NO. 93-422 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

IN RE THE MARRIAGE OF 

JOSEPH MARTIN BARKER, 

Petitioner and Appellant, 

and 

KRISTEEN MAUD BARKER, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Thirteenth ~udicial District, 

In and for the County of Yellowstone, 

The Honorable Russell K. Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jerrold L. Nye; Nye & Meyer, ~illings, Montana 

For Respondent: 

W. Corbin Howard, Attorney at Law, Billings, 

Montana 

Filed: 

Submitted on Briefs: December 9, 1993 

~ecided: March 10, 1994 
Justice John Conway ~arrison'delivered the Opinion of the Court. 

Appellant Joseph Martin Barker (Joseph) appeals the 

distribution of marital property, the maintenance award to Kristeen 

Maud Barker (Kristeen), and the findings of fact and conclusions of 

law as set forth by the Thirteenth Judicial District Court, 

Gallatin County. We affirm. 

Three issues are before this Court: 

1. Did the District Court equitably divide the marital 

property? 

2. Did the District Court err by awarding maintenance to 

Kr isteen? 

3. Did the District Court err by adopting, nearly verbatim, 

KristeenJs proposed findings of fact and conclusions of law? 

Joseph and Kristeen were married on September 2, 1967. They 

live in Billings, Montana, and have two children, both of whom are 

now adults and enrolled in college. For most of the marriage, 

Joseph was an insurance salesman. After two years of being 

unemployed, he is again selling insurance. Joseph is also a 

reservist in the National Guard. Kristeen was a school teacher 

until 1982, when she quit to become a housewife. Kristeen is now 

working at a flower shop. 

This case arises from the dissolution of the couple's twentysix year marriage. Following a hearing on April. 22, 1993, the 

District Court issued its findings of fact, conclusions of law and 

decree on June 15, 1993. The ~istrict Court valued the parties' 

marital estate (net) --the majority of which was the family home--at 
$53,300. It awarded $45,055, or 84 percent of the marital estate, 

to Kristeen. The remaining $8,545, or 16 percent of the marital 

estate, went to Joseph. In addition, the court awarded Kristeen 

maintenance of $150 per month "until she remarries, cohabits, dies, 

or for five years, whichever occurs first." Joseph appeals. 

I 

Did the District Court equitably divide the marital property? 

Joseph and Kristeen have two assets of monetary significance: 

their home and Joseph's forthcoming military pension. Joseph and 

Kristeen purchased their home in 1974. At the time of trial, the 

home was worth $60,000; however, it was encumbered by an $18,000 

mortgage. From 1991 through 1993, Joseph was not employed. The 

couple fell seriously behind on its mortgage payments on three 

occasions. To avoid foreclosure, Kristeen and Joseph borrowed 

$6,500 from relatives. Additionally, Kristeen borrowed $3,000 from 

First Interstate West Bank. 

Kristeen has remained in the family home and has made monthly 

mortgage payments of $305 since the couple separated in May 1992. 

She wants to keep the home. In August 1992, just before the house 

was to be sold in a foreclosure sale, Joseph told Kristeen that she 

should let the bank foreclose on the house. Instead, Kristeen 

secured the help of a clergyman to co-sign for a $3,000 loan and 

saved the home from foreclosure. 

Joseph and ~risteen agreed that Kristeen should keep the 

family home. However, at trial, Joseph requested one-third of the 

homers equity, or $14,000, and suggested that Kristeen be given six 
months to pay him that amount. To obtain the $14,000, Joseph was 

willing to participate in refinancing the home. The District Court 

awarded Kristeen the family home, including the total equity and 

debt associated with the home. 

According to Joseph, the District Court's total award of 

equity to Kristeen is not supported by the facts or by any Montana 

case law dealing with the equitable division of home equity. 

Joseph argues that he and Kristeen are facing financial 

difficulties, and neither of them can pay their expenses. Joseph 

points to the necessity of obtaining an additional loan during the 

parties' separation as evidence that Kristeen cannot make the 

mortgage payments. Therefore, selling the house "is the only 

reasonable alternative for the parties" and it would "relieve the 

wife of debt and make assets available to her for her expenses." 

Joseph draws an analogy between this case and In re Marriage 

of Martens (1981), 196 Mont. 71, 637 P.2d 523. In Martens, the 

wife was awarded two-thirds of the home equity and the husband onethird. In that case, we stated: 

The distribution of the equity in the house was based on 

the wife's acceptance of responsibility for it in the 

months prior to trial, her ability to continue this 

responsibility, and her desire to continue to do so when 

the husband did not express such a desire. 

Martens, 637 P.2d at 526. Joseph also refers us to In re Marriage 

of Rogers (l987), 226 Mont. 163, 734 P. 2d 677. In Roqers, this 

Court ordered the sale of the family home and an equal division of 

the proceeds. Kristeen, in turn, refers us to cases where spouses 

have received equitable, though unequal, property distributions. 
See In re Marriage of Hecht (l982), 199 Mont. 363, 649 P.2d 1257 

(wife received the entire equity in the home and 81 percent of the 

partiesr net worth) ; In re Marriage of Sirucek (1986) , 219 Mont. 

334, 712 P.2d 769 (this Court approved an 18 percent to 82 percent 

split of the parties1 net worth). 

In the present case, the District Court also awarded Kristeen 

45 percent of Joseph's military pension, which he will only be 

eligible to receive if he completes five more years of service in 

the Reserves. The court noted that Kristeen receives 45 percent of 

nothing if Joseph fails to complete his twenty-year service 

requirement. While Joseph does not specifically challenge the 

percentage award of his military pension, he does challenge the 

overall "vastly disproportionateI1 division of property considering 

the parties' "equal contributionu to the marital estate. 

In reviewing factual findings which divide marital property, 

our standard of review is "whether the district court's findings 

are clearly erroneous." In re Marriage of Danelson (l992), 253 

Mont. 310, 317, 833 P.2d 215, 219 (citations omitted). We review 

the district court s conclusions of law de and examine whether 

the court correctly interpreted the law. Danelson, 833 P.2d at 

Montana courts analyze the allocation of marital property 

under L 40-4-202(1), MCA, which provides in pertinent part: 

In making apportionment, the court shall consider the 

duration of the marriage and prior marriage of either 

party; the age, health, station, occupation, amount and 

sources of income, vocational skills, employability, 

estate, liabilities, and needs of each of the parties; 

custodial provisions; whether the apportionment is in 
lieu of or in addition to maintenance; and the 

opportunity of each for future acquisition of capital 

assets and income. The court shall also consider the 

contribution or dissipation of value of the respective 

estates and the contribution of a spouse as a homemaker 

or to the family unit. In dividing property acquired 

prior to the marriage: property acquired by gift, 

bequest, devise, or descent; property acquired in 

exchange for property acquired before the marriage or in 

exchange for property acquired by gift, bequest, devise, 

or descent; the increased value of property acquired 

prior to marriage; and property acquired by a spouse 

after a decree of legal separation, the court shall 

consider those contributions of the other spouse to the 

marriage, including: 

(a) the nonmonetary contribution of a homemaker: 

(b) the extent to which such contributions have 

facilitated the maintenance of this property; and 

(c) whether or not the property division serves as 

an alternative to maintenance arrangements. 

The district court must achieve an equitable distribution of the 

marital estate, not an equal distribution. In re Marriage of 

Shelton (1986), 219 Mont. 456, 459, 712 P.2d 782, 784. We grant 

the district court broad discretion to equitably apportion the 

marital property. Sirucek, 712 P.2d at 774. 

The District Court rejected Joseph's request for $14,000 of 

equity in the home, finding that: 1) Joseph presented no evidence 

of the feasibility of refinancing the home; 2) the parties have 

poor credit and it would be highly unlikely that either or both of 

them could afford refinancing and associated costs; 3) since the 

separation, the home has only been saved through Kristeen's 

unilateral efforts: and 4) a decree requiring Kristeen to pay 

Joseph $14,000--absent refinancing the family home, which would 

double the existing encumbrance--would force Kristeen from her 

home. The court also declined to award Joseph equity in the home 

because he has a "substantially greater earning capacity" than 
Kristeen; because Kristeen saved the home from foreclosure and if 

it had been up to Joseph, there would be no equity to divide; 

because Kristeen wishes to stay in the family home; and because 

Joseph would receive very little net present value on a sale of the 

home. 

The court found that Joseph's expenses were overstated, 

because he now lives with another person who is employed full-time 

and contributes to their joint expenses. The court considered 

Kristeen's chances of returning to the teaching profession--noting 

her twelve-year absence from teaching and that she has an 

application on file with the school system--as opposed to the 

likelihood that she will remain employed in the flower shop. The 

court noted that Kristeen voluntarily quit her position as an 

English teacher because she and Joseph mutually agreed that she 

should stay home to care for the children. The court also found 

that Kristeen has no investments or savings. 

It is apparent that the District Court considered Kristeen's 

monetary and non-monetary contributions to the marriage and marital 

home over the twenty-six years of the marriage. The findings of 

fact illustrate the court's thorough consideration of the factors 

set out in 5 40-4-202(1), MCA. The District Court's findings as to 

the division of marital property are well supported by the record 

and are not clearly erroneous. We hold that the ~istrict Court 

properly followed g 40-4-202 (I), MCA, and correctly interpreted the 

law. 
Did the District Court err by awarding maintenance to 

Kristeen? 

The court awarded Kristeen $150 per month maintenance "until 

she remarries, cohabits, dies, or for five years, whichever occurs 

first." After taxes, the total maintenance award will come to $123 

per month. 

A maintenance award will not be overturned unless the district 

court's findings are clearly erroneous. In re Marriage of Sacry 

(l992), 253 Mont. 378, 381, 833 P.2d 1035, 1037 (citation omitted). 

Maintenance is governed by g 40-4-203, MCA. That statute provides 

that the court can award maintenance if it finds that the spouse 

seeking maintenance: 

(a) lacks sufficient property to provide for his 

reasonable needs; and 

(b) is unable to support himself through appropriate 

employment . . . (2) The maintenance order shall be in such amounts 

and for such periods of time as the court deems just, 

without regard to marital misconduct, and after 

considering all relevant facts including: 

(a) the financial resources of the party seeking 

maintenance, including marital property apportioned to 

him, and his ability to meet his needs independently . . 

(b) the time necessary to acquire sufficient 

education or training to enable the party seeking 

maintenance to find appropriate employment; 

(c) the standard of living established during the 

marriage ; 

(d) the duration of the marriage; 

(e) the age and the physical and emotional condition 

of the spouse seeking maintenance; and 

(f) the ability of the spouse from whom maintenance 

is sought to meet his needs while meeting those of the 

spouse seeking maintenance. 

Section 40-4-203, MCA. 
Joseph argues that before a court makes an award of 

maintenance, there must be an equitable division of marital 

property. See In re Marriage of Eide (1991), 250 Mont. 490, 821 

P.2d 1036. He further contends that a reversal of the property 

division also requires a reversal of the maintenance award. See 

Vivian v. Vivian (1978), 178 Mont. 341, 583 P.2d 1072. Because we 

determined that the property division in this case was equitable, 

we are not reauired to reverse the court's maintenance award. See 

Vivian, 583 P.2d at 1075 (emphasis added). 

According to Joseph, maintenance is only required when the 

spouse seeking maintenance lacks sufficient property to provide for 

her reasonable needs and she is unable to support herself through 

appropriate employment. See § 40-4-203, MCA. Joseph suggests that 

because Kristeen is a certified teacher, "there is no reason to 

doubt that she will eventually find a position." Joseph further 

challenges the court's finding that he has the ability to pay 

maintenance. Specifically, he contests the District Court's 

determination of his income. 

Joseph contends that Kristeen created her financial situation 

by refusing to sell the house, an encumbrance which he suggests is 

not a reasonable need. See In re Marriage of Garner (1989), 239 

Mont. 485, 781 P.2d 1125. In Garner, this Court held that: 

the trial court did not abuse its discretion in failing 

to order maintenance payments which are not necessitated 

by Margaret's "reasonableu needs but rather through her 

voluntary decision to choose a piece of property which 

consumed income. 

Garner, 781 P.2d at 1128. However, as Kristeen correctly asserts, 
Garner has no relevance here. Garner dealt with a wife who held 

recreational property at Flathead Lake. She was a law student in 

California with a promising employment future. In fact, as a first 

year law student, she made at one point $800 per week working for 

a law firm. In addition, she also received nearly $100,000 in cash 

as part of her property award. 

In the case before us, we are dealing with a woman of modest 

means. While Kristeen is a certified teacher, she is currently 

employed as a salesperson for a Billings florist. After taxes, her 

net monthly income is $859. Her mortgage payment is $305 per 

month. 

The District Court determined that Kristeen's listed monthly 

expenses of $1,682 are reasonable and necessary "especially 

considering the allocation of over 80 percent of the parties' debt 

to her." Although Kristeen's teaching credentials are on file with 

the school district and she "constantly" inquires as to whether any 

teaching positions are available, the court found that Kristeen has 

"no prospect of [her] income changing substantially." 

The court found that Kristeen is "unable to fully support 

herself through her present employment." The District Court 

further considered: Kristeen's financial resources; the property-- 

including equity and debt--apportioned to Kristeen; Joseph's 

ability to meet his own needs; Joseph's current employment/net 

monthly income of $1,176, based on his commissions after two months 

of work and his monthly National Guard stipend and annual training 

pay; that Joseph lives with a person who is employed full-time and 
contributes to their joint expenses; and that Joseph and the person 

with whom he lives are jointly contributing to the support of her 

adult children. 

The record clearly supports the District Court's maintenance 

award of $150 per month, for a period not to exceed five years, to 

Kristeen. The court fully considered the factors set out in 9 40- 

4-203, MCA, when awarding maintenance to Kristeen. We hold that 

the District Court's findings are not clearly erroneous. 

Did the District Court err by adopting, nearly verbatim, 

Kristeenls proposed findings of fact and conclusions of law? 

Joseph contends that, with two minor exceptions--reduction of 

maintenance from $200 to $150 per month and denial of attorney's 

fees to Kristeen--the District Court erred by adopting Kristeenls 

findings of fact and conclusions of law verbatim. In support of 

his contention, Joseph cites In re Marriage of Kukes (1993), 258 

Mont. 324, 852 P.2d 655. According to Joseph, Kukes stands for the 

following proposition: 

[Wlholesale acceptance by the District Court of one 

party's findings of fact and conclusions of law is error 

as it indicates a lack of proper consideration of the 

facts and failure to use independent judgment. 

Joseph is mistaken. In m, we stated that 

[elrror occurs when the court accepts one party's 

proposed findings of fact without proper consideration of 

the facts and where there is lack of independent judgment 

by the court. 

Kukes, 852 P.2d at 657 (citations omitted). First, the District 

Court did not accept Kristeen's findings of fact "wholesale." In 
addition to independently determining the maintenance award and 

denying Kristeen attorney's fees, the court also determined that 

Joseph would receive his grandfather's desk and a branding iron 

collection purchased by the parties, and that Kristeen would keep 

a ring originally owned by Josephts grandmother. 

Second, our holdings under Issues I and I1 establish that the 

District Court properly considered the facts before it, correctly 

applied the law to the facts, and correctly interpreted the law. 

Unquestionably, the District Court exercised independent judgment 

when making its findings of fact and conclusions of law. 

Af f irmed. 

We9 concur: 

r, 
Justice Terry N. Trieweiler specially concurring. 

I concur with the majority's decision to affirm the District 

Court for the reason that I conclude that the District Court's 

findings were not clearly erroneous and its distribution of marital 

property was not an abuse of discretion. However, I do not 

subscribe to all of the reasons set forth in the majority opinion. 

Specifically, I am unimpressed by the fact that Joseph lives 

with another woman to whom he pays rent, or that he occasionally 

provides financial assistance to her family. I fail to see how any 

of those facts are relevant to whether or not the marital estate 

was equitably distributed. 

I conclude that it was equitable for Kristeen to receive the 

marital home, including its equity, because it was due solely to 

her efforts that the equity in the home was preserved by avoiding 

foreclosure. I consider this a valid consideration pursuant to 

5 40-4-202(1), MCA, which allows the district court to consider a 

spouse's contribution to the estate when distributing the estate. 

For this reason alone, and because there is no serious 

disagreement with the District Court's distribution of the pension 

accumulated by Joseph during the couple's marriage, I would affirm 

the District Court's distribution of the marital estate. 

Based on my conclusion that the estate was properly 

distributed and the additional evidence that following distribution 

Xristeen's income was still less than her living expenses, I also 

agree that there was sufficient evidence to support the District 

Court's conclusion that Kristeen was entitled to maintenance 
pursuant to § 40-4-203, MCA. I do not agree with all of the 

conditions placed on the continuation of that maintenance. 

However, those conditions have not been appealed. 

Therefore, I would affirm the judgment of the District Court. 
March 10, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Jerrold L. Nye 

NEY & MEYER 

3317 Third Ave. North 

Billings, MT 59101 

W. CORBIN HOWARD 

Attorney at Law 

P.O. Box 7177 

Billings, MT 59103-7177 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA I