In Re the Marriage of Korpela , 219 Mont. 150 ( 1985 )

NO. 85-305
IN THE SUPREME COURT OF THE STATE O F MONTANA
1985
I N RE THE MARRIAGE OF
LEOLA FLOERCHINGER KORPELA,
P e t i t i o n e r and R e s p o n d e n t ,
and
JOHN L . KORPELA,
R e s p o n d e n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E i g h t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y o f C a s c a d e ,
T h e H o n o r a b l e Thomas M c K i t t r i c k , J u d g e presiding.
COUNSEL O F RECORD:
For Appellant:
F r i s b e e , Moore & S t u f f t ; R o b e r t G. Olson, C u t Bank,
Montana
For Respondent:
Alexa-nder & Raucus; J. D a v i d S l o v a k , G r e a t F a l l s ,
Montana
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S u b m i t t e d on B r i e f s : Sept. 1 2 , 1 9 8 5
Decided: December 1 8 , 1985
Filed: D E C l d 1985
Clerk
Mr. Chief Justice 2. A. Turnage delivered the Opinion of the
Court.
Husband, respondent in a dissolution entered September
8, 1983, appeals a final judgment entered in the Eighth
Judicial District, Cascade County, on January 22, 1985,
following a post-dissolution hearing on reserved issues,
including property distribution and maintenance.
F e affirm the judgment.
J This Court finds nothing in
the record to establish that the findings of fact and conclu-
sions of law are clearly erroneous. Appellant has not shown
an abuse of discretion.
Appellant raises two issues:
1. Did the District Court err in awarding maintenance
to Leola Floerchinger Korpela of $500 per month for ten
years?
2. Did the District Court err in ordering John Korpela
to pay one-half of Leola Korpela's attorney fees incurred in
the dissoluti.on?
Leola and John Korpela entered into a common-law mari-
tal arrangement sometime after July 1963. This common-law
marriage continued until dissolution by court order dated
September 8, 1983. The court ordered an undetermined trial
date of the remaining issues reserved, including maintenance
and equitable property division, if the parties could not
come to an agreement. After unsuccessful settlement efforts,
the court finally held s, hearing on April 25, 1984, and
entered its findings of fact, conclusions of law 2nd judgment
on January 25, 1985.
The record discloses that for the first ten years of
the Korpe1.a marriage, the couple lived in Leola's home in
Conrad, Montana. In the early years, her four minor children
from a prior marriage lived with them. Leola performed a11
the homemaker functions and also worked full-time as a
nurse's aid. During this perioz she was the principal bread-
winner while John was building his truck-driving business.
In late 1975 the Xorpelas purchased "the farm1' on a contract
for deed with a down payment from an inheritance John re-
ceived from his mother's estate. The couple moved to a house
on this ten-acre parcel several miles outside Conrad.
The court found that the Korpelas had total marital
assets of $153,140 and distributed a total of $69,970 to
Leola, including "the farm," a savings account of $4,000, an
insurance policy of $1,000, her retirement account of $4,070,
and her vehicle worth $5,000. John received $83,170, includ-
ing his business equipment, a $31,868 retirement account, and
nearly $6,000 in savings. John was solely liable for the
$24,078 on his unpaid taxes for 1982 and 1983. Each was
liable for one-half the balance of $13,872 remaining on the
contract for deed.
The court also found that Leola had made a significant
contribution to the marriage both as a homemaker and a full-
time wage earner for the entire marriage. During the first
ten years she "shouldered the burden of all necessary living
expenses," allowing John to establish a very profitable
business, to acquire equipment, and to accumulate a large
retirement account. She also contributed to the maintenance
and improvement of the farm property acquired in late 1975.
The court determined that Leola would quickly deplete
her savings account as her monthly income of $700 take-home
pay cannot satisfy her expenses and also her obligation to
pay on the property. Because of her age of sixty-three, her
length of service as a nurse's aid, and her physical
condition, her employment is reaching an end and therefore
she needs continuing maintenance to meet her expenses and
obligations. John testified that he had made the temporary
maintenance payment of $500 per month without going into his
savings. The record reflects increasing income approaching
$40,000 in 1982. The court determined that he could afford to
pay maintenance. The record indicates that at age fifty-five
with a truck-driving business becoming more profitable, John
has ten years to retirement and adequate foreseeable income.
After hearing evidence on attorney fees at the hearing, the
court also determined that John is in a superior financial
position and ordered him to pay half of Leola's attorney fees
pursuant to court discretion under § 40-4-110, MCA.
1. Maintenance. Appellant contends that the court did
not apply the proper statutory criteria to determine mainte-
nance under S 40-4-203, MCA (1983). Maintenance is allowed
when two conditions exist: (1) party seeking maintenance
lacks sufficient property to provide for her reasonable
needs; and (2) she is unable to support herself through
appropriate employment. We find, however, that in Finding of
Fact No. 22, the court clearly considered these two factors
in awarding maintenance and also determined the additional
factor not mentioned by appellant which is necessary in
determining maintenance, i.e., the ability of the husband to
pay and still meet his own needs.
The record clearly supports a finding that Leola lacks
sufficient property to provide for her reasonable needs.
"The farm" is a residence with acreage and to rent it would
not provide appreciable income after taxes and expenses.
Leola's incone is not sufficient to take care of her needs,
including the expense of making her share of the payment on
the property. The record indicates that John has adequate
incone to pay maintenance and meet his needs.
The determination of maintenance and the amount of
maintenance are matters within the broad discretion of the
District Court which this Court will not disturb unless
clearly erroneous. In Re the Marriage of Schenck (Mont.
1984), 692 P.2d 6, 9, 41 St.Rep. 2137, 2139. The findings
and conclusions indicate the employment of conscientious
judgment in arriving at a substantially just result. In re
the Marriage of Laster (Mont. 19821, 643 P.2d 597, 601, 39
St.Rep. 737, 740. (Citations omitted.) The court considered
Leola's limited in.come, her long-term employment in an ex-
hausting job, her age, her inability to meet completely her
needs including the payment on the property. "Sufficient
property" to provide for her needs is income-producing prop-
erty. Laster, supra. Appellant's speculation that "the farm"
could be rented is speculative at best and not supported by
the record. There was no evidence that it was
ii~come-producing. We find no abuse of discretion in the
award of maintenance.
2. Attorney fees. Appellant argues that the issue of
attorney fees was res jud.icata in the 1983 decree because
Leola's attorney failed to present evidence on attorney fees
in the 1983 dissolution proceeding and because the court
failed to reserve the issue for the final judgment. The 1983
decree specifically concluded:
4. That if the parties cannot agree
upon any or all of the issues reserved,
including maintenance and equitable
determination of property rights, a
pretrial conference shall be held on the
8 [sic] day of November , 1983 F
4:30 P I [sic] and a trial date of the
remaining issues shall then be fixed.
Ohviously, the court did not limit the issues reserved to
maintenance and property distribution. Had the court refused
to award attorney fees without setting forth its reasons, the
matter would not be res judicata but would have called for a
remand to indicate the reasons for refusal. In Re the Mar-
riage of Perry (Mont. 1985), 704 P.2d 41, 43, 42 St.Rep.
1101, 1105-1106.
Here the court had the discretion to award attorney
fees und-er $ 40-4-110, MCA (1983). The court stated its
reasons for the award of half of Leola's attorney fees in
Finding of Fact No. 23: John is in a far superior financial
position, given the evidence on their financial resources.
Finding No. 23 detailed the testimony on reasonableness of
Eees. There appears to be no abuse of discretion in this
award, where the court considered evidence on the parties'
relative financial situations. In Re the Marriage of Carr
(Mont. 1983), 667 P.2d 425, 427, 40 St.Rep. 1263, 1266.
Affirmed.
We concur:
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7
Justices-