In re Marriage of Payer, 04-589.

• Docket Nº: No. 04-589.
• Citation: 326 Mont. 459, 2005 MT 89, 110 P.3d 460
• Case Date: April 12, 2005
• Court: United States State Supreme Court of Montana

110 P.3d 460
2005 MT 89
326 Mont. 459

In re The MARRIAGE OF Nicki Lynn PAYER, Petitioner and Respondent, and
Jackson Jerome Payer, Jr., Respondent and Appellant

No. 04-589.

Supreme Court of Montana.

Submitted on Briefs March 23, 2005.

Decided April 12, 2005.

110 P.3d 461

For Appellant: Nancy G. Schwartz, LaRance, Syth & Schwartz, Billings, Montana

For Respondent: George T. Radovich, Billings, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Appellant Jackson Payer (Jackson) appeals from an amended order entered by the Sixteenth Judicial District Court, Rosebud County, awarding maintenance to his former spouse, Nicki Payer (Nicki). We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Whether the District Court erred by awarding Nicki maintenance before determining the value of the marital estate.

¶ 4 2. Whether the District Court erred in determining Jackson's income for purposes of calculating Nicki's maintenance.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 Jackson and Nicki were married on July 31, 1976, in Deer Lodge, Montana. The parties separated in March 2003 and on May 2, 2003, Nicki filed a petition for legal separation and later dissolution in the Thirteenth Judicial District Court, Yellowstone County. The parties later changed venue to the Sixteenth Judicial District Court, Rosebud County.

¶ 6 Jackson owns a business providing heating, ventilation and air conditioning services. He purchased a van for use in his business in 2002 and deducted the entire cost of the van from his gross income pursuant to § 179 of the Internal Revenue Code (Section 179). At the time of trial, Jackson suffered an injury while working that limited his ability to perform rudimentary tasks and prompted him to hire an employee to execute the necessary physical work until he recovered from his injuries.

¶ 7 Nicki is unemployed, but she receives Social Security disability payments stemming from an illness that she contracted at age 14. Nicki's illness has necessitated 20 surgeries and limited the type and extent of work that she can perform as well as the schooling that she can complete. The Social Security Administration periodically reviews her medical condition as it relates to her ability to work and has never found her fit to work. Nicki remains disabled.

¶ 8 The District Court held a proceeding and entered its Findings of Fact, Conclusions of Law and Decree of Dissolution of Marriage on May 25, 2004, awarding Nicki spousal maintenance in the amount of $1100 and a percentage of the marital estate. Jackson filed a motion to alter or amend the court's judgment, contending the court erred by

110 P.3d 462

adding income deductions from his business in its valuation of marital assets and thereby awarding Nicki a disproportionate share of the marital estate in addition to maintenance. The District Court issued its amended order on July 26, 2004, finding that it incorrectly had added the entire amount of Jackson's business deductions for purposes of calculating the marital estate. The court accordingly reduced Nicki's maintenance award to $735, but did not reapportion the marital estate. This appeal follows

STANDARD OF REVIEW

¶ 9 We 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 proves clearly erroneous. In re Marriage of Lee (1997), 282 Mont. 410, 417, 938 P.2d 650, 654. A district court's findings prove clearly erroneous if they are not supported by substantial evidence, if the court misapprehended the effect of evidence, or if our review of the record convinces us that the 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 and award of maintenance unless we identify an abuse of discretion. In re Marriage of Gerhart, 2003 MT 292, ¶ 16, 318 Mont. 94, ¶ 16, 78 P.3d 1219, ¶ 16. A district court may award maintenance after marital property has been divided equitably pursuant to § 40-4-202, MCA, and the court properly has applied the criteria of § 40-4-203, MCA. In re Marriage of Weed (1992), 254 Mont. 162, 168, 836 P.2d 591, 594.

DISCUSSION

¶ 10 Whether the District Court erred by awarding Nicki maintenance before determining the value of the marital estate.

¶ 11 Jackson argues on appeal that the District Court erred in awarding Nicki maintenance before determining an equitable division of the marital estate. Jackson also contends that the court reduced the value of the marital estate in its amended findings, but declined to adjust the equitable division of the estate. Finally, Jackson alleges that Nicki failed to prove that she was entitled to maintenance and that he was able to pay.

¶ 12 A district court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance lacks sufficient property to provide for his reasonable needs and proves unable to support himself through appropriate employment. Section 40-4-203(1)(a-b), MCA. The district court's maintenance order shall consider, among other...