Marriage of Laster, In re, 81-376

• Decision Date: 15 April 1982
• Docket Number: No. 81-376,81-376
• Citation: 39 St.Rep. 737,643 P.2d 597,197 Mont. 470
• Parties: In re the MARRIAGE OF Rodney LASTER, Petitioner and Appellant, and June M. Laster, Respondent and Respondent.
• Court: Montana Supreme Court

Page 597

643 P.2d 597

197 Mont. 470

In re the MARRIAGE OF Rodney LASTER, Petitioner and Appellant and June M. Laster, Respondent and Respondent.

No. 81-376.

Supreme Court of Montana.

Submitted Jan. 13, 1982.

Decided April 15, 1982.

Boschert & Boschert, Billings, Alan J. Lerner argued, Big Fork, for petitioner and appellant.

Berger, Sinclair & Nelson, James J. Sinclair argued, Billings, for respondent and respondent.

DALY, Justice.

The husband, Rodney Laster, appeals from a judgment entered by the District Court of the Thirteenth Judicial District, Yellowstone County, in which the parties' marriage was dissolved, the marital estate divided, and the wife awarded $350 per month in maintenance, as well as attorney fees and costs.

The Lasters were married for twenty-nine years. They had three children, two are now adults. The third child was severely disabled, both physically and mentally, requiring total care. The wife quit her secretarial job in 1956 to care for her disabled child, who lived to the age of ten.

The husband and wife separated in April 1979. The husband moved to Montana in December 1979 while the wife stayed in Pennsylvania.

After their separation the wife obtained a job as a floor lady in a garment shop. She is now fifty-eight years old, and her gross salary is $406.20 every two weeks.

The District Court determined that the wife's net salary is $308 every other week. In arriving at this figure the District Court subtracted from the gross salary all of the itemized deductions (federal, state and local taxes, social security and union dues) taken out of the wife's bi-weekly pay check. By multiplying $308 times twenty-six pay periods, and dividing by twelve, the District Court found that the wife's average monthly spendable income is $667.

The District Court found that the wife's monthly expenses total $806. To supplement her income, the wife has rented a mobile home owned by the parties for $165 per month.

The wife is not eligible for full retirement benefits since she began her job after the age of fifty-five. She will receive a small pension of $33.60 per month if she works until she is sixty-seven.

The husband is fifty-one years old. He has multiple sclerosis but it is in remission and there is no evidence on the record that it impairs his ability to work. The husband presently works for the federal government as an OSHA compliance officer in Billings, Montana.

The husband's gross income was $27,854 in 1981, $25,608 in 1980. The District Court found that in 1980 the husband's spendable income was $1,865 per month. The District Court arrived at this figure by deducting only the federal taxes from the husband's gross income and dividing by twelve. Unlike its determination of the wife's monthly spendable income, the District Court did not look to the monthly deductions taken out of the husband's paycheck. The District Court also found that the husband's fiancee contributes $100 per week and this additional income would serve to offset future living expenses.

In addition to supporting himself, the husband supports his fiancee and his fiancee's daughter. His monthly expenses were found to be $1,535 per month. Taking the $1,865 spendable income and subtracting the $1,535 in expenses, the District Court determined that the husband was able to pay over $300 in maintenance to the wife.

The husband has three retirement programs, two vested but not matured and one not vested. All of the payments of the first two plans were made during the parties' marriage. Under the first plan, the husband will receive $750 per month when he reaches the age of sixty. Under the second plan, the husband will receive $304 per month when he reaches the age of fifty-nine. The husband is presently contributing to a third plan which will vest in approximately five years.

Excluding the value of the husband's retirement benefits, the District Court valued the marital assets at $73,580, liabilities at $18,359.27, and net marital estate at $55,220.73. The major disputed valuations are the family home in Pennsylvania and the jewelry acquired during the marriage. Evidence of these valuations was indefinite since appraisal figures were based mostly on the personal opinions of the parties, formed through informal inquiries or reliance on amounts of insurance coverage.

Except for the retirement benefits, the District Court divided the marital property with approximately 78% to the wife and 22% to the husband. The District Court listed its reasons for such a disproportionate distribution stating that for the past three years the wife has been solely responsible for the mortgage payments on the family home and ten-acre tract. This, coupled with the length of the marriage, the devotion of the wife to the care of her disabled child, the wife's willingness to undertake employment at the age of fifty-six years and the disparity of earning capabilities, justified the distribution. To equalize this disproportionate distribution, the District Court awarded the wife a one-third share in each of the husband's retirement plans rather than the one-half share she requested.

After considering the nature of the property involved, in that the property awarded to the wife was not income producing but income reducing, the District Court found there was not sufficient property in the marital estate to provide for the reasonable needs of the wife. The District Court further found that the husband was financially able to contribute $350 per month for the support of the wife and awarded her that amount until her death, until she remarries, or until the husband retires.

The District Court further awarded the wife $541 for her expenses of traveling to Montana and staying here during the trial. Finally, the District Court found that the wife did not have sufficient funds to pay attorney fees and ordered the husband to pay $1,050 in reasonable attorney fees.

Four basic issues have been presented by the parties:

1. Whether the District Court erred in its equitable apportionment of the marital estate?

2. Whether the District Court erred in awarding maintenance to the wife?

3. Whether the District Court erred in awarding the wife a portion of the husband's retirement benefits?

4. Whether the District Court erred in awarding attorney fees and costs to the wife?

The husband raises three issues in addition to these basic four:

1. Whether the District Court erred by considering the income of the husband's fiancee in awarding maintenance to the wife.

2. Whether the husband's right to equal protection was violated by awarding the wife a share of his retirement benefits.

3. Whether the District Court's judgment is a nullity since it did not state in its findings of facts that the marriage was irretrievably broken or that one of the parties was domiciled in Montana.

The husband contends that the District Court abused its discretion because a 78%-22% property distribution is per se inequitable and because the values the District Court placed on the main marital assets were based on speculative and incompetent evidence. It should be noted that the 78%-22% proportion does not include consideration of the District Court's division of the husband's retirement benefits and is therefore misleading.

In determining whether a trial court abused its discretion, the standard for review is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In re Marriage of Creon (1981), Mont., 635 P.2d 1308, 38 St.Rep. 1828; In re Marriage of Martens (1981), Mont., 637 P.2d 523, 38 St.Rep. 2135.

The District Court's duty under section 40-4-202(1), MCA, is to consider the factors therein and then divide the property equitably. An equitable division does not necessarily mean an equal division. As has been noted many times by this Court, and most recently in Martens :

" 'Although the District Court may equally divide the marital assets, such a distribution is not mandated by section 40-4-202, MCA ... Section 40-4-202 is flexible and it vests a good deal of discretion in the District Court ... We have stated, before and after the adoption of the statute, that each case must be looked at individually, with an eye to its unique circumstances ...' (Citations omitted.) In re Marriage of Aanenson (1979), Mont., 598 P.2d 1120, 1123, 36 St.Rep. 1525." 637 P.2d at 526.

In Finding of Fact No. 17, the District Court gave extensive reasons for giving the wife 78% of the marital property: the wife has been solely responsible for mortgage payments on the family home since 1979, the length of the marriage, the devotion of the wife to her disabled child, and the great disparity in earning capability. The District Court recognized that the wife was receiving an unusually large percentage of the marital property and to equalize the situation, the District Court did not award the wife as much of the retirement benefits as she had requested. If the division of retirement benefits is considered, the wife in actuality is receiving less than 78% of the marital estate. Clearly, the District Court considered the factors listed in section 40-4-202, MCA, and used very conscientious judgment in distributing the property.

The husband next contends that the District Court did not have sufficient competent evidence to properly evaluate the marital estate. While it is true that the trial court was not given the best evidence on which to base its valuations, the District Court's determinations of values will stand unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.; In re Marriage of Creon, supra. There is nothing in the record to show that its valuations were clearly erroneous.

A District Court's award of maintenance must be made in accordance with the factors set forth in section 40-4-203, MCA. It is well established that in determining whether a spouse seeking maintenance "lacks...