In Re the Marriage of Sullivan

No. 8 7 - 8 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
IN RE THE MARRIAGE OF
TIM SULLIVAN,
Petitioner and Appellant,
and
JOAN C. SULLIVAN,
Respondent and Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Arnold Olsen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hull and Sherlock; Jeffrey M. Sherlock, Helena,
Montana
For Respondent:
Mark A. Vucurovich, Butte, Montana
Submitted on Briefs: July 23, 1 9 8 7
Decided: October 27, 1 9 8 7
Filed:
DCT 2 '1 1987 wA,a3.we--
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
The District Court for the Second Judicial District,
Silver Bow County, dissolved the marriage of the parties in
September 1986. In December 1986, the District Court dis-
tributed the marital estate. Mr. Sullivan appeals the dis-
tribution of the marital estate and award of maintenance. We
affirm.
The issues are:
1. Did the District Court's valuation of assets and
distribution of property constitute reversible error?
2. Was there sufficient evidence to support the Dis-
trict Court's award of maintenance?
The parties to this action were married in 1964 and are
residents of Silver Bow County. They have two children, both
of whom were emancipated at the time of trial. During the
course of the marriage the husband received a bachelor's
degree, a master's degree, and a doctorate degree. At the
time of trial he was making a salary of approximately $45,000
per year as a curriculum director for School District No. 1
in the Butte public school system. The wife has only a high
school diploma. She testified that she was employed as an
automobile salesperson earning approximately $400 per month
in commissions at the time of trial.
The District Court (a) awarded the home, subject to a
$4,500 morgage, to the wife; (b) awarded the husband the full
value of his two pensions, a Teachers Retirement pension and
a Teamsters pension; (c) awarded the parties the personal
property currently in the possession of each, valuing the
property at $7,500; (d) ordered that the husband be responsi-
ble for all debts of the marriage; and (e) ordered the hus-
band to pay $350 per month maintenance for two years.
I
Did the District Court's valuation of assets and distri-
bution of property constitute reversible error?
The husband argues that the District Court improperly
adopted the wife's proposed findings and conclusions. We
conclude that the findings and conclusions are properly
supported by the evidence. We hold that the court did not
commit error through its adoption of significant parts of the
wife's proposed findings and conclusions. See In re the
Marriage of Rogers (Mont. 1987), 734 P.2d 677, 680, 44
St.Rep. 556, 560.
The husband argues that the findings and conclusions do
not specifically set forth the liabilities of the parties and
so he cannot determine the debts for which he is held respon-
sible. Both parties submitted extensive statements of in-
come, expenses, assets and liabilities which were declared to
be true and correct under penalties of perjury. These sched-
ules contain itemized liabilities. In addition, the husband
testified at length regarding liabilities. We conclude the
District Court did not err in failing to make a more specific
list of liabilities.
The husband argues that the valuation of the home was
not supported by the evidence. The District Court valued the
home at $67,000 based upon an appraisal by James Burgess.
The schedule submitted by the husband valued the home at
$42,000-$48,000. The schedule submitted by the wife valued
the home at $45,000. At trial the parties agreed they would
provide a current appraisal. The appraisal of James Burgess
is not a part of the record. The husband argues for reversal
on the technical absence of the appraisal. We conclude this
is a technical argument without merit. Analyzing the distri-
bution of assets, it is apparent that if the home was over-
valued, it is the wife who has a basis for complaint, and not
the husband. We conclude that the house valuation does not
constitute reversible error as to the husband.
The husband raises a technical argument with regard to
the value of the pensions which were awarded to him. He
argues that the valuations by the District Court in the
amount of $38,727 and $9,000 are not supported by the evi-
dence. At trial the husband's counsel agreed to provide an
updated valuation which does not appear in the record.
Husband's schedule valued the pensions at $34,000 and $9,000
and his proposed findings valued the pensions at $38,727 and
$23,021. Regardless of the valuation, the record does not
disclose injury to the husband. We conclude that the Dis-
trict Court's valuation of pensions awarded to the husband
does not constitute reversible error.
The husband also argues that the District Court failed
to consider the wife's alleged dissipation of the estate.
The District Court said that the husband had made broad
allegations of forgery which the court "finds untrue". There
is substantial evidence to support the conclusion of the
District Court, and we find no error.
Was there sufficient evidence to support the District
Court's award of maintenance?
In determining maintenance, the District Court must be
guided by § 40-4-203, MCA. Initially the court must deter-
mine whether maintenance is proper pursuant to subsection (1)
which permits a maintenance award if the wife lacks suffi-
cient property to provide for her reasonable needs and is
unable to support herself through appropriate employment.
The District Court found that the wife's limited re-
sources, her limited educational background, and the length
of the marriage qualified her for maintenance. The only
substantial asset which she enjoys is the family home which
is not income producing property. She has only a high school
education, and much of her 22 years of marriage was spent as
homemaker. Although the husband alleges that the wife had
earned as much as $20,000 in 1979 and also in 1980, the
record does not support this contention. Her W-2 forms
indicate that she earned $11,224 in 1981, $7,896 in 1984, and
$4,292 in 1985. Currently the wife earns approximately $400
per month. We conclude that subsection (1) of S 40-4-203,
MCA, has been satisfied, and that the District Court did not
abuse its discretion by awarding maintenance.
Next the District Court must look to the factors set
forth in subsection (2) of the statute for the determination
of amounts and periods of maintenance. The husband contends
that the court did not have sufficient credible evidence to
support its award of $350 per month for 2 years. He also
believes that the court failed to consider that his monthly
financial obligations are greater than his financial resourc-
es and so he is unable to meet his needs while meeting the
needs of the wife.
In its findings and conclusions the court considered the
wife's limited education, the length of marriage, the high
earning capacity of the husband, the limited earning poten-
tial on the part of the wife, and the wife's limited assets.
We conclude that the record contains substantial evidence to
support the maintenance award of $350 per month for two
years.
The husband argues that his monthly payout will exceed
his monthly earnings. We note that a number of the listed
expenditures on the part of the husband are no longer re-
quired as a result of the form of the decree. We conclude
there is substantial evidence to support the award of
maintenance.
We affirm the District Court.
Justices