No. 89-429 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

IN RE THE MARRIAGE OF KENNETH JONES, Petitioner and Appellant, and RITA MARIA "GOBERT" JONES, Respondent and Cross-Appellant.

.PPEALFROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John Henson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Arthur D. Agnellino, Missoula, Montana For Respondent: Paul Neal Cooley,Missoula, Montana

Submitted on Briefs: Dec. 21, 1989 ,Decided: March 19, 1990

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### ;:~ustice ~iane G. Barz delivered the opinion of the Court.

Kenneth Jones, petitioner, appeals from the June 13, 1989 decision by the District Court of the Fourth Judicial District, Missoula County, finding that he must pay maintenance to Rita Ann Gobert Jones, respondent, in the amount of $500 per month commencing June 1989 and ending May 1991; $300 per month through May 1991 for the $8,000 in unpaid child support and maintenance; and $500per month commencing in June 1991 until the unpaid child support and maintenance are paid off. Respondent cross-appeals, arguing that the ~istrictCourt erred by failing to grant respondent's trial motions; by modifying the original maintenance order dated July 21, 1988; and by incorrectly determining the amount of unpaid child support and maintenance. Affirmed and remanded for proceedings consistent with this opinion. The essential issue raised by petitioner on appeal iswhether the District Court abused its discretion by denying petitioner's motion to modify the courtgsJuly 21, 1988 order awarding spousal maintenance to respondent. On cross-appeal, respondent raises the following issues: 1. whether the District Court erred by failing to grant respondent's trial motions; 2. whether the District Court erred in not granting respondent's motion todismisspetitionergs motion formodification of spousal maintenance; and 3. whether the District Court erred in setting forth theamount of unpaid maintenance and child support as $8,000. Kenneth and Rita Jones were married approximately twentyseven years before they dissolved their marriage on January 15, 1985. The decree of dissolution reserved all other issues, including the property disposition, until a subsequent date. On December 5, 1986, the court issued its findings of fact, conclusions of law and judgment. In its conclusions of law, the ~istrict Court concluded that the parties have joint custody of the minor child,with Rita as the custodial parent; that Kenneth have reasonable visitation rights;and thatKenneth continuetopay $150 per month in child support and pay for all necessary health costs for the child. The court also divided themarital property and awarded Rita one-half of thisproperty for the sum of $43,594. Theproperty divisionwas amoney judgment againstKenneth and the court ordered that the parties sign all necessary documents to accomplish this division of property. Kenneth subsequently appealed the December 5, 1986 property settlement order to this Court. This Court affirmed the District Court in its opinion of In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350. Kenneth then filed a petition for chapter 7 bankruptcy relief in the United States Bankruptcy Court for the District ofMontana onApril 29, 1988. Kenneth listed Rita and the amount of her December 5, 1986 property settlement of $43,594 as

a dischargeable debt. In light of Kenneth's petition for chapter 7 bankruptcy relief, ~ita filed a motion for spousal maintenance with theDistrict Court on June 14, 1988. On July 21, 1988, after the bankruptcy court had terminated the automatic stay, the District Court issuedanordergranting temporary maintenance toRita inthe amount of $650 per month until November 12, 1988, at which time the court noted that child support would cease as a result of the child reaching age eighteen. The court then found that Kenneth would be able to afford $800permonth inmaintenance beginning in December 1988. The court also foundKenneth incontemptonJanuary 24, 1989 and March 24, 1989 for failing to pay the court ordered maintenance and child supportpayments. On May 22, 1989, Kenneth filed a motion for modification of spousal maintenance after the bankruptcy court discharged Rita's $43,594 property judgment. The District Court entered an order dated June 13, 1989, finding in pertinent part that Kenneth owed $8,000 in unpaid child support and maintenance as of June 1989; thatRita was entitled to $500per month inmaintenance commencing June 1989 and ending May 1991; that Kenneth must pay the $8,000

arrears at the rate of $300 per month until June 1991 and thereafter at the rate of $500 per month until the remaining balance of thearrears ispaid in full;and that failuretopay the ordered amounts may result in Kenneth once again being cited for contempt. Kenneth appeals and Rita cross-appeals from this June 13, 1989 order. The essential issue raised on appeal is whether the District Court abused its discretionby denying Kenneth's motion to modify the court's July 21, 1988 order awarding spousal maintenance toRita.On appeal, this Court must determine whether the District Court abused itsdiscretionby issuing itsmodification orderdated June 13, 1989. Wewill not disturba district court's orderwhen it is based on substantial credible evidence and no abuse of discretion is shown. InreMarriage of Cole (Mont. 1988), 763 P.2d 39, 41, 45 St.Rep. 1965, 1967-68; In re Marriage of Loegering (1984), 212 Mont. 499, 510, 689 P.2d 260, 266. In its findings of fact,the District Court found inpertinent part that Rita had been receiving $337.35 a month since June 1988 for her one-half interest in the Washington real estate contract and that thisamount was not part of thebankruptcy estate,but was considered at the time of the 1986 decree as part of the marital estate to be awarded to Kenneth if he paid the December 5, 1986 property judgment; that Rita had received $4,048.20 from the Washington real estate contract, which was used to defray her attorney fees; that Rita still had a balance of over $6,000 in attorney fees to pay; that the December 5, 1986 property judgment was discharged in bankruptcy, leaving Rita with approximately $24,650.90 less administrative expenses and no assurances as to when and how she would receive this money; that Kenneth asserted

no new facts besides thepayments toRita fromthebankruptcy court to justifyamodificationofmaintenance; and thatassumingKenneth paid the $43,594 due and owing and also assuming a ten percent interest rate, Rita would now have the benefit of approximately $54,492 in thebank andwould also receiveapproximately $5,449.92per year interest or $454 per month indefinitely on this amount. The court also found,however, that under the present status she will receive only $674 per month until 1994, less any administrative expenses, and shewill not have the benefit of any money in thebank. On theotherhand, thecourt found thatKenneth had a monthly income of $1,910, a late model car, and $20,000 equity in a ten acre parcel and homesite near Florence, Montana. The courtconcluded that it had originally awardedanuneven amount of property in lieu of maintenance, but that the original justification for not awarding maintenance is no longer present; that the award of maintenance is appropriate in light of the parties unequal future earning power; that the prospects for reeducating Rita and/or jobpossibilities inher present capacity is limited and her ability to earn surplus income is unlikely. The court then incorporated its July 21, 1988 findings of fact and conclusions of law into the order and determined that maintenance

was equitably required in the amount of $500per month for twentyfour months; and that the $8,000 arrearage shall be paid at the rate of $300per month until June 1991 when Kenneth shall thenpay Rita $500 per month until the remaining balance of the arrearage is paid in full. In lightof theabove, wehold that theDistrict Courtdid not abuse its discretion in awarding Rita maintenance. Substantial credible evidence exists to support the District Court's order. Kenneth nonetheless sets forth gtargumentstl that he was penalized by the District Court for using proper bankruptcyprocedures indischarging his original debt of $43,594 to ~ita and that the District Court erred in evaluating the amount of assets available toRita from thebankruptcy estate and therefore ordered an excessive maintenance award. We find no merit in either of thesearguments. Furthermore,we find ludicrousKenneth's argument thathehad "fixed expenses of approximately $1,900 long before he had any obligation to pay maintenance to [Rita].I1 Kenneth cites his marriage to his current wife, his subsequent purchase of his $85,000 farm house, and the subsequentbirth of his two children by his current wife and her child by a previous marriage as events that took place "yearsbefore the July 21, 1988 maintenance order

was entered." Merely because the final order regarding the property dispositionand Rita's entitlementtomaintenance was not issued until June 13, 1989, does not lessen Kenneth's existing obligation to his former wife and family. After nearly twentyseven years of marriage, Kenneth's obligation to Rita and their children existed lllong before1'his obligation to his current wife and their children and her child by a previous marriage. Kenneth has possibly taken on more than he can afford by purchasing an $85,000 home and a late model car, and by remarrying and having more children. However, since his obligation tohis firstwife and children existed long before his obligation tohis subsequentwife and children, Kenneth will not be allowed to shun these first obligationsby merely acquiring new obligations. The District Court did not overlook Kenneth's newly acquired obligations,but properly considered the new obligations in lightof his original obligations and awarded maintenance accordingly. Contrary towhatKenneth asserts,the courtproperly followed 5 40- 4-203, MCA,which setsout the standardsand factorsthat thecourt must consider when awardingmaintenance. The first issue Rita raises on cross-appeal is whether the District Court erred by failing to grant her trial motions. The District Court issued an order on July 21, 1988,granting Rita $650 per month in maintenance and $150 per month in child support through November, 1988,atwhich timetheminor childwould have reached the age of eighteen. The court also ordered that commencing in December 1988, Kenneth pay $800 per month in maintenance. The order then stated that Upon receiving notice from either party that the Bankruptcy Court has made a final finding with regards to [Rita's] judgment, the Court will consider reduction or elimination of maintenance due to recovery of [Rita s] debt in whole or in part. Otherwise, maintenance will continue until further order of the Court. The bankruptcy court subsequently issued a judgment and Kenneth then filed a motion for modification of spousal maintenance with the District Court. On June 6,1989, a hearing was held before the District Court regardingKenneth's motion formodificationof spousal maintenance. On cross-appeal,Rita apparently argues that shemade a motion in limine in conformancewith 5 40-4-208(2)(b)(i), MCA. The record, however, reveals thatRita objected toKenneth addressing anything other than evidence that would show a substantial change of circumstances that would permit the court to consider Kenneth'smotion for modification of spousal maintenance. The court overruled the objection. In light of the court's statement in its July 21, 1988 order, the orderwas temporary innature. Under these circumstances, the courtwas not required to limit thehearing to evidence pertaining only to proving that a substantial change of circumstances occurred. Kenneth had already established the District Court's requirement of sending notice to the District Court that the bankruptcy court had made a final finding regarding his petition for chapter 7bankruptcy relief. The District Court thereforewas entitled to hear all of the relevant testimony regarding maintenance so as to determine whether Rita was entitled to maintenance and if so, the proper amount. The District Court properly overruled Rita's objection. Rita also argues under this issue that the District Court erred by denying Rita's motion to dismiss Kenneth's motion for modification of spousal maintenance because he failed to provide evidence. Contrary to what Rita asserts and as stated above, the District Court properly heard all relevant evidence before it determined, in light of the factors set forth in 3 40-4-204, MCA, that Rita was entitled to spousal maintenance and the amount thereof. The court therefore did not err by not granting Rita's motion and by determining thatRita was entitled to $500per month in maintenance from June 1989 through May 1991. The second issueRita raiseson appeal iswhether theDistrict Court erred in not granting Rita's motion to dismiss Kenneth'smotion for modification of spousalmaintenance. Rita argues that the July 21, 1988 order is unassailable because of the lapse of time for an appeal. The ~istrict Court clearly indicated in its July 21, 1988 order that it was a temporary order and subject to revision upon a final judgment from the bankruptcy court. Upon receiving a final judgment from the bankruptcy court,Kennethproperly filed amotion for modification of spousal maintenance pursuant to 5 40-4-208, MCA, on May 22, 1989. As stated above, the court then properly considered all relevant evidence and modified the maintenance accordingly in its June 13, 1989 order. The District Court therefore did not err in denyingRita's motion to dismissKenneth's motion for modification of spousalmaintenance. The last issue raised on appeal by Rita is whether the District Court erred in setting forth the amount of unpaid maintenance and child support as $8,000. ~ita argues that Kenneth owes $9,818.33 in arrearage plus legal interest. Upon reviewing the record, we find evidence supporting the conclusion that Kenneth currentlyowes $9,840.06 in unpaid child support and maintenance. In particular, the record supports the following amounts of unpaid child support and maintenance: Pre-June 13, 1988 child support arrearage: June 1988maintenance:

($650/month 

### x 18 days)July 1988 toNovember 1988 maintenance:

($650/month

### x 5months) July 1988 to November 1988 child support: ($150/month 

### x 5months) December 1988 to May 1989 maintenance:

($800/month

### x 6months)

Thecourtgranted Kenneth $1,600 credit whichwould leaveabalance of $9,840.06 in arrearsplus legal interest. The amount indispute is apparently the $2,250 in the pre-June 13, 1988 unpaid child support. However, considering the absence of sufficient findings of fact on this issue, we must remand the case to the District Court to determine the proper amount of unpaid child support and maintenance. Rita also contends that she is entitled to damages and attorney fees in light of Rule 32,M.R.App.P. Rule 32,M.R.App.P. provides: If the supreme court is satisfied from the record and the presentation of the appeal in a civil case that the same was taken without substantial or reasonable grounds, such damages may be assessed on determination thereof as under the circumstances are deemed proper. When a reasonable ground for an appeal exists,a respondent is not entitled to recover damages under Rule 32,M.R.App.P. searight

### v. Cimino (Mont. 1988), 748 P.2d 948, 952, 45 St.Rep. 46, 52; Erdman



### v. C & C Sales, Inc. (1978), 176 Mont. 177, 184, 577 P.2d 55, 59. In the present case, the question of whether the ~istrict Courtabused its discretionby denying Kenneth's motion for modification of spousal maintenancewas reasonably in issue. In addition,Rita also contends that under Rule 11,M.R.Civ.P., she is entitled to her attorney fees and costs. We find no basis for Rita asserting this issue on appeal. Affirmed and remanded forproceedings to determine theproper amount of unpaid child support and maintenance.

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We concur: 

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