In Re the Marriage of Newton

No. 92-378
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF
JUDITH L. NEWTON,
Petitioner and Respondent, DfZc101 9
92
and
DANIEL J. NEWTON,
Respondent and Appellant.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles A. Harball, Attorney at Law,
Kalispell, Montana
For Respondent:
Bruce McEvoy, Warden, Christiansen,
Johnson & Berg, Kalispell, Montana
Submitted on Briefs: November 19, 1992
Decided: December 10, 1992
Filed:
i
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Petitioner and respondent, Judith L. Newton, brought a
petition for dissolution of marriage on August 1, 1990. Respondent
and appellant, Daniel J. Newton, appeals from the findings of fact,
conclusions of law, and decree of dissolution entered by the
District Court of the Eleventh Judicial. District, Flathead County.
specifically, Daniel appeals fromthe District Court's valuation of
an item of the marital estate and from the District Courtfs award
of temporary maintenance. We affirm.
Daniel presents two issues for review by this Court:
1. Was the District Court's valuation of the sports card
collection clearly erroneous?
2. Was the District Court's award of temporary maintenance
in the sum of $450 per month for five years clearly erroneous?
Daniel and Judith Newton were married in 1975. Two children
were born during the marriage--a son in 1977, and a daughter in
1978. There are no issues raised on appeal relating to the
District Court's determination regarding child support, custody, or
visitation.
A bench trial was held on August 15, 1991. On February 20,
1992, the ~istrictCourt entered its findings of fact, conclusions
of law, and decree of dissolution. The parties stipulated to the
value and distribution of much of the marital estate. At trial,
the parties evidenced a general intent that each side should retain
their own personal property which they were in possession of at the
time of trial. One such item of personal property was a sports
card collection belonging to Daniel. The parties offered
conflicting evidence as to the value of the collection. The
District Court assigned a value of $8000 to the collection.
The District Court found that the value of the parties' assets
was $44,707 and that none of the property was income-producing.
This valuation excluded retirement accounts and a 1991 profit
sharing check of Daniel's which had been previously allocated
between the parties. The total debt of the parties was $9863,
leaving a net marital estate of $34,844. Judith received property
worth $18,085 and assumed $1540 in debt, for a total award of
$16,545. Daniel received property worth $26,622 and assumed $8323
in debt, for a total award of $18,299.
The District Court found that Daniel's monthly expenses
totalled $1768.45 and that Judith's monthly expenses totalled
$1450. This determination of Daniel's monthly expenses included
his child support obligation of $519.25 per month, as determined by
the District Court. The District Court found that Daniel's net
income from his salary was approximately $1500 per month. At the
time of trial, Daniel was employed by the Columbia Falls Aluminum
Company where he had worked for the past twelve years. In addition
to his salary, the evidence presented at trial indicated that
Daniel had received annual profit sharing checks for the past four
years in amounts approximating his annual salary. The evidence
indicated that while the amount of the profit sharing checks may
vary from year to year, it was expected that the payments would be
made annually in the future.
The District Court found that pursuant to the requirements of
5 40-4-203(1), MCA, Judith was entitled to temporary maintenance.
On appeal, Daniel does not contest this finding. The District
Court ordered maintenance of $450 per month for a period of five
years, or until Judith receives a bachelor's degree, remarries, or
dies, whichever occurs first. Following the entry of the decree of
dissolution, Daniel made a motion for a new trial which was denied
by the District Court. Daniel then brought this appeal.
Was the District Court's valuation of the sports card
collection clearly erroneous?
On appeal, Daniel attacks the District Court's finding that
the value of the sports card collection was $8000. Concerning our
standard of review of marital property divisions, this Court
recently stated that:
In the past, this Court has employed an abuse of
discretion standard in reviewing a lower court's
determination of the appropriate division of the marital
estate. This Court has recently clarified that our
standard of review in regard to the factual findings of
the district court relating to the division of marital
property is whether the district court's findings are
clearly erroneous.
In re the Marriage of Danelson (Mont. 1992), 833 P.2d 215, 219, 49
St. Rep. 597, 599.
The only evidence at trial concerning the value of the
collection was the conflicting testimony offered by the parties.
Neither party offered independent evidence or testimony of the
value of the collection. No appraisal of the collection was
obtained. Judith testified that in her opinion the collection was
worth $8000. On cross-examination, she stated that this estimation
of the value of the whole collection was based in part on her sale
of one particular album of the collection. Daniel testified that
the one particular album sold was the most valuable in the
collection and was not indicative of the value of the remainder of
the collection. Daniel also testified that he purchased the
baseball card portion of the collection for between $3250 and
$4000. He then offered several opinions as to the value of the
collection, first assigning a value of $3250 and then $2750.
Neither of the conflicting opinions of the parties as to the
proper value of the collection was particularly compelling. The
relatively unsupported assertions as to the value of the
collection, coupled with the complete absence of any independent
evidence of the value, placed the District Court in a difficult
situation. Based on the evidence before it, the District Court
found the value of the collection to be $8000.
Upon reviewing a District Court's valuation of an item of the
marital estate this Court is guided by several well-established
principles. First, in a dispute over the value of property in a
marriage dissolution, the District Court may assign any value that
is within the range of values presented into evidence. In re the
Marriage of Kramer (l987), 229 Mont. 476, 747 P.2d 865. Second,
the trial court, having had the opportunity to observe the demeanor
and judge the credibility of the witnesses, is in a better position
to resolve conflicting factual testimony than is this Court. In re
the Marriage of Gerhart (DgO), 245 Mont. 279, 800 P.2d 698. In
this instance, the District Court, after observing the testimony of
the parties, found the value of the collection to be $8000. This
value was within the range of values presented. We cannot say that
the finding of the District Court as to the value of the collection
was clearly erroneous.
II
Was the District Court's award of temporary maintenance in the
sum of $450 per month for five years clearly erroneous?
Daniel does not contend on appeal that Judith is not entitled
to maintenance pursuant to the requirements of § 40-4-203(1), MCA.
However, Daniel contests the award on the basis of
F, 40-4-203(2) (f), MCA, which sets forth one of the factors to be
considered in determining the amount and duration of a maintenance
award. Section 40-4-203(2)(f), MCA, provides that in awarding
maintenance a district court judge shall consider:
[Tlhe ability of the spouse from whom maintenance is
sought to meet his needs while meeting those of the
spouse seeking maintenance.
Wtile not always the determining factor, a spouse's ability to meet
his or her own needs is a factor which must be given great weight
in determining an award of maintenance. In re the Marriage of Cole
(1988), 234 Mont. 352, 763 P.2d 39.
Daniel argues that with a monthly income from salary of $1500
and monthly expenses of $1768.45, as determined by the District
Court, the award of maintenance by the District Court ignores the
reality of his financial situation. This Court has in the past
reversed awards of maintenance when it appeared that the party
ordered to pay the maintenance would not have sufficient resources
left over to support himself. In re the Marriage of Keel (1986),
223 Mont. 305, 726 P.2d 812; In re the Marriage of Tow (1987), 229
Mont. 483, 748 P.2d 440.
Judith responds to this argument by pointing out that Daniel's
income is in reality much greater than $1500 per month. The
evidence at trial was that Daniel also receives an annual profit
sharing check in an amount approximately equivalent to his salary.
It is clear from the findings of fact, conclusions of law, and
decree of dissolution, as well as from the District Court's
memorandum and order in response to the motion for a new trial,
that the District Court considered this additional source of income
in determining the maintenance award. Daniel's additional income
from the profit sharing checks was an appropriate basis for the
District Court's maintenance award in this case. An argument
similar to Daniel's was recently considered by this Court in In re
the Marriage of Jacobson (Mont. 1992), 825 P.2d 561, 49 St. Rep.
92. In Jacobson, the husband asserted that his monthly income was
less than his obligation for child support and maintenance. This
Court noted that the husband's corporation had a regular practice
of declaring bonuses to pay expenses that the husband had incurred.
This additional income allowed the husband to meet his support
obligations while at the same time providing for himself.
Likewise, Daniel's additional income fromthe annual profit sharing
checks will enable him to meet the maintenance obligation while
providing for his own needs. The District Court's award of
maintenance in this situation was not clearly erroneous.
Af finned.
We concur:
December 10. 1992
CERTIFICATE O F SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Charles A. Harball
Attorney at Law
20-9th St. East
Kalispell, MT 59901-5419
Bruce McEvoy
Warden, Christiansen, Johnson & Berg
P.O. Box 3038
Kalispell, MT 59903-3038
E D SMITH
CLERK O F T H E SUPREME COURT
STA'I'E O F M O N T M A