In Re the Marriage of Greenlee ( 1991 )

No. 91-095
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
IN RE THE MARRIAGE OF
SHARON G A Y U GREENLEE,
Petitioner and Appellant,
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Virginia A. Bryan, Wright, Tolliver & Guthals,
~illings,Montana
For Respondent:
Michael G . Moses, Moses Law Firm,
~illings,Montana
Submitted on Briefs: June 27, 1991
Decided: September 5, 1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Appellant Sharon Greenlee appeals from the judgment of the
District Court of the Thirteenth Judicial District for Yellowstone
County, denying her maintenance. Cross-appellant Roger Greenlee
appeals the judgment regarding sale of the parties' family home.
We reverse in part and affirm in part.
The issue raised by the appellant is whether the District
Court erred in its determination that she is not entitled to
maintenance.
The issue raised by the cross-appellant is whether the
District Court erred in not fixing a specific time and party
responsible for sale of the family home.
The parties instituted dissolution of marriage proceedings in
April 1989. The issues of property division, maintenance, custody,
child support, and visitation were presented to the court for
determination on January 3, 1990.
On October 16, 1990, judgment was entered. Joint custody of
the two minor children was ordered, with respondent the primary
residential custodian. The parties were ordered to sell the family
home and divide the proceeds equally. They were to continue as
joint owners of partnership interests in rental property. The
retirement plans were divided equally between the parties and the
respondent was required to buy out the appellant's interest in his
dental practice. Additional distributions of personal property
were made on an equal basis. The court determined that no
maintenance was necessary in light of the property distributions,
appellant's ability to earn income, and her lack of responsibility
for child support payments. The appellant had sought $850 per
month for maintenance.
On October 26, 1990, appellant filed a motion to amend the
judgment to provide for maintenance. That motion was briefed by
both parties, and an order was entered on December 7, 1990, denying
the motion to amend. Appellant filed this appeal on January 7,
1991. Respondent filed his cross-appeal regarding disposition of
the family home on January 21, 1991.
Appellant contends the District Court abused its discretion
when it determined she was not entitled to maintenance. The
appellant does not dispute the property division. However, she
contends that the court erred in its application of 6 40-4-203,
MCA, the statute that pertains to maintenance. Specifically,
appellant maintains that the court erred in its determination that
the property which was awarded to her was sufficient to provide for
her reasonable needs under subsection (l)(a) of 5 40-4-203, MCA.
The court, in its Findings of Fact and Conclusions of Law,
stated:
Because of the value of the marital estate and the
distribution of the assets of the marital estate, as well
as the ability to earn income and relief from any child
support obligations, this Court determines that
maintenance is not appropriate. In light of the
distributions, the Court specifically finds that
Petitioner does not lack sufficient property to provide
for her reasonable needs, nor is she unable to support
herself through appropriate employment. The Court
specifically considered the financial resources of
Petitioner, including the marital property apportioned
to her and her ability to meet her needs independently
through appropriate employment. The Court also
considered the provisions of support of the children who
are living with Respondent and Petitioner being relieved
of any obligation of support for the children.
There is no plan concerning the acquisition of sufficient
further education or training to enable Petitioner to
find appropriate employment. The Court considered the
standard of living established during the marriage, the
duration of the marriage, and the age and physical and
emotional condition of all the parties involved. The
Court further considered the ability of Respondent under
the circumstances to meet his needs as well as meeting
the needs of his children in terms of providing them with
support and education.
Appellant maintains that the properties she received, including
an apartment house partnership and an interest in a professional
building, were income-consuming, not income-producing assets.
Neither the family home nor the time shares in a Big Sky condominium
produce any income. The wife's interest in the dental practice,
while income-producing, was not sufficient to provide for her needs,
based upon her prior standard of living.
Appellant currently earns less than $12,000 a year from her
work. She testified that her monthly expenses are approximately
$3200 per month. Appellant sought $850 per month in maintenance in
the dissolution proceeding.
This Court has held that in order to determine the sufficiency
of the property distribution in lieu of maintenance, the district
court must decide whether the property awarded is income-producing
, .
or income-consuming. I re Marriage of Goodman (1986) 222 Mont. 446, 723
n
p.2d 219; InreMam'ageof Cole (1988), 234 Mont. 352, 763 P.2d 39.
Appellant claims that the District Court committed an abuse of
discretion by failing to consider income-producing versus income-
consuming qualities of the property award. We find merit in the
appellant's position. Much of the property distributed to appellant
has little or no income value. The court did not or could not
determine the value of either the apartment house or the professional
building. It is clear from the record that both produce little or
no income at this time, and that the outstanding liability upon both
is substantial. The family home produces no income until a buyer is
found. The Big Sky time share is not an income-producing asset, and
the share of the retirement plan is not practically available to the
appellant until its maturation, approximately ten years from now.
While the District Court correctly analyzed most of the criteria
contained within 5 40-4-203, MCA, we hold that the court did not
properly consider the income-producing versus income-consuming
qualities of the property awarded. Therefore, we reverse the
decision of the District Court regarding maintenance and remand this
case for further consideration of that issue. In doing so, the
District Court should make specific findings regarding appellant's
actual living expenses, and how any property that has been
distributed to her contributes to the payment of those expenses.
Based on the facts in this case, if appellant9s actual and
necessary living expenses are greater than her income, and her income
5
is not supplemented by the property she received, she is entitled to
maintenance payments pursuant to 1 40-4-203, MCA.
The respondent contends on cross-appeal that the lower court
erred in failing to provide a specific time for the sale of the
family home and a specific person responsible for the sale.
The District Court stated that:
The family home should be sold and after costs of sale
and expense, the proceeds split 5 0 / 5 0 between the
parties. Petitioner shall continue to reside in the home
pending sale and shall cooperate with the effort to sell.
Respondent shall continue to make mortgage payments and
receive the t a x deduction for the payments.
The family home has been listed with a ~illingsrealtor as of
April 1991. While there was some delay in the process, w e conclude
that both parties have begun compliance with the lower court's order
by listing the house. Bath parties stand to gain financially by the
sale of the home, but now need a willing buyer. No evidence has been
shown that the appellant has attempted to thwart the sale of the
home. We find no abuse of discretion on the part of the lower court.
Therefore, we affirm the decision of the District Court regarding the
sale of the family home.
Reversed in part, affirmed in part, and remanded to the District
Court for further proceedings consistent with this opinion.
We concur:
September 5, 1991
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Virginia A. Bryan
Wright, Tolfiver & Guthals
P.O. Box 1977
Billings, MT 59103
Michael G. Moses
Moses Law Firm
P.O. Box 2533
Billings, MT 59103
ED SMITH
CLERK OF THE SUPREME COURT
BY: