In re Marriage of Olson
| Decision Date | 08 March 2005 |
| Docket Number | No. 03-684.,03-684. |
| Parties | In re the MARRIAGE OF Thomas C. OLSON, Petitioner and Appellant, and Sydney Olson, Respondent, Respondent and Cross-Appellant. |
| Court | Montana Supreme Court |
For Appellant: William J. O'Connor II, O'Connor and O'Connor, Billings, Montana.
For Respondent: Calvin J. Stacey, Stacey & Funyak, Billings, Montana.
¶ 1 Thomas C. Olson (Thomas) appeals from the order entered by the Thirteenth Judicial District Court, Yellowstone County, denying his motion to modify the maintenance agreement entered pursuant to the dissolution of the marriage with his former wife, Sydney Olson (Sydney). We affirm.
¶ 2 We address the following issues on appeal:
¶ 3 Did the District Court abuse its discretion in concluding that Thomas failed to meet his burden of establishing that the original maintenance agreement was unconscionable?
¶ 4 Did the District Court err in failing to hold a hearing and consider appropriate factors in awarding Sydney attorney fees?
¶ 5 Thomas and Sydney were married in 1964 and subsequently divorced in 1988. Upon dissolution of their marriage, they entered into a Property Settlement Agreement (Agreement) which included a maintenance provision stating as follows:
Prior to signing the agreement, the parties crossed out the word "cohabitation" in both places where it occurs in this provision and initialed these changes, thus eliminating cohabitation as an event which would immediately terminate the maintenance payments. The agreement was then approved in that form by the District Court on November 23, 1988.
¶ 6 In 1993, Sydney began to cohabit with Jack Lamb (Jack) and has continuously cohabited with him since that time.
¶ 7 On October 18, 2002, Thomas filed a motion to modify maintenance, requesting that the District Court terminate his monthly payment obligation because Sydney's financial circumstances changed for the better, and because her relationship with Jack was essentially "like a marriage in every way other than the legal solemnization of signing a marriage license."
¶ 8 On September 4, 2003, the District Court issued its order denying Thomas's motion for modification and awarding $750.00 to Sydney for attorney fees and costs incurred. Judgment was entered on September 23, 2003. Thereafter, Thomas filed an appeal therefrom, and Sydney filed a cross-appeal, contending that the District Court should have awarded her a larger sum to cover her attorney fees and expenses.
¶ 9 We apply a clearly erroneous standard in reviewing a district court's findings of fact regarding maintenance modification. In re Marriage of Schmieding, 2003 MT 246, ¶ 14, 317 Mont. 320, ¶ 14, 77 P.3d 216, ¶ 14. Findings are clearly erroneous if they are not supported by substantial evidence, if the district court misapprehends the effect of the evidence, or if our review of the record convinces us a mistake has been committed. In re Marriage of Brown (1997), 283 Mont. 269, 272, 940 P.2d 122, 124. We review a district court's conclusions of law to determine whether they are correct. In re Marriage of Bartsch, 2004 MT 99, ¶ 13, 321 Mont. 28, ¶ 13, 88 P.3d 1263, ¶ 13.
¶ 10 We review a district court's determinations regarding substantial and continuing changed circumstances and unconscionability for an abuse of discretion. Schmieding, ¶ 14. 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. Schmieding, ¶ 14.
¶ 11 Did the District Court abuse its discretion in concluding that Thomas failed to meet his burden of establishing that the original maintenance agreement was unconscionable?
¶ 12 The Montana Legislature has set forth the standards for modification of maintenance agreements in § 40-4-208, MCA, which provides in pertinent part:
(Emphasis added.) Section 40-4-208, MCA, does not define the term "unconscionable," and we have declined to create a definition. Brown, 283 Mont. at 272, 940 P.2d at 123. Instead, our interpretation of unconscionability is made subject to the underlying facts on a case-by-case basis. Schmieding, ¶ 36.
¶ 13 Thomas argues that it is unconscionable to continue the allowance of maintenance payments to Sydney because: (1) she is able to meet her own financial needs and to support herself; (2) Sydney has a bachelor's degree and therefore has the ability to be employed; (3) Sydney cohabits with Jack who pays the mortgage on the home and makes all other substantial household payments; (4) Sydney owns extensive investment properties; (5) upon Jack's death, Sydney will inherit the home in which they currently cohabit; and (6) for all "practical purposes," Sydney has entered into a de facto marriage with Jack. In sum, Thomas contends that Sydney has been living a lifestyle of leisure, is essentially "married" to Jack, and that maintenance is therefore no longer necessary due to these changed circumstances. Thomas urges this Court to apply its equitable powers to "do justice" and terminate the maintenance payments.
¶ 14 Sydney responds by arguing that Thomas failed to introduce evidence to show a substantial change in circumstances so as to make the terms of the maintenance agreement unconscionable. Sydney contends that her circumstances have essentially remained the same for several years, with the exception that she is now sixty-years old, and it would therefore be more difficult for her to obtain employment. Sydney notes that she is not remarried and is spending all of the maintenance received on the "necessities of life." Sydney argues that, contrary to Thomas's arguments, it is Thomas's situation that recently changed when he voluntarily decided to "slow down at work" in preparation for retirement so that he could "enjoy life." However, Sydney argues that none of these circumstances justify a modification of the maintenance award since Thomas is in good health and could return to work on a full-time basis.
¶ 15 It is undisputed that the parties voluntarily entered into the Agreement in 1988. The parties specifically considered and deleted the cohabitation provision from the Agreement. Additionally, the parties agreed that maintenance would continue until Thomas reached the age of sixty-five, at which time the District Court would re-evaluate the maintenance provisions. Hence, cohabitation, by itself, may not be asserted as an event terminating maintenance in this case. Therefore, Thomas's de facto marriage argument fails because it is uncontested that neither a...
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