Marriage of Adams

NO. 93-026
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
BRENDA LEIGH ADAMS, now
known as BRENDA LEIGH ELVEY,
Petitioner and Appellant,
and
PAUL LEON ADAMS, JR.,
Respondent and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kerry Newcomer; Geiszler & Newcomer, Missoula,
Montana
For Respondent:
Raymond P. Tipp; Tipp, Frizzell & Buley, Missoula,
Montana
Submitted on Briefs: August 26, 1993
Decided: October 5, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Brenda Adams appeals from portions of the findings of fact,
conclusions of law and decree of dissolution entered by the Fourth
Judicial District Court, Missoula County. We affirm.
We phrase the issues on appeal as:
1) Did the District Court err in declining to award
maintenance to Brenda?
2) Did the District Court err in determining the amount and
duration of the parents' child support obligations?
3) Did the District Court err in ordering the parties to pay
their respective attorney's fees and costs?
Brenda and Paul Adams were married in 1975 in Stoney Ridge,
Ohio. At the time of the dissolution of their marriage on November
2, 1992, Brenda was thirty-eight years old and Paul was forty-seven
years old. Two children were born of the marriage: Beth, age
fourteen, and Steven, age eleven. Steven suffers from Down's
Syndrome: expert testimony established that he functioned at
approximately a four-year-old level mentally.
During the marriage, Paul was employed in the railroad
industry in various positions. He currently works as a safety
engineer and earns approximately $39,200 annually, plus a profit
sharing bonus which, although not guaranteed, has averaged $3,500
per year. Brenda served as the primary homemaker and caretaker of
the couple's children during the marriage. She is presently
employed as a grocery clerk earning $4.75 per hour. Brenda began,
but did not complete, training as a respiratory therapist.
2
Brenda filed a petition for dissolution of the marriage on May
17, 1990. The District Court held the dissolution hearing on
September 3 and 4, 1992, and entered its findings of fact,
conclusions of law and decree of dissolution on November 2, 1992.
Did the District Court err in declining to award maintenance
to Brenda?
When reviewing a grant or refusal of maintenance, we will not
overturn the district court unless the court's findings are clearly
erroneous. In re Marriage of Bross (Mont. 1993), 845 P.2d 728,
730, 50 St.Rep. 13, 14. A district court may award maintenance
after the marital property has been equitably distributed and the
court has properly applied the criteria of 5 40-4-203, MCA. A
district court may grant maintenance only if it finds that the
spouse requesting maintenance:
(a) lacks sufficient property to provide for her
reasonable needs; and
(b) is unable to support herself through appropriate
employment . 0 . .
Section 40-4-203(l), MCA (emphasis added); In re Marriage of McLean
(Mont. 1993), 849 P.2d 1012, 1017, 50 St.Rep. 35, 38; In re
Marriage of Dorville (1992), 254 Mont. 111, 113, 836 P.2d 588, 589.
In distributing the marital property, the District Court
awarded Brenda approximately $80,944 in cash or cash-equivalent
assets, a car, a one-carat diamond ring and numerous household
furnishings. The District Court found that this apportionment was
made in lieu of maintenance and would provide Brenda with the
opportunity for future acquisition of capital assets and income.
3
Brenda argues that because she spent $11,442 of that cash during
the separation period on household expenses, she did not actually
receive the amount awarded by the court and therefore, the denial
of maintenance was erroneous. We disagree.
Initially, it is questionable whether the entire $11,442
withdrawn from the couple's savings account during the separation
period properly can be categorized as l*household'* expenses. We
note that Brenda used $5,809, nearly half of the disputed amount,
to pay the attorney's fees and expert witness fees she incurred in
the dissolution proceedings.
We also note that from May, 1990, until October, 1991, Brenda
received approximately $1,860 per month from Paul to help defray
household expenses during the separation period. In October of
1991, the parties stipulated that Paul would pay Brenda $1,030 per
month as temporary child support and maintenance until the
dissolution was final. As such, the couple's joint savings account
was not the only source of funds available to Brenda for household
expenses. We conclude, therefore, that the District Court did not
err in including the previously spent $11,442 in the distributable
marital estate*
Furthermore, the court ordered Paul to pay $724.47 per month
in child support, provide funds for child care, obtain medical
insurance and pay all uninsured medical expenses for the children.
Given the distribution of the marital estate and Paul's future
obligations to Brenda, we cannot conclude that the District Court's
determination that Brenda was awarded sufficient property to meet
4
her reasonable needs is clearly erroneous. Because both factors
contained in 5 40-4-203(l), MCA, are required before a court can
award maintenance, we need not discuss whether Brenda is capable of
supporting herself through appropriate employment.
We hold that the District Court did not err in declining to
award Brenda maintenance.
Did the District Court err in determining the amount and
duration of the parents' child support obligations?
Brenda raises several concerns regarding the amount and
duration of child support awarded by the District Court. Our
standard of review for an award of child support is that a
presumption exists in favor of the district court's determination.
We will reverse a district court's determination only for an abuse
of discretion. In re Marriage of Xukes (Mont. 1993), 852 ??.2d 655,
657, 50 St.Rep. 553, 554. After reviewing the record, we conclude
that the District Court did not abuse its discretion in determining
the amount and duration of the parties' support obligations.
Brenda advances several challenges to the court's child
support determinations but neither articulates her arguments
clearly nor offers legal or record-based support to demonstrate an
abuse of discretion. For example, she seems to complain that the
court lVprobablyl' did not apply, or erroneously applied, the child
support guidelines. She concedes that she did not submit a
proposed calculation under the guidelines implemented in 1992 and
offers no record-based calculation to illustrate the court's
alleged error in calculation. Her main concern appears to be that
5
if Paul requests a recalculation under the 1992 guidelines, his
child support obligation may be reduced. It is not this Court's
role to make legal determinations based on unspecified and
unsupported assertions of error or a party's concern about actions
that may or may not occur in the future.
Similarly, Brenda argues that the District Court should have
considered Steven's likely need for support beyond majority. In
this regard, she does not present any legal authority requiring the
court to do so or supporting her assertion that the failure to do
so constitutes an abuse of discretion.
We conclude, on the basis of the record before us, that the
District Court did not abuse its discretion in determining the
amount and duration of the parents' child support obligations.
Did the District Court err in ordering the parties to pay
their respective attorney's fees and costs?
Section 40-4-110, RCA, allows a district court to award
attorney's fees to either party after considering the financial
resources of both parties. This Court will not overturn a court's
denial of attorney's fees under 5 40-4-110, MCA, absent an abuse,of
discretion. In re Marriage of Wackier (Mont. 1993), 850 P.2d 963,
966, 50 St.Rep. 406, 408.
It is clear from the court's findings that it considered the
financial resources of both parties. It specifically found that
each party had sufficient assets with which to pay his or her own
attorney's fees and costs. We conclude that the District Court did
not abuse its discretion in declining to award Brenda attorney's
6
fees and costs.
Affirmed.
Pursuant to Section I Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.
We concur: ,
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October 5, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Kerry N. Newcomer
Geiszler & Newcomer
265 West Front
Missoula. MT 59802
Raymond P. Tipp, Esq.
Tipp, Frizzell & Buley
P.O. Box 3778
Missoula, MT 59806-3778
ED SMITH
CLERK OF THE SUPREME COURT