No. 94-391

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

IN RE THE MARRIAGE OF

RAYMOND E. WHITE,

Petitioner/Respondent,

and

PATRICIA N. WHITE,

Respondent/Appellant.

AUG241895

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Joan Meyer Nye, Nye & Myer, Billings, Montana

For Respondent:

Gregory R. Todd, Hanson, Roybal, Lee & Todd,

Billings, Montana

Filed:

Submitted on Briefs: May 25, 1995

Decided: August 24, 1995
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from the order of dissolution and attendant

findings of facts and conclusions of law handed down by the

Thirteenth Judicial District Court, Yellowstone County. We affirm.

Appellant presents four issues for review:

I . Did the District Court abuse its discretion in its

division of the net marital estate?

II. Did the District Court abuse its discretion by

denying maintenance to Patricia?

III. Did the District Court abuse its discretion by not

awarding Patricia attorney's fees?

IV. Did the District Court abuse its discretion in

awarding Raymond all of the income tax dependency

exemptions for the couple's children?

The parties were married on December 12, 1970 and separated

approximately June 18, 1993. The couple have four children, ages

21, 18, and twins, 17. (Three of these children are issue of the

union.) During most of the marriage Patricia White (Patricia) was

a homemaker. However, in May of 1993 she graduated with a degree

in special education training, but has only worked as a substitute

teacher sporadically in the Billings area. Patricia works as a

van-driver/maid for the War Bonnet Inn making $4.75 per hour

because she says that she has been unable to find permanent

employment in her field.

Raymond White (Raymond) has worked for UPS for fourteen years

and at the time of the bench trial he was a supervisor in the

Sparks, Nevada, area. During 1993, Raymond was on a special

assignment in Nevada and incurred many expenses which were or will

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be reimbursed by UPS.

There is no argument concerning custody as all involved agree

that joint custody is in the best interests of the children.

Patricia is the primary custodial parent. The court directed

Raymond to pay $1,085.00 for all three children and if the son

decided not to finish school but become emancipated, Raymond would

pay only $843.00.

The court denied Patricia's request for maintenance and for

attorney's fees. Patricia appeals.

Did the District Court abuse its discretion in its division of

the net marital estate?

Patricia argues that the District Court did not value the

property correctly and did not accept her valuations of certain

items. Patricia believes that the court should have accepted her

valuation because she had items appraised and Raymond did not.

Raymond argues that the District Court was not bound to accept

Patricia's valuations of property even though she had items

appraised.

District courts have wide discretion in dividing a marital

estate as long as it is done equitably. In re Marriage of Rada

(1994), 263 Mont. 402, 869 P.2d 254. District courts are required

to make an "equitable distribution" of the marital estate, but that

does not necessarily mean courts are bound to make an equal

distribution. Rada 263 Mont. at 405, - I 869 P.2d at 256; § 40-4-202,

MCA. A district court's findings of fact regarding division of the

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marital estate will not be disturbed unless clearly erroneous. in

re Marriage of Rock (1993), 257 Mont. 476, 850 P.2d 296. As long

as the district court's judgment is based upon substantial credible

evidence, this Court will not alter that judgment unless there is

a clear abuse of discretion. In re Marriage of Scoffield (19931,

258 Mont. 337, 852 P.2d 664.

The main contention here is the amount of money that Raymond

borrowed twelve days before trial. Patricia argues that Raymond

borrowed $55,000 in a consolidation loan twelve days before trial

and paid off the house loan of $26,740.65, and another loan for

stocks at $15,789.85, but he did not account for approximately

$12,400 from the total borrowed. Patricia contends that because

the District Court included the entire $55,000 as a marital debt

attributable to Raymond, that she has been deprived of thousands of

dollars in assets.

A review of the record in this case shows that when the court

made the final tally of assets and debts, Patricia had $20,000 more

in assets than Raymond. The court fairly attributed to Raymond the

entire $55,000 debt based upon the court's acceptance of Raymond's

explanation of what he paid with that money. Raymond testified and

submitted a list of what he paid with the $55,000.

Further, simply because the court did not accept Patricia's

appraised value of certain items of the couple's personal property,

it does not follow that the division of the marital estate was

unfair or that Raymond's valuation was in error. The court was not

required to accept the sworn testimony of Patricia's expert. In re

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Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456. The record

reveals that Patricia's "expert" was an ex-boyfriend who appraised

Raymond's tools but did not have as much professional experience in

such valuation as Raymond who had once owned and operated a service

station.

There is nothing in the record which shows the court's

findings to have been clearly erroneous. The record reveals

substantial evidence to support the District Court's use of

Raymond's evaluations. We hold that the District Court did not

abuse its discretion in its division of the net marital estate.

II.

Did the District Court abuse its discretion by denying

maintenance to Patricia?

Patricia argues that the District Court should have awarded

her maintenance because her financial need exceeds her income.

Raymond argues that Patricia has a college degree but has not

looked for work in her field.

The District Court has discretion as to whether to award

maintenance, and we will not set that decision aside unless the

court's clear error constitutes an abuse of discretion. In re

Marriage of Tahija (1992), 253 Mont. 505, 833 P.2d 1095. Property

dispositions are generally preferred over maintenance in marital

dissolution matters. In re Marriage of Smith (19931, 260 Mont.

533, 861 P.2d 189. As mentioned before, here, the court awarded

Patricia $20,000 more in assets, including the debt-free family

home.

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The court considered the elements of § 40-4-203, MCA, in

deciding the maintenance issue and came to the conclusion that both

parties were living beyond their incomes and that Patricia could

have found a teaching job had she put some effort into obtaining

employment in her chosen field. The record bears out the court's

evaluation. Patricia graduated with honors with a degree in

special education, yet she is working as a van-driver/maid. She

admitted at trial to not completing her placement file and to not

obtaining letters of recommendation. She also spent ten days in

California in the spring of 1993 at the prime time to apply for

teaching jobs. Therefore, we conclude that the District Court did

not abuse its discretion in failing to award Patricia maintenance.

III.

Did the District Court abuse its discretion by not awarding

Patricia attorney's fees?

Patricia argues that she is unable to pay her attorney's fees.

Raymond argues that he cannot pay either. Section 40-4-110, MCA,

makes the award of attorney's fees in dissolutions permissive with

the court. In re Marriage of Spence (1993), 257 Mont. 188, 849

P.Zd 161.

Here, the court made a finding that both parties were living

beyond their means and that Patricia had the potential to obtain a

professional position. We have held that when neither party is

better able to pay attorney's fees, each party should be

responsible for his or her own fees. In re Marriage of Hall

(1987), 228 Mont. 36, 740 P.2d 684.

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We hold the District Court did not abuse its discretion by

failing to award Patricia her attorney's fees.

IV.

Did the District Court abuse its discretion in awarding

Raymond all of the income tax dependency exemptions for the

couple's children?

Both parties sought the exemptions for the couple's three

minor children. The court awarded all exemptions to Raymond who is

paying $1,085.00 per month child support. The court heard

substantial evidence concerning the couple's property and incomeearning potential and decided to award the exemptions to Raymond.

Patricia has cited no authority for her argument that she should

have received these exemptions.

The decision to award income tax dependency exemptions is not

a finding of fact nor a conclusion of law, but is made within the

discretionary power of the court to reach an equitable property

decision. Marriase of Rock, 850 P.2d at 298. We will not disturb

these discretionary rulings by the court unless the court abused

its discretion. Marriacre of Rock, 850 P.2d at 298. Patricia has

provided us with no persuasive legal argument to justify her

assertion that the court abused its discretion. Therefore, we

conclude that the court did not abuse its discretion in awarding

Raymond exemptions for the couple's three children.

Affirmed.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

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precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to the

West Publishing Company.

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order was sent by United States mail, prepaid,

August 24, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified

to the following named:

Joan Meyer Nye

NYE & MEYER, P.C.

3317 Third Avenue North

Billings, MT 59101

Gregory R. Todd

HANSON & TODD

Transwestem II Building, Suite 205

404 North 31st Street

Billings, MT 59101

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA

RV. YI.+-T?zJh

Deputy -