Marriage of White

No. 94-391
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN RE THE MARRIAGE OF
RAYMOND E. WHITE,
Petitioner/Respondent,
and
PATRICIA N. WHITE, AUG241895
Respondent/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:
Joan Meyer Nye, Nye & Myer, Billings, Montana
For Respondent:
Gregory R. Todd, Hanson, Roybal, Lee & Todd,
Billings, Montana
Submitted on Briefs: May 25, 1995
Decided: August 24, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from the order of dissolution and attendant
findings of facts and conclusions of law handed down by the
Thirteenth Judicial District Court, Yellowstone County. We affirm.
Appellant presents four issues for review:
I. Did the District Court abuse its discretion in its
division of the net marital estate?
II. Did the District Court abuse its discretion by
denying maintenance to Patricia?
III. Did the District Court abuse its discretion by not
awarding Patricia attorney's fees?
IV. Did the District Court abuse its discretion in
awarding Raymond all of the income tax dependency
exemptions for the couple's children?
The parties were married on December 12, 1970 and separated
approximately June 18, 1993. The couple have four children, ages
21, 18, and twins, 17. (Three of these children are issue of the
union.) During most of the marriage Patricia White (Patricia) was
a homemaker. However, in May of 1993 she graduated with a degree
in special education training, but has only worked as a substitute
teacher sporadically in the Billings area. Patricia works as a
van-driver/maid for the War Bonnet Inn making $4.75 per hour
because she says that she has been unable to find permanent
employment in her field.
Raymond White (Raymond) has worked for UPS for fourteen years
and at the time of the bench trial he was a supervisor in the
Sparks, Nevada, area. During 1993, Raymond was on a special
assignment in Nevada and incurred many expenses which were or will
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be reimbursed by UPS.
There is no argument concerning custody as all involved agree
that joint custody is in the best interests of the children.
Patricia is the primary custodial parent. The court directed
Raymond to pay $1,085.00 for all three children and if the son
decided not to finish school but become emancipated, Raymond would
pay only $843.00.
The court denied Patricia's request for maintenance and for
attorney's fees. Patricia appeals.
Did the District Court abuse its discretion in its division of
the net marital estate?
Patricia argues that the District Court did not value the
property correctly and did not accept her valuations of certain
items. Patricia believes that the court should have accepted her
valuation because she had items appraised and Raymond did not.
Raymond argues that the District Court was not bound to accept
Patricia's valuations of property even though she had items
appraised.
District courts have wide discretion in dividing a marital
estate as long as it is done equitably. In re Marriage of Rada
(1994), 263 Mont. 402, 869 P.2d 254. District courts are required
to make an "equitable distribution" of the marital estate, but that
does not necessarily mean courts are bound to make an equal
distribution. Rada I263 Mont. at 405, 869 P.2d at 256; § 40-4-202,
-
MCA. A district court's findings of fact regarding division of the
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marital estate will not be disturbed unless clearly erroneous. in
re Marriage of Rock (1993), 257 Mont. 476, 850 P.2d 296. As long
as the district court's judgment is based upon substantial credible
evidence, this Court will not alter that judgment unless there is
a clear abuse of discretion. In re Marriage of Scoffield (19931,
258 Mont. 337, 852 P.2d 664.
The main contention here is the amount of money that Raymond
borrowed twelve days before trial. Patricia argues that Raymond
borrowed $55,000 in a consolidation loan twelve days before trial
and paid off the house loan of $26,740.65, and another loan for
stocks at $15,789.85, but he did not account for approximately
$12,400 from the total borrowed. Patricia contends that because
the District Court included the entire $55,000 as a marital debt
attributable to Raymond, that she has been deprived of thousands of
dollars in assets.
A review of the record in this case shows that when the court
made the final tally of assets and debts, Patricia had $20,000 more
in assets than Raymond. The court fairly attributed to Raymond the
entire $55,000 debt based upon the court's acceptance of Raymond's
explanation of what he paid with that money. Raymond testified and
submitted a list of what he paid with the $55,000.
Further, simply because the court did not accept Patricia's
appraised value of certain items of the couple's personal property,
it does not follow that the division of the marital estate was
unfair or that Raymond's valuation was in error. The court was not
required to accept the sworn testimony of Patricia's expert. In re
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Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456. The record
reveals that Patricia's "expert" was an ex-boyfriend who appraised
Raymond's tools but did not have as much professional experience in
such valuation as Raymond who had once owned and operated a service
station.
There is nothing in the record which shows the court's
findings to have been clearly erroneous. The record reveals
substantial evidence to support the District Court's use of
Raymond's evaluations. We hold that the District Court did not
abuse its discretion in its division of the net marital estate.
II.
Did the District Court abuse its discretion by denying
maintenance to Patricia?
Patricia argues that the District Court should have awarded
her maintenance because her financial need exceeds her income.
Raymond argues that Patricia has a college degree but has not
looked for work in her field.
The District Court has discretion as to whether to award
maintenance, and we will not set that decision aside unless the
court's clear error constitutes an abuse of discretion. In re
Marriage of Tahija (1992), 253 Mont. 505, 833 P.2d 1095. Property
dispositions are generally preferred over maintenance in marital
dissolution matters. In re Marriage of Smith (19931, 260 Mont.
533, 861 P.2d 189. As mentioned before, here, the court awarded
Patricia $20,000 more in assets, including the debt-free family
home.
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The court considered the elements of § 40-4-203, MCA, in
deciding the maintenance issue and came to the conclusion that both
parties were living beyond their incomes and that Patricia could
have found a teaching job had she put some effort into obtaining
employment in her chosen field. The record bears out the court's
evaluation. Patricia graduated with honors with a degree in
special education, yet she is working as a van-driver/maid. She
admitted at trial to not completing her placement file and to not
obtaining letters of recommendation. She also spent ten days in
California in the spring of 1993 at the prime time to apply for
teaching jobs. Therefore, we conclude that the District Court did
not abuse its discretion in failing to award Patricia maintenance.
III.
Did the District Court abuse its discretion by not awarding
Patricia attorney's fees?
Patricia argues that she is unable to pay her attorney's fees.
Raymond argues that he cannot pay either. Section 40-4-110, MCA,
makes the award of attorney's fees in dissolutions permissive with
the court. In re Marriage of Spence (1993), 257 Mont. 188, 849
P.Zd 161.
Here, the court made a finding that both parties were living
beyond their means and that Patricia had the potential to obtain a
professional position. We have held that when neither party is
better able to pay attorney's fees, each party should be
responsible for his or her own fees. In re Marriage of Hall
(1987), 228 Mont. 36, 740 P.2d 684.
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We hold the District Court did not abuse its discretion by
failing to award Patricia her attorney's fees.
IV.
Did the District Court abuse its discretion in awarding
Raymond all of the income tax dependency exemptions for the
couple's children?
Both parties sought the exemptions for the couple's three
minor children. The court awarded all exemptions to Raymond who is
paying $1,085.00 per month child support. The court heard
substantial evidence concerning the couple's property and income-
earning potential and decided to award the exemptions to Raymond.
Patricia has cited no authority for her argument that she should
have received these exemptions.
The decision to award income tax dependency exemptions is not
a finding of fact nor a conclusion of law, but is made within the
discretionary power of the court to reach an equitable property
decision. Marriase of Rock, 850 P.2d at 298. We will not disturb
these discretionary rulings by the court unless the court abused
its discretion. Marriacre of Rock, 850 P.2d at 298. Patricia has
provided us with no persuasive legal argument to justify her
assertion that the court abused its discretion. Therefore, we
conclude that the court did not abuse its discretion in awarding
Raymond exemptions for the couple's three children.
Affirmed.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
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precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
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August 24, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Joan Meyer Nye
NYE & MEYER, P.C.
3317 Third Avenue North
Billings, MT 59101
Gregory R. Todd
HANSON & TODD
Transwestem II Building, Suite 205
404 North 31st Street
Billings, MT 59101
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
RV.
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