Marriage of Bartz

No. 93-381
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
IN RE THE MARRIAGE OF
BARBARA K. BARTZ,
Petitioner and Respondent,
:
and
GARY C BARTZ,
.
Respondent and Appellant.
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:
Clinton H. Kammerer, Kammerer Law Offices,
Missoula, Montana
For Respondent:
Byron W. Boggs, Attorney at Law,
Missoula, Montana
Submitted on Briefs: April 7, 1994
Decided: A p r i l 13, 1994
Filed:
Justice William E. Hunt. Sr., delivered the opinion of the Court.
Appellant Gary Bartz appeals from the Fourth Judicial
District, Missoula County, regarding the District Court's division
of marital assets and award of maintenance to petitioner Barbara
Bartz .
We affirm.
The issues on appeal are:
1. Did the District Court err in failing to consider the net
worth of the parties before dividing the property and debts?
2. Did the District Court err in awarding maintenance to
petitioner?
Gary and Barbara were married for 16 years with no children
born during the marriage. During the marriage, the parties
acquired equipment, personal property, and two parcels of land in
Potomac, Montana. The parties submitted personal property values
to the special master. Gary's estimate was $52,769.62, and
Barbara's estimate was $65,855.62. Both parties omitted Gary's
Champion retirement account providing a yearly annuity of $1,548
when Gary reaches age 65. The parties agreed marital debts totaled
$39,248.
After the special master submitted her recommendations to the
District Court, a hearing was held wherein Gary disputed these
recommendations, arguing that the special master failed to
adequately consider the net worth of the marital estate resulting
in an inequitable property division to him.
The District Court adopted the special master's findings that
Gary's logging business provided an estimated 1992 gross income of
approximately $75,000, with a net income of approximately $25,000,
and Barbara presently earns approximately $750 per month, plus
$2,000 per year in tips as a bartender in Potomac. The court also
found that during Gary's self-employment, the parties' income
gradually increased over the past five years from $5,644 in 1988,
to $35,907 in 1991, and beginning in 1986, Barbara managed the
books for Gary's logging business and worked inside the home as a
homemaker.
Gary was awarded real and personal property totaling between
$47,000 and $52,604, the Champion retirement account totaling
$3,500, and debts totaling $28,693. The court awarded Barbara real
and personal property totaling $45,165.31, debts totaling
$13,773.56, and awarded her $400 monthly maintenance for 24 months.
Gary appeals.
ISSUE 1
Did the District Court err in failing to consider the net
worth of the parties before dividing the property and debts?
The District Court provided values and debts owed for both
real and personal property. The first parcel of the real property
was valued at $32,500, which includes a mobile home, shop, and
property improvements, and had no debt attached; however, $3,218.56
remained on a loan acquired to construct the shop on the parcel.
The second parcel was unimproved and was valued at $12,500, with a
$6,000 debt attached. Gary's equipment necessary to his logging
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business was valued at $35,380. In Finding of Fact No. 23, the
court stated that the total personal property value was between
$52,769.62 and $65,855.62, "depending upon whose calculations the
court accepts." Total marital debts were $39,248. The court also
adopted the following findings of fact for the property
distribution and debt allocation to Barbara:
ASSETS :
Marital home and five acre tract $32,500.00
Personal property from Exhibit "Ap1 $12,665.31
Total assets: $45,165.51
DEBTS :
Loan to construct shop $ 3,218.56
Debts $10,055.00
Total debts $13,773.56
The court adopted the following findings of fact for property
distribution for Gary, providing both Gary's and Barbara's
estimated values for the personal property.
Gary's estimates:
ASSETS
Five acre tract (unimproved) $12,500.00
Personal assets from Exhibit *'A1' $ 4,724.31
Business assets from Exhibit "As' $35,380.00
Total assets: $52,604.31
DEBTS :
Debts
Barbara's estimates:
ASSETS
Five acre tract (unimproved) $12,500.00
Personal assets from Exhibit "Af' $ 6,190.31
Business assets from Exhibit "AM $47,000.00
Total assets: $65,690.31
DEBTS :
Debts
Gary was also awarded the Champion retirement which he valued at
$3,500.
Gary argues that the District Court failed to compute net
worth before dividing the property because the District Court did
not state the marital estate net value in its findings of fact, and
in failing to do so, Barbara was awarded the entire estate. We
disagree.
The district court must distribute the marital property fairly
by using common sense; when the courtts judgment is based on
substantial credible evidence, this Court will uphold that decision
unless there is clear abuse of discretion. Marriage of Scoffield
(l993), 258 Mont. 337, 342, 852 P.2d 664, 668. Before dividing the
marital estate, the court is required to make findings of fact on
all marital assets and liabilities from which can be established a
net worth of the marital estate. Marriage of Dirnberger (1989),
237 Mont. 398, 773 P. 2d 330. We do not require the exact net worth
amount to be stated in the findings of fact where "the cumulative
effect of the findings can be equivalent to a finding of net worth
when relevant factors are considered and adequately set forth by
the trial court." Marriage of Skinner (1989), 240 Mont. 299, 304,
783 P.2d 1350, 1353 (quoting Marriage of Hunter (1982), 196 Mont.
235, 245, 639 P.2d 489, 494).
Before dividing the marital estate, the District Court
considered both partiest personal property estimates and found that
the total personal property value was between $52,769.62 and
$65,855.62, and found debts totaled $39,248. In doing so, the
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court considered relevant factors and adequately set forth these
findings sufficient to allow a finding of net worth.
Gary was awarded real property worth $12,500, including the
debt of $6,000, resulting in a net value of $6,500. If Gary's
personal property values are used, then he received personal
property worth $40,104.31. He was allocated debts totaling
$22,693, resulting in a personal property net value to Gary of
$17,411.31, with a net total of $23,911.31, which is increased to
$27,411.31 after adding his $3,500 Champion retirement account. If
Barbara's values for the personal property are used, Gary receives
real and personal property with a net value of $36,997.31, plus the
Champion Retirement of $3,500, for a net total of $40,497.31.
Depending on which personal property value is used for the personal
property awarded to Gary, he receives slightly less or more than
Barbara. We hold that the District Court considered the net worth
of the marital property before dividing the property.
Gary next argues that he received an inequitable property
division. We disagree.
No formula exists to determine exact distributions and each
case is decided on its own merits, therefore, a court is not
required to make a 50/50 division of the marital estate if the
distribution would be inequitable. Marriage of Herron (1980), 186
Mont. 396, 401-02, 608 P.2d 97, 100. Here, the marital estate
consisted of three large assets: the real property with the marital
home, the undeveloped real property, and the logging business. The
remaining personal property was divided by the parties. The only
income producing asset was the logging business. The court awarded
Gary the logging business, which is reasonable because he has the
skill necessary to continue the logging business. After awarding
Gary the income producing asset, and to fairly apportion the
remaining real property, the court awarded Barbara the real
property with the marital home, and Gary the undeveloped real
property. The court's division of the marital property was based
on substantial credible evidence. We hold that the court did not
abuse its discretion when it determined the marital property
division.
ISSUE 2
Did the District Court err in awarding maintenance to
petitioner?
The District Court awarded maintenance to Barbara, stating
that although she was awarded a portion of the real and personal
property, she still lacks sufficient property to provide for her
reasonable needs with her monthly income of $750 and her monthly
expenses of $780. The court found that since Gary's gross income
increased to $75,000 in 1992, and his monthly expenses were
$3,435.56, he has the financial ability to assist Barbara in her
transition from their married life to life as a single person. The
court ordered that Gary would pay Barbara monthly maintenance of
$400 for 24 months.
Gary argues that the District Court erred in awarding
maintenance because it did not make its findings pursuant to
5 40-4-203, MCA. He asserts that Barbara's testimony reveals she
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is capable of earning more than the court determined because in
years prior to 1991 she was earning more than Gary in his new
logging business, and that she presently has the following job
skills, including her job as a bartender: certified central
processing technician; motel maid; and bookkeeper. He also argues
that he is unable to pay her $400 monthly maintenance because he
was given debts of approximately $29,000 which must be paid on a
monthly basis. Gary contends the evidence reveals that the
District Court's decision was an abuse of discretion resulting in
substantial injustice. We disagree.
The standard of review for maintenance is whether there is a
clear abuse of discretion resulting in substantial injustice.
Marriage of Loegering (1984), 212 Mont. 499, 689 P.2d 260.
Section 40-4-203 (1)(a) and (b), MCA, provides in pertinent
part:
. . .(1)only aifproceedinga for dissolution offorseeking
spouse
In
the court may grant maintenance order
it finds that the spouse
marriage
either
maintenance:
(a) lacks sufficient property to provide for his
reasonable needs; and
(b) is unable to support himself through
appropriate employment ....
When applying the factors in § 40-4-203, MCA, to determine
whether to grant maintenance, the district court considers the
standard of living achieved by the parties during the marriage.
Also, maintenance may be used to gain equitable distributions in
the many diverse fact situations within marital dissolutions, thus
wide discretion is granted to the court. Marriage of Silverman
(1993), 259 Mont. 337, 340, 856 P.2d 533, 535.
In Silverman, this Court upheld the district court's award of
maintenance to the wife, although she was employed and was awarded
the family home with $15,000 in equity, $64,650 in cash, and other
personal property for the following reasons: the parties had
maintained a luxurious standard of living while they were married;
the husband's income continued to be quite high while the wife's
income was modest; and the wife had incurred substantial expenses
by her move back to Arizona to resume employment. Silverman, 856
P.2d at 535.
Here, Gary testified that the couple enjoyed a comfortable
lifestyle due to the income from the logging business. Gary,
having been awarded the income-producing asset, could continue to
earn at least $25,000 in net income per year from the logging
business, and also has retirement sources, such as social security
and the Champion retirement account. Barbara, on the other hand,
would have to support herself with a net income of $5,000 to $6,000
per year with little social security benefits and without any other
supplements. The District Court found that Barbara did not receive
sufficient property to provide for her reasonable needs and that
any possibility of wage increase by locating employment in
Missoula, would be diminished by commuting expenses from Potomacto
Missoula. After 16 years of marriage, the $400 award of
maintenance for two years is reasonable in light of all the
circumstances. Beyond these two years Barbara is left to her own
devices.
We hold that the District Court did not abuse its discretion
in awarding $400 maintenance for the two year period.
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:
June 7. 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:
Clinton H. Kamerer
Kammerer Law Offices, P.C.
101 E. Broadway, Ste. 200
Missoula, MT 59802
Byron W. Boggs
Attorney at Law
336 Ryman
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA