In Re the Marriage of Cannon ( 1986 )

No. 86-135
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
IN RE THE MARRIAGE OF
JAMES L. CANNON,
Petitioner and Respondent,
and
PATRICIA R. CANNON,
Respondent and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Berger Law Firm; Chris J. Nelson, Billings, Montana
For Respondent:
Sandall, Cavan, Smith, Howard & Grubbs; John J. Cavan,
Billings, Montana
Submitted on Briefs: June 12, 1986
Decided: August 21, 1986
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The wife appeals the maintenance award in this dissolu-
tion of marriage. The District Court for Yellowstone County
awarded her maintenance of $500 per month until husband's
retirement, or her death or remarriage. We affirm.
The issue is whether there is substantial support in the
evidence for the amount of maintenance awarded. The parties
have stipulated to withdraw a second issue originally
briefed, regarding distribution of personal property.
After a two-day bench trial, the court made lengthy
findings and conclusions. It found that husband and wife
were married in 1956. At the time they were married, the
husband had graduated from college with a degree in geology
and the wife had graduated from college with a degree in home
economics and interior decoration. They have four children,
all of whom are now adults. The wife was a homemaker
throughout the marriage. The family lived in Colorado,
Texas, and Montana, where the husband was employed as a
geologist for various oil companies. At the time of trial,
husband was employed in Billings. His 1984 federal income
tax listed his gross income as $74,022.
The court found that the value of the parties' net
marital estate was $288,728, which it divided one-half to
each party. The husband received the marital home. The bulk
of the value of the wife's share of the estate is $144,364
from a Dean Witter account. The court ordered that the
husband continue to pay the expenses of the two children in
college. It also awarded the wife a portion of the husband's
retirement benefits.
The court further found that the wife is an only child
and is very attached to her mother, with whom she had lived
until she married at age 29. During the parties' marriage
the mother lived with them for two years in Denver and Hous-
ton until she returned to work in Billings. The wife moved
in with her mother during the dissolution proceedings. Her
mother is self-supporting.
The wife submitted a statement of monthly expenses of
$1,397.95. The District Court found that those expenditures
did not accurately reflect the standard of living enjoyed
during the marriage. It found that if the wife's share of
the income-producing portion of the marital estate were
safely invested it would yield $12,600 to $22,400 annually.
It awarded maintenance of $500 per month. The court also
found that there was a good possibility that the wife could,
if she desired, find full or part-time employment to supple-
ment her income from the marital estate. The court stated
that the wife had no intention of seeking any type of employ-
ment, however.
Once it has been determined, as it has here, that a
maintenance award is proper, Section 40-4-203 (2), MCA, sets
forth the criteria used in setting a maintenance amount:
(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 indepen-
dently, including the extent to which a provision
for support of a child living with the party in-
cludes 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 condi-
tion of the spouse seeking maintenance; and
(f) the ability of the spouse from whom mainte-
nance is sought to meet his needs while meeting
those of the spouse seeking maintenance.
The scope of this Court's review is determining whether the
District Court has properly considered the factors listed in
the statute, and whether there is substantial evidence to
support the findings.
The wife cites Marriage of Cromwell (1979), 180 Mont.
40, 588 P.2d 1010, for the rule that the standard of living
established during the marriage will be used in setting a
maintenance amount. She argues that owning her own home is
part of her established standard of living and that she is
entitled to be in the same position as the husband, having
only a small mortgage left to pay on a home. She plans to
buy a new car and use $70,000 of her Dean Witter money to
purchase her mother's $-bedroom home. The record does not
establish that such purchases are necessary to maintain her
standard of living. We conclude that in setting the amount
of maintenance the court was not required to accept the
wife's plan to buy a new car and to spend $70,000 for pur-
chase of her mother's home.
The wife contends there is not substantial evidence to
support the District Court's award to her of $500 per month
in maintenance, since she listed her monthly expenses at
$1,397.95 and she did not list any amount for housing or car
payments. She testified that she intended to continue living
with her mother following the dissolution. The husband
presented testimony by a stockbroker that if the wife invest-
ed her Dean Witter account money in tax free treasury bonds,
it would yield $12,250 per year. She described other safe
investments which would approximately double that return.
Even if we assume the lower figure, that along with the $500
in monthly maintenance would cover the expenses the wife has
listed. Additionally, the District Court found that several
items listed as expenses did not accurately reflect the
standard of living enjoyed by the wife during the marriage.
The wife's testimony on cross-examination supports the Dis-
trict Court's finding that a portion of the expenses listed
were not for the wife's benefit, but for the benefit of the
parties' children. These included $200 per month for gifts
and $100 per month for telephone expenses.
The wife also listed as monthly expenses $150 for utili-
ties, $9.75 for newspaper, $250 for food, and $7.75 per month
for trash pickup. The court found that these expenses "con-
template the cost of those items for both [the wife] and her
mother. The court finds that under those circumstances, the
mother will contribute reasonably to some of those expenses,
namely utilities, house maintenance and food." That finding
is supported by the wife's testimony on the bases for the
expenses she listed and on her mother's financial self-suffi-
ciency. The court also found the wife's $200 expense for
clothing each month unreasonable, particulary since she is
not employed outside the home and "does not require an exten-
sive wardrobe for any reason."
The wife also argues that the District Court cannot
presume that she would be able to find a job. The expert
testimony was that because of her age she would probably not
be able to obtain employment in Billings. We have carefully
reviewed the District Court's findings and have concluded
that the court did not set the maintenance amount based on an
assumption that the wife would find a job. The court found
that the wife "intends to make no effort whatever" to find
employment.
We conclude that the District Court's extensive findings
demonstrate that, in setting the amount of maintenance, it
considered the relevant factors set out in S 40-4-203(2),
MCA: the wife's financial resources including marital prop-
erty apportioned to her, her ability to meet her needs inde-
pendently, the standard of living established during the
marriage, the duration of the marriage, the age and physical
and emotional condition of the wife, and the ability of the
husband to pay maintenance. The District Court is not re-
quired to draw up a monthly budget of the wife's reasonable
expenses. We hold that there is substantial support in the
evidence for setting t.he maintenance amount at $500 per
month. We affirm.
We Concur:
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