No. 86-540

INTHE SUPREME COURT OF THE STATEOF MONTANA
1987

INRE THEMARRIAGE OF PAULW. HERRON, Petitionerand Respondent, and
SHARONM. HERRON, Respondentand Appellant.

APPEAL FROM: DistrictCourt of the Eleventh JudicialDistrict, In and for the County of Flathead, TheHonorableLei£ Erickson, Judgepresiding.
COUNSELOF RECORD:
ForAppellant:
I. JamesHeckathorn, Kalispell,Montana
For Respondent:
M. Dean Jellison,Kalispell,Montana

Filed: Submitted onBriefs: Feb. 26, 1987 Decided: April 30, 1987Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Sharon M. Herron appeals from a judgment following remand entered by the District Court, Eleventh Judicial District,Flathead County. We affirm. This causewasbefore us inHerronv. Herron (19801,186 Mont. 396, 608 P.2d 97. Therein we set forth the pertinent facts relating to the marriage of the parties. We reversed the District Court and remanded it for retrial on the issues ofproperty distributionandmaintenance. As to the judgment entered by the District Court after remand, Sharon appeals from the provisions of that judgment involving the division of the marital property, the provision for maintenance of the wife, and the support provision for the minor child of theparties. Relating to the marital property division, our remand indicated that both parties should share equally in the portion of the value of the property attributable to contribution from the marriage and appreciation during the marriage, but that the parties should not share equally in the total value of the property since much of the marital assets came to the marriage principally as gifts for Sharon from her deceased father, George Robbin. 186 Mont. at 402, 608P.2d at 102. On remand, the District Court found that the net value of the marital estate subject to distributionwas $508,389, summarizedas follows: Ranch $200,000.00 Lakeplace 40,000.00 Medical practice 75,089.00 Rohbin estate 104,500.00 Gold coins 32,000.00ThirdAvenue Easthome 55,000.00 Savings account 1,800.00
TOTALMETVALUE $508,389.00
The District Court then divided the net value of $508,389as follows: To Paul Medical practice $ 75,089.00 Husband's portion coin collection 32,000.00 One-halfRobbin estate 52,250.00

To Sharon
Ranch $ 200,000.00 House 55,000.00 One-halfRobbin estate 52,250.00 Lake lot 40,000.00 Savings 1,800.00

Sharon objects to the division of marital property on the grounds that she is required to pay Paul $52,250 out of the sale of the assetsgiven to her; that the award does not take into account that sale of the ranch will require costs of commissions and expenses; and that the valuation of $104,500 determined by the court to be remaining from the George Robbin's estate for division is contrary to the evidence. Sharon maintains that the remaining estatemerely consists of stock plus a savings account and that the other assetshavebeen distributed or dissipated. Contrary to Sharon's contentions,however, the District Court in its findings carefully considered the assets of the marital estate, including the lakeplace, thevalue of Paul's medical practice, the sale of the Kalispell medical arts building, and the George Robbin estate. The District Courttraced the acquisition of the assets, beginning with contributions from George Robbin when he was alive, amounts of property received from his estate, contributions made by the parties during their marriage which increased to the value of themarital assets,and the effect of appreciation. In accordance with our remand, it determined the value of direct gifts from George Robbin totalling $117,500, and determined that this amount should be credited to Sharon's favor in distributable marital assets. In distributing property, the courtwas facedwith the biggest single asset, thatof the ranch,which ithad to consider inrelationtoan equitable division. In its conclusion of law,the District Court stated: The SupremeCourt remand also directs this court to consider assets received by devise or inheritance as made principally for respondent's [Sharon] benefit. 608 P.2d at 100. However, this court found it necessary to split the inherited assets now remaining in the Robbin estate. The twomajor assets available for distribution in the marital estate are the ranch and the Robbin estate. An award of both of these assets to respondent entirelywould result inan inequitable division of the assets in view of the joint marital contributions and appreciation factor during the marriage. 608 P.2d at 102. The parties chose to divide the gold coin collection equally and Respondent did not rebut Petitioner's contention that the remainder of the two certificates of deposit were depleted on joint obligations. The division of the remainder of the Robbin estate is reflective of an equitable value allocation of the available assets rather than a finding that the parties share equal entitlement to the estate assets.
It is clear that the District Court followed in thebest manner available thedirectionsof ourremand individing and allocating values to the parties out of themarital estate. The findings of fact by the District Court cannot be setaside by us unless they are clearly erroneous, Rule 52, Montana Rules of Civil Procedure. The conclusionsof lawby the DistrictCourt are reasonablebased upon its findingsand are equitable in the circumstances. We therefore affirm the division of the maritalpropertyby the DistrictCourt. The next issue raised by Sharon is the award of maintenance. In the first decision of the District Court, Paulwas ordered topay Sharon the sum of $400 per month for
a period of four years. On remand, the District Court determined that Paul should pay Sharon maintenance in the amount of $1,000 per month for a period of two years commencing in July, 1986. Sharon attacks the maintenance award upon the ground that it is insufficient; that she has but $7,000 per year income of her own; and that she is required to pay the mortgage payments, the delinquent taxes and the costs of repairing the ranch house to make it saleable, in addition to her own living expenses and that of their child. Yet the District Court was careful in its findings to consider the factors set out in 5 40-4-203, MCA, regarding maintenance. In our remand,we requested the District Court to consider carefully the advisability of placing any time restrictions on the duration of maintenance payments. 186 Mont. at 406, 608P.2d 102-103. After determining the distribution of the parties' marital property, the District Court considered the assets awarded and what theymight eventually provide in theway of financial security at a comfortable level for Sharon. The District Court recognized that a certain adjustment period would be necessary until she would be able to convert the assets to income producing property. On that ground the District Court determined, in consideration of her age,her loss of professional skills, and other factors, that shewould need maintenance for two years after which the availability of her more than adequate resources would provide maintenance and should provide security. The District Court stated in its conclusions that the distributionwas intended tobe ameans by which Sharon could establish independent financial security fitting her station in life without theneed for indefinite maintenancewhich, in the light of petitioner's job situation, could not be assured. Since the case first came to us, it appears that Paul'smedical practice had been severely limited due to his loss of rights at thehospital and that thepossibility of an assured income from his medical practice was "tenuous at best.

### " In resolving the problem by awarding maintenance in the
sum of $1,000 per month for two years, the District Court took into account the earning capability of the husband,his assets available to make those payments, and the period of adjustment necessary for the wife to establish her own independent security. This case illustrates the constant problem of district courts inmarital dissolutions, that is, the shaping of the most equitable and least futile solution for a problem created by imperfect people in imperfect situations. We hold that the District Court acted properly inmaking the maintenance award. The final issue raised by Sharon is that the District Court did nothing about the support payments due the wife from the husband. The parties have four children, three having reached majority, and the fourth child is 17 years old, with a fairly severe learning disability. She is probably unemployable and requires the care of her mother. The former award to Sharon as support money for this child
was $300 per month. The evidence here indicates that the husband has been paying Sharon $225per month. The DistrictCourt on remand refused to consider the issue because it was outside the scope of our order of remand. There isno issue therefore upon which we can act with respect to the support money payments. Whatever rights or obligations accrue to either of the parties arising out of the original order of support money for the minor child are undisturbed by the decision of the District Court on remand, and by this Opinion. We affirmthe DistrictCourt.