Marriage of Johnsrud, In re

• Decision Date: 29 November 1977
• Docket Number: No. 13560,13560
• Citation: 181 Mont. 544,34 St.Rep. 1417,572 P.2d 902
• Parties: In re the MARRIAGE OF Donald JOHNSRUD, Petitioner and Respondent, and Jeanette I. Johnsrud, Respondent and Appellant.
• Court: Montana Supreme Court

Page 902

572 P.2d 902

181 Mont. 544

In re the MARRIAGE OF Donald JOHNSRUD, Petitioner and Respondent,

and

Jeanette I. Johnsrud, Respondent and Appellant.

No. 13560.

Supreme Court of Montana.

Nov. 29, 1977.

Rehearing Denied Jan. 11, 1978.

Marra, Wenz & Iwen, Great Falls, Joseph R. Marra (argued), Great Falls, for respondent and appellant.

Morrison, Ettien & Barron, Havre, Van H. Barron (argued), Havre, for petitioner and respondent.

SHEA, Justice.

Jeanette I. Johnsrud, former wife of Donald L. Johnsrud, appeals from an order of the Hill County District Court, awarding her $250 a month maintenance in the decree of dissolution of the parties' marriage.

The parties were married January 24, 1958. They have three children: Donald Larry, born October 6, 1960; Steven Paul, born April 2, 1963; and Cynthia Lynn, born May 17, 1966. At the time the parties married, the wife was 16 years old. She did not graduate from high school but later obtained a high school equivalency certificate. She had not been employed outside the home during the marriage. Each month, the husband gave the wife funds to pay for groceries, utilities and clothing. At the time of separation, she had been receiving $556 a month plus occasional supplements. In addition, the husband paid the house payments, car expenses including insurance, and bills for his own clothes.

The parties accumulated approximately $248,800 in assets during their marriage, with liabilities at the time of trial of approximately.$40,800.

In its decree of dissolution of marriage dated July 28, 1976, the District Court decreed custody of the older son to the husband and the two younger children to the wife. The court ordered the husband to pay $150 a month child support for each of the two children in the wife's custody until each child reached majority or graduated from high school, whichever occurred first. The court awarded the wife the following property totaling $80,400 in value:

                Family residence                 $53,900
                Household furnishings, fixtures
                 and appliances                   15,000
                1976 Pacer automobile              5,000
                Two snowmobiles                    1,500
                Cash                               5,000
                                                 -------
                                                 $80,400
                

The court awarded all other property to the husband, including $129,000 in corporate and other business interests. The court also ordered the husband to assume all liabilities, which included the monthly house payments of $169.00. It appears, however, in the court's findings that the house payments were somehow considered as maintenance, to terminate upon the wife's remarriage. The court found the husband's average net salary was $22,350 for the years 1971 through 1974, and that this income for succeeding years "should equal or exceed his average annual income for the 1971-1974 period." The court awarded monthly maintenance to the wife in the amount of $250, to be reviewed in five years.

The wife appeals primarily from the award of maintenance, but also questions the source of funds to be used for child support, and contends the District Court improperly denied attorney fees.

The wife contends the husband cannot use as a source of child support payments a $30,000 trust set up for the children under the Uniform Gifts to Minors Act. However, there appears to be no dispute on this matter. The husband agrees this trust was set up for incidental future expenses such as higher education and claims he does not intend to use it for present child support payments. Furthermore, the District Court in its findings of fact recognized the child support would come from the husband's income and not from any trust fund set up for future educational needs of the children. It is clear this trust fund will not be used for present child support obligations.

As to maintenance, the wife contends the court erred in determining the amount of maintenance, and that it awarded rehabilitative maintenance where it should have awarded permanent maintenance.

The disposition of marital property and the right to maintenance are closely related under the Uniform Marriage and Divorce Act, which became effective in Montana on January 1, 1976. Section 48-321, R.C.M.1947, states:

"Disposition of property. (1) In a proceeding for dissolution of a marriage, legal separation, or disposition of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both however and whenever acquired, and whether the title thereto is in the name of the husband or wife or both. In making apportionment the court shall consider the duration of the marriage, and prior marriage of either party, antenuptial agreement of the parties, 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. In disposing of property acquired prior to the marriage; property acquired by gift, bequest, devise or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including the nonmonetary contribution of a homemaker; the extent to which such contributions have facilitated the maintenance of this property and whether or not the property disposition serves as an alternative to maintenance arrangements.

"(2) In a proceeding, the court may protect and promote the best interests of the children by setting aside a portion of the jointly and separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent children of the parties." (Emphasis added.)

The maintenance provision, section 48-322, R.C.M.1947, states:

"Maintenance. (1) In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:

"(a) lacks sufficient property to provide for his reasonable needs, and

"(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

"(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:

"(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

"(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

"(c) the standard of living established during the marriage;

"(d) the duration of the marriage;

"(e) the age, and the physical and emotional condition of the spouse seeking maintenance; and

"(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance." (Emphasis added.)

The comments of the code commissioners to these statutes indicate the property division statute and maintenance statute must be read together because they have a dual purpose. In 9 Uniform Law Annotated, Marriage and Divorce Act, § 308, p. 494, the comment under the maintenance section states in part:

" * * * The dual intention of this section (maintenance) and Section 307 (property disposition) is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills and interests or is occupied with child care may an award of maintenance be ordered." (Paraphrased material added.)

We conclude, therefore, it is the first duty of the District Court to equitably distribute the marital property. After the court makes a decision on property division, then any additional needs of a spouse petitioning for maintenance should be readily apparent. If these future needs cannot be met by a property distribution,...