NO. 93-050

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

IN RE THE MARRIAGE OF

NORMAN R. SILVERMAN,

Petitioner and Appellant,

and

MARCIA M. SILVERMAN, ,: ,;;';I

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Respondent and Respondent.

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STATE OF MONTANA

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus,

The Honorable Roy C. Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Craig R. Buehler, Lewistown, Montana

For Respondent:

Torger S. Oaas, Lewistown, Montana

Filed:

Submitted on Briefs: June 1, 1993

Decided: July 13, 1993
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Norman Silverman appeals from the portion of the decree

dissolving his marriage to Marcia Silverman which requires him to

pay her maintenance. We affirm the decree entered by the District

Court for the Tenth Judicial District, Fergus County.

The issue is whether the court erred in awarding maintenance

to Marcia Silverman.

The parties were married in 1986 and separated in July 1990.

No children were born of their union, although both have children

from previous marriages.

Norman Silverman, who was fifty-three years old at the time of

the dissolution, is a physician specializing in radiology. Marcia

Silverman, who was thirty-seven years old at the time of the

dissolution, was employed prior to the marriage selling X-ray and

diagnostic medical equipment. During the marriage, the parties

moved to Lewistown, Montana, where Norman ran the radiology

department at the local hospital. Norman's income rose from

$40,000 in 1986 to $385,000 in 1990. After moving to Lewistown,

Marcia did not seek employment outside the home, but served as a

homemaker, mother, and civic volunteer.

When the parties separated, Marcia moved back to Arizona,

where she had lived prior to this marriage. She became re-employed

in her field with an annual base salary of $24,000. Norman moved

to Texas, where he contracted to supply radiology services to a

rural hospital for approximately $400,000 per year.

2
The District Court found that the parties had marital assets

worth $903,000 and debts of $727,900. The assets included two

homes in Lewistown and one in Eagle Bend, outside Bigfork, Montana.

The court further found that the vast majority of the net worth of

$175,000 was acquired during the marriage. It divided the net

worth precisely in half, requiring payment by Norman to Marcia of

$72,500 in cash. Marcia was also awarded the equity in a home in

Phoenix, Arizona, which she had owned prior to the marriage. The

court ordered Norman to pay Marcia, in addition, maintenance of

$1,000 per month for two years.

Norman appealed. In an unpublished opinion, this Court made

minor modification to the District Court's property and debt

division and remanded the maintenance issue for consideration of

the requirements of § 40-4-203(1)(a) and (b), MCA. On remand, the

District Court found:

The court in making this decision is aware that wife was

reemployed at the time of trial and would receive an

award of marital property.

However, as noted in the original memorandum opinion

wife was to immediately incur debts of $34,000.00 associated with her move to Phoenix, Arizona where she was

employed. Considering the threshold requirements under

40-4-203(1)(a) and (b), the District Court specifically

finds that wife's earnings and property are insufficient

to meet her reasonable needs in light of these debts.

Therefore, husband shall pay wife maintenance in the

amount of $l,OOO.OO per month over a two-year adjustment

period.

Norman now appeals from the order in which that finding was made.

3
Did the court err in awarding maintenance to Marcia Silverman?

Norman initially questions the court's finding that Marcia

incurred expenses of $34,000 in relocating to Arizona. In its

original findings, the District Court stated that Marcia had to

borrow $8,000 to pay expenses of her move back to Phoenix, purchase

a new car for $16,000 (Norman kept both of the marital vehicles),

and would be required to expend $10,000 to conduct necessary

repairs to her Phoenix home. These figures are supported in

Marcia's testimony and were not contradicted on cross-examination

or in the testimony of other witnesses.

Norman's chief argument is that Marcia is not eligible for

maintenance under the standard set forth at 5 40-4-203(1)(a) and

(b), MCA. That statute provides, in applicable part:

(1) In a proceeding for dissolution of marriage . . . the

court may grant a maintenance order for either spouse

only 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 . . . .

Norman points out that, after the dissolution as modified by this

Court, Marcia had a job, a home with $15,000 in equity, $64,650 in

cash, and other personal property. He maintains the finding that

she lacks sufficient property to provide for her reasonable needs

and is unable to support herself with suitable employment is

clearly erroneous, misapprehends the facts, and is a mistake.

4
The statutory requirements for maintenance must be viewed with

relation to the standard of living achieved by the parties during

the marriage. In re Marriage of Madson (1979), 180 Mont. 220, 224-

25, 590 P.2d 110, 112. Further, the diverse fact situations in

marital dissolutions sometimes justify deviation from the rule

disfavoring maintenance, in the interest of an equitable dissolution. In re Marriage of Luisi (1988), 232 Mont. 243, 247, 756 P.2d

456, 459. This Court therefore grants wide discretion to district

courts in determining whether maintenance is proper. Luisi, 756

P.2d at 459.

The terms "reasonable needs" and "suitable employment" in the

statement of prerequisites for an award of maintenance under § 40-

4-203(1), MCA, allow room for discretion in tailoring a dissolution

decree to the particular facts before the court. The record

demonstrates that Norman and Marcia maintained a luxurious standard

of living during their marriage and that Norman's level of income

continues to be extremely high. It also demonstrates Marcia's

relatively modest level of income post-dissolution and the

substantial expenses related to her move back to Arizona to resume

employment. In light of these factors, we conclude that the court

did not err in awarding maintenance for a limited duration.

Affirmed.

Chief Justice
we concur:

6
Justice Terry N. Trieweiler dissenting.

I dissent from the opinion of the majority.

By statute, maintenance is only permitted if Marcia lacked

sufficient property to provide for her reasonable needs and was

unable to support herself through appropriate employment. Neither

condition is established by the record in this case. The majority

has, therefore, simply established its own standard for

maintenance. To do so ignores the proper judicial role of simply

applying statutory law as written. Therefore, I dissent from the

majority opinion.

/

J stice
Justice Karla M. Gray, dissenting.

I respectfully dissent from the opinion of the Court, which

attempts to resolve this dispute on the basis of a continued void

in the District Court's findings on the maintenance issue. I would

remand for the entry of sufficient findings with regard to Marcia's

"reasonable needs" and V8suitable employment" vis-a-vis the

maintenance issue.

This is the second time this case has been before the Court.

In an unpublished opinion in the first appeal, we modified and

otherwise affirmed the District Court's determination of the value

of the marital estate, vacated the award of maintenance and

remanded for consideration of the statutory requirements contained

in 5 40-4-203(1)(a) and (b), MCA. We stated that the statute

requires that the court find that a spouse lacks

sufficient property to provide for her reasonable needs

or is unable to support herself through appropriate

employment. The court made no such finding in this case.

We noted that Marcia's then-current earnings were determined by the

court, but that "[iIt is not apparent from the findings that the

threshold requirements of 5 40-4-203(1)(a) and (b), MCA, were

considered in this case."

On remand, the court found "that the original award of

maintenance is still valid." It stated that it considered the

statutory requirements and specifically "found" that Marcia’s

"earnings and property are insufficient to meet her reasonable

needs in light of [certain debts incurred in her post-dissolution

relocation to Arizona]." The District Court made no findings

whatsoever regarding Marcia's living expenses and reasonable needs

or to what extent those needs were unmet by her property and

8
income. It merely made a conclusory statement that the statutory

requirements were met.

I recognize that the district courts of Montana labor under an

ever-increasing workload with insufficient staff and other

resources. While this Court should not impose unnecessarily

onerous requirements, we must require trial courts to provide

sufficient findings on dispositive matters to enable us to properly

exercise our appellate review. It is my view that the District

Court's opinion on remand does not meet the intent of our original

remand: nor does it provide sufficient findings for the appropriate

exercise of appellate review by this Court.

In this instance, the void left by the District Court results

in an opinion by this Court that does not--because it cannot, based

on the trial court's opinion--apply the statutory requirements for

entitlement to maintenance in determining whether the District

Court erred in awarding maintenance. Rather than remand a second

time, the Court apparently prefers to "find a way" to affirm and

finally be done with this case. As a result, the Court's opinion

at very least appears to ignore the legislatively-enacted policy

that maintenance is disfavored in Montana and to undercut the clear

statutory requirements for entitlement to maintenance. I disagree

that it is appropriate to do either. I would remand for the entry

of findings adequate to support the District Court's conclusion

that Marcia is entitled to maintenance.

9
July 13, 1993

CERTIFICATE OF SERVICE

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

following named:

Craig R. Buehler

Attorney at Law

505 W. Main St., Ste. 210

Lewistown, MT 59457

Torger S. Oaas

Attorney at Law

P.O. Box 76

Lewistown, MT 59457

ED SMITH

CLERK OF THE SUPREME COURT

STATEIOF MONT$NA