In re Marriage of Schmieding

• Decision Date: 18 September 2003
• Docket Number: No. 01-805.,01-805.
• Citation: 77 P.3d 216,2003 MT 246,317 Mont. 320
• Parties: In re the MARRIAGE OF Jennifer L. SCHMIEDING, Petitioner and Respondent, and Peter J. Schmieding, Respondent and Appellant.
• Court: Montana Supreme Court

77 P.3d 216

2003 MT 246

317 Mont. 320

In re the MARRIAGE OF Jennifer L. SCHMIEDING, Petitioner and Respondent, and

Peter J. Schmieding, Respondent and Appellant.

No. 01-805.

Supreme Court of Montana.

Submitted on Briefs May 23, 2002.

Decided September 18, 2003.

For Appellant: Richard J. Dolan, Goetz, Gallik, Baldwin & Dolan, P.C., Bozeman, Montana.

For Respondent: Edmund P. Sedivy, Jr., Sedivy, White & White, P.C., Bozeman, Montana.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Peter J. Schmieding (Peter) appeals from the Findings of Fact, Conclusions of Law, and Final Order entered by the Eighteenth Judicial District Court, Gallatin County, ordering him to pay Jennifer L. Schmieding (Jennifer) unpaid past and future maintenance, denying Peter's request for reimbursement of expenses associated with the parties' two marital residences, and awarding Jennifer attorney fees. We affirm in part, reverse in part, and remand.

¶ 2 Peter raises three issues on appeal which we rephrase as follows:

¶ 3 1. Did the District Court err in awarding Jennifer maintenance for the months of April through October 1999?

¶ 4 2. Did the District Court err in denying Peter's motion for reimbursement of expenses associated with the parties' Big Sky and Hayrake Lane homes?

¶ 5 3. Did the District Court err in modifying its original maintenance award, granting Jennifer future maintenance?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 This is the second appeal stemming from the dissolution of Jennifer and Peter's marriage. Extensive facts regarding earlier stages of the dissolution proceeding are set forth at In re the Marriage of Schmieding, 2000 MT 237, 301 Mont. 336, 9 P.3d 52, and, with the exception of relevant details, are not repeated here.

¶ 7 Jennifer and Peter's marriage was dissolved by court decree on August 25, 1999. On April 6, 1999, the District Court had entered Findings of Fact, Conclusions of Law, and an Order, granting dissolution of the marriage and providing for the distribution of the marital estate, including distribution of Peter's dental practice to Peter. Additionally, the court ordered that certain marital properties were to be sold, and required Peter to pay Jennifer maintenance in the amount of $3,000 per month beginning April 1999 and terminating upon Jennifer's death or remarriage, or upon her receipt of one-half of the proceeds from the anticipated sale of three assets the parties' home in Big Sky, Montana, its net worth approximately $490,000; their home on Hayrake Lane in Bozeman, Montana, its estimated net value at $535,000; and the parties' business interest in Hardwood Building, Inc., valued at $19,578 and for which Jennifer received her one-half interest in August 1999. Pursuant to the court's April 1999 Findings of Fact and Conclusions of Law, which were amended in June 1999 and incorporated into the decree, Peter was to pay the monthly mortgage and tax obligations on the Big Sky and Hayrake homes and would receive credit for all mortgage and maintenance expenses, less rent received, as a cost of sale prior to distribution of the proceeds.

¶ 8 Peter sold the Big Sky and Hayrake homes on or about May 3, 1999, and deposited the funds in a joint bank account on May 5, 1999. Both parties' signatures were required to withdraw funds from the account and Peter and Jennifer each withdrew $35,000 for personal use during the period in which the account was open. Funds were also withdrawn during this time to pay a number of bills, including a joint tax bill and a joint accounting bill, as well as several expenses associated with the construction of the Hayrake home. Also, and despite Jennifer's objection at the time to the payment, the parties withdrew $102,500 from the account in order to repay money loaned by Peter's mother for construction of the Hayrake residence. However, the repayment of the loan to Peter's mother is not an issue on appeal.

¶ 9 After selling the homes and depositing the proceeds in the joint account, Peter made no additional maintenance payments to Jennifer. The joint account was closed on October 19, 1999, with Jennifer and Peter each receiving one-half of the remaining funds in the account, totaling $341,469.93 each, on October 21, 1999.

¶ 10 In June 2000 Jennifer brought a motion before the District Court to restore and modify the maintenance award, for contempt, and for enforcement of the maintenance award. This motion was the result of a disagreement between the parties about whether Peter owed maintenance to Jennifer after May 5, 1999-the date the sale proceeds from the Big Sky and Hayrake homes were deposited in the joint account. Peter cross-moved the District Court for reimbursement of certain expenditures he made in connection with the Big Sky and Hayrake homes, which Jennifer opposed.

¶ 11 A bench trial was held on October 2, 2000. Regarding his claim for reimbursement, Peter testified that after his separation from Jennifer, he paid all of his business and personal expenses, including expenses for the construction of the Hayrake home, from a bank account containing marital funds commingled with the proceeds from his dental practice.

¶ 12 Jennifer introduced evidence that she needed $8,836.25 per month to cover her monthly expenses, that she was $2,438.78 short each month, and that this deficit forced her to liquidate some of the marital assets she received in the dissolution. Jennifer explained that her money shortage was due to the trial court's over-estimation of the value of the parties' Big Sky and Hayrake homes which were sold pursuant to the court's April 1999 order.

¶ 13 In June 2001, the District Court entered Findings of Fact and Conclusions of Law which determined that Jennifer and the parties' three children indeed had a monthly income need of $8,836.25 per month and were $2,010 short in meeting their monthly needs. Based on this finding, the District Court awarded Jennifer future maintenance in the amount of $2,010 per month, retroactive to June 2000. The District Court further ordered Peter to pay Jennifer unpaid maintenance for the months of April through October 1999 for a total of $18,204, plus interest. The court, however, found "no basis to interfere" with regard to Peter's request for reimbursement of expenses associated with the sale of the parties' Big Sky and Hayrake homes, implicitly denying Peter's motion for reimbursement. Peter appeals.

STANDARD OF REVIEW

¶ 14 While we apply a clearly erroneous standard in reviewing a district court's findings of fact regarding maintenance modification, we review a district court's determinations regarding substantial and continuing changed circumstances and unconscionability for an abuse of discretion. In re Marriage of Brown (1997), 283 Mont. 269, 272, 940 P.2d 122, 124; In re Marriage of Jarussi, 1998 MT 272, ¶ 7, 291 Mont. 371, ¶ 7, 968 P.2d 720, ¶ 7. Findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court's review of the record convinces it a mistake has been made. In re Marriage of Brown, 283 Mont. at 272, 940 P.2d at 122; In re Marriage of Toavs, 2002 MT 230, ¶ 23, 311 Mont. 455, ¶ 23, 56 P.3d 356, ¶ 23. The test for an abuse of discretion is whether the trial judge acted arbitrarily without employment of conscientious judgment or has exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Toavs, ¶ 23. We review a trial court's conclusions of law to determine whether they are correct. In re Marriage of Moss, 1999 MT 62, ¶ 13, 293 Mont. 500, ¶ 13, 977 P.2d 322, ¶ 13.

¶ 15 Finally, we note that while In re Marriage of Jarussi and other cases cited herein concern modification of child support obligations and not maintenance, the standards governing modification of both types of cases are the same. In re Marriage of Brown, 283 Mont. at 272, 940 P.2d at 124.

DISCUSSION

¶ 16 Did the District Court err in awarding Jennifer maintenance for the months of April through October 1999?

¶ 17 Peter argues the District Court erred in awarding Jennifer maintenance for the months of April through October 1999. Noting that the court ordered him to pay maintenance to Jennifer only until she received her one-half share of the proceeds from the sale of the parties' Big Sky and Hayrake homes and the Hardwood building business interest, Peter contends Jennifer had full access to the sale proceeds beginning May 5, 1999. Therefore, he argues that Jennifer was not entitled to receive maintenance after that date.

¶ 18 In response, Jennifer points out that she did not actually receive her full one-half share of the sale proceeds until October 21, 1999, when the joint account was closed and the money finally distributed. She further asserts that the amount she ultimately did receive, $341,469.93, was $145,530 less than the trial court originally estimated. Consequently, argues Jennifer, by the time she filed her motion to modify and restore maintenance, she was considerably short in meeting her monthly expenses.

¶ 19 The District Court indeed found that Jennifer received no maintenance payments from Peter after the Big Sky and Hayrake homes were sold. Taking judicial notice of its April 1999 Findings of Fact and Conclusions of Law, the court concluded that Peter owed Jennifer unpaid maintenance for the period of April to October 1999. The April 1999 Findings of Fact and Conclusions of Law provide in relevant part:

Peter shall pay to Jennifer as monthly maintenance, the sum of $3,000 per month until she remarries or is deceased, or when she receives one-half (½) of the proceeds from the sale of the Big Sky home, Hayrake home, and Hardwood Building, Inc. business.

(Emphasis added.)

¶ 20 We have previously held that awards of maintenance are within the broad discretion of the district court. In re Marriage of Burris (1993), 258 Mont. 265, 270, 852 P.2d 616, 619. We do not disturb a district...