Marriage of Lee, In re

• Decision Date: 13 May 1997
• Docket Number: No. 96-253,96-253
• Parties: In re the MARRIAGE OF Shawn LEE, Petitioner and Respondent, and Lisa Kerry Lee, Respondent and Appellant.
• Court: Montana Supreme Court

Page 650

938 P.2d 650

282 Mont. 410

In re the MARRIAGE OF Shawn LEE, Petitioner and Respondent,

and

Lisa Kerry Lee, Respondent and Appellant.

No. 96-253.

Supreme Court of Montana.

Submitted on Briefs April 4, 1997.

Decided May 13, 1997.

Richard A. Reep, Reep, Spoon & Gordon, Missoula, for Appellant.

Richard R. Buley, Tipp & Buley, Missoula, for Respondent.

TURNAGE, Chief Justice.

Shawn Lee and Lisa Kerry Lee were divorced in 1996. Lisa appeals from the findings, conclusions, decree of dissolution, and other rulings of the Twenty-First Judicial District Court, Ravalli County. We affirm.

Lisa raises eight issues on appeal, which we restate as follows:

1. Did the District Court err when it modified its temporary maintenance order?

2. Did the District Court err when it awarded maintenance of $100 a year to Lisa?

3. Did the District Court err when it ordered returned an issued writ of execution?

4. Did the District Court err when it did not consider Shawn's failure to carry health insurance for Lisa?

5. Did the District Court err when it valued Shawn's veterinary practice?

6. Did the District Court err when it did not consider Lisa's contribution of premarital property and inherited funds?

7. Did the District Court err when it refused to hear Lisa's testimony as an expert witness concerning the value of the clinic?

8. Did the District Court err when it failed to award Lisa attorney fees?

BACKGROUND

Shawn and Lisa were married in 1985. At the time of their marriage, neither party owned any significant assets. No children were born of the marriage.

Lisa obtained a Bachelor of Arts degree in radio/television advertising management in 1983 and worked full-time until 1987, when she quit due to job-related stress. Lisa suffers from health problems but maintains an active lifestyle and full-time employment. Following the parties' separation, Lisa was employed by a veterinary clinic earning $1,600 per month. She applied to law school in 1995 but was not admitted.

Shawn obtained a Bachelor of Science degree in 1986 and his doctorate in veterinary Between 1986 and 1988, Lisa received $45,000 from her grandmother's estate, which was deposited in a joint account in the names of Lisa, her mother, and her brother. The inheritance was apparently spent for the joint living expenses of Shawn and Lisa. From 1984 to 1993, Shawn and Lisa reported total taxable incomes of $103,462 and $101,111 to the IRS.

medicine in 1990 from Washington State University. He financed his education with loans, in his name only, that totaled $61,500. From 1983 to 1996, he also obtained a total of $50,000 from his parents. No promissory notes were executed for these funds, and no interest or specific repayment plan was discussed.

In 1993, the parties moved to Hamilton, Montana, to establish the Montana Large Animal Veterinary Clinic, obtaining a $108,000 SBA loan and a $30,000 unsecured loan to open the clinic. The SBA loan is a joint loan between Shawn and Lisa and is guaranteed by Shawn's parents. The other loan is personal to Shawn. Eighty-four thousand dollars is still owed on the SBA loan.

Shawn and Lisa opened the clinic in 1993. They projected their first-year income at $120,000, which was exceeded by $10,000, but they underestimated their expenses. Although their business plan projected a break-even first year after a $30,000 salary, the Lees suffered a loss of over $18,000 with no salary. The parties offered conflicting evidence regarding Lisa's involvement with the clinic. Shawn acknowledged that Lisa attempted to promote the clinic among horse owners and performed bookkeeping and office functions, but denied that she played a significant role as a veterinary assistant as originally planned.

In 1994, Shawn petitioned for dissolution of marriage. Lisa requested temporary maintenance of $4,800 per month, based on her ordinary living expenses established during the marriage. The court awarded her $1,500 per month in temporary maintenance and $175 per month for the care of the parties' horses. On March 28, 1995, the District Court issued a writ of execution in favor of Lisa for unpaid maintenance, but then the court ordered the writ returned. Shawn moved to modify temporary maintenance due to insufficient income.

After Shawn failed to make any substantial maintenance payments, a contempt hearing was held. The court ordered Shawn incarcerated for one day and allowed him twenty days to bring temporary maintenance into compliance. On July 11, 1995, the District Court heard Shawn's motion to modify temporary maintenance. The court found that the clinic had a "negative value." In 1994, Shawn reported $101,700 in gross receipts, leaving the clinic with a net loss of $2,600, with no salary paid. In 1995, the clinic grossed $75,000. The court determined that Shawn had proven unable to support himself and to pay maintenance and ordered cessation of temporary maintenance. It also reserved jurisdiction to reconsider modification of temporary maintenance retroactively and ordered Shawn to provide Lisa with health insurance until the parties' marriage was dissolved.

At trial, Shawn testified that the parties' breakup caused a decline in patronage, and he lost accounts due to ownership changes. He relied on a friend for a place to live and basic living expenses, supplemented by loans from his parents. Dr. Brown, a veterinarian with a large animal practice in Missoula, Montana, testified that in 1995 his gross income was $95,000. Dr. Kelly, a veterinarian with a large animal practice in Corvallis, Montana, testified that during the first year of her clinic in 1995, she earned over $10,000 per month in gross receipts.

The District Court calculated the parties' assets as $64,775 and the debts incurred during the marriage as $228,455. It then divided the marital estate as follows:

                                                  Shawn             Lisa
                          Assets                  $ 38,500          $26,275
                          Debts                 - $190 204        - $38,251
                                                ----------        ---------
                          Net Distribution      - $151,704        - $11,976
                

The court concluded that Shawn should be liable for the debt owed to his parents, and Lisa should be liable for her contract for deed obligations associated with property acquired after the parties' separation. The court dissolved the marriage, retroactively modified its 1994 order requiring temporary

maintenance, ordered Shawn to pay maintenance of $100 a year for five years and $686 in back-due temporary maintenance, and ordered Shawn and Lisa to bear their own legal fees. Lisa appeals from the findings, conclusions, final decree, and other rulings issued during the action.

DISCUSSION

1. Did the District Court err when it modified its temporary maintenance order?

Lisa argues that the District Court lacked jurisdiction in July 1995 to modify temporary maintenance because Shawn's motion should have been deemed denied for not having been ruled on within forty-five days pursuant to Rule 52(d), M.R.Civ.P. This argument misconstrues Rule 52(d), which applies to Rule 52(b) motions to amend a final judgment and associated findings of fact and conclusions of law. We conclude that the District Court had jurisdiction to modify temporary maintenance.

Lisa maintains that Shawn's motion to modify temporary maintenance was previously denied and that no other motion was before the court. Lisa misstates the record. On October 28, 1994, Shawn moved to modify temporary maintenance. The hearing was continued. At a contempt hearing on June 14, 1995, Shawn explained why he had not paid temporary maintenance and moved for a hearing on his outstanding motion to modify temporary maintenance, which was held on July 11, 1995. When the District Court ruled on Shawn's motion to modify temporary maintenance, it ruled on a still-pending motion. We hold that the District Court did not err when it modified its temporary maintenance order.

Lisa also argues that the District Court amended its temporary maintenance order without making proper findings and conclusions. Lisa has not provided this Court with a complete transcript of the July 11, 1995, hearing for modification of temporary maintenance. Absent a complete record of the hearing, we are not in the position to, and will not, review the trial court's findings related to modification of temporary maintenance.

2. Did the District Court err when it awarded maintenance of $100 a year to Lisa?

Lisa requested $3,333 monthly in maintenance for sixty months to fund a law school education, pay bills, and provide for living expenses. The court awarded her $100 in annual maintenance for five years based on its determination that Shawn had insufficient income to meet the needs of himself and Lisa. Lisa argues the court erred because: (1) it did not consider all of the requirements of § 40-4-203, MCA; (2) it did not impute income to Shawn; and (3) it did not provide Lisa with rehabilitative maintenance.

We review a district court's award of maintenance to determine if the court's findings are clearly erroneous. In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. The District Court made the following findings of fact concerning maintenance:

54. Lisa lack[s] sufficient property to provide for her reasonable needs. She will emerge from this action with a negative net worth and in debt. She [owns] an adequate home but has insufficient resources to finish the remodeling and ... no equity in the property.

55. Lisa is able to support herself at a spartan level while making payments on the debt allocated to her through appropriate employment.... She has a college education and a varied work history at responsible jobs. She is currently a business manager of a prospering veterinary clinic ... receiving ... net pay of $603.85 biweekly.... Lisa lacks sufficient disposable income to monthly retire her current debts in full, obtain...