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;

Montana

Geiszler & Newcomer, Missoula,

For Respondent:

Raymond P. Tipp; Tipp, Frizzell & Buley, Missoula,

Montana

Filed:

Submitted on Briefs: August 26, 1993

Decided: October 5, 1993
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: ,

7
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