to be unconscionable. While the agreement appears to have been reduced to writing, Linda has not directed us to a specific finding of conscionability. However, the District Court also had the authority to enforce the QDRO if it applied the criteria under § 40-4-202, MCA, governing the division of a marital estate, and entered appropriate findings of fact and conclusions of law. See Simms, 264 Mont. at 325, 871 P.2d at 904.

¶ 20 The court considered the statutory criteria and entered appropriate findings of fact and conclusions of law regarding the distribution of Jack's retirement benefits. Section 40-4-202, MCA, requires the court to equitably apportion the marital estate. In apportioning the marital estate, the court shall:

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. 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.

Section 40-4-202(1), MCA.

¶ 21 Regarding the division of the marital estate, including Jack's retirement benefits, the District Court found that "the distribution of the retirement benefits as set forth in the QDRO . . . represents a fair and equitable distribution of the marital estate" given the factors set forth in § 40-4-202, MCA. The court also made findings regarding those factors, including findings concerning the duration of the Harkins' marriage, Linda's occupation, sources of income, employability, and needs.

¶ 22 Accordingly, we conclude that the District Court was authorized to enter the QDRO because it entered the appropriate findings of fact and conclusions of law given the statutory criteria contained in § 40-4-202, MCA.

ISSUE TWO

¶ 23 Whether the District Court erred in dividing the marital estate?

¶ 24 We review a district court's division of marital property to determine whether the findings upon which the court relied are clearly erroneous and whether the court correctly applied the...