### No. 81-376 INTHE SUPREME COURTOF THE STATEOF MONTANA 1982

IN

### RE THEMARRIAGE OF RODNEYLASTER, PetitionerandAppellant, and JUNE

### M. LASTER, Respondentand Respondent.

Appeal from: DistrictCourtof theThirteenth JudicialDistrict, Inand for the County ofYellowstone Honorable Charles Luedke,Judgepresiding. Counsel of Record: ForAppellant: Boscher and Boschert, Billings, Montana Alan J. Lerner argued,Big Fork,Montana ForRespondent: Berger, SinclairandNelson, Billings,Montana JamesJ. Sinclair argued,Billings,Montana



## APR1 

# 5 

# I$!?! Filed: Submitted: January 13,1982 Decided: iara$

### 5

### 1992 

# - $ )&J',l-/ Clerk

### Mr. JusticeGene B. 

### Dalydelivered the Opinionof theCourt. The husband, Rodney Laster, appeals from 

### a judgment entered by the District 

### Court of the Thirteenth Judicial District, 

### YellowstoneCounty, inwhich the parties' marriage

was dissolved, the marital estate divided, and the wife awarded $350 per month in maintenance, aswell asattorney feesand costs. The Lasterswere married for twenty-nine years. They had threechildren, two arenow adults. The third childwas severely disabled, both physically and mentally, requiring total care. The wife quit her secretarial job in 1956 to

careforher disabled child, who lived to the age of ten. 

### The husband and wife separated in April 1979. The husband moved to Montana in December 1979 while the wife stayed inPennsylvania. After their separation the wife obtained a job as a floor lady ina garment shop. She 

### is now fifty-eight years old, and her gross salary

### is $406.20 everytwo weeks. 

### The District Court determined that the wife's net salary 

### is $308 everyotherweek. In arriving atthisfigure the District Court subtracted from the gross salary allof the itemized deductions (federal, state and local taxes, social security and union dues) taken outof the wife's biweekly pay check. By multiplying $388 

### times twenty-six pay periods, and dividing by twelve, the District Court found that thewife's averagemonthly spendable incorne is 

### $667. The District 

### Court found that the wife's monthly expenses total $806. 

### To supplement her income, thewifehas rented a mobile home owned by the parties for $165 per month.The wife isnot eligiblefor fullretirement benefits since she began her job after the age of fifty-five. She will receive a small pension of $33.60 per month if she works until she 

### is sixty-seven. The husband 

### is fifty-one years old. He has n~ultiple sclerosisbut 

### it 

### is inremission and there 

### isno evidence on the record that 

### it impairshisabilitytowork. The husband presently works for the federal government asan OSHA complianceofficer inBillings, Montana. The husband's gross income was $27,854 in 1981, $25,608 in 1980. The 

### District Court found that in 1980 the husband's spendable income was $1,865 per month. The 

### District Court arrived atthis figureby deducting only the federal taxes from the husband's gross income and dividing by twelve. Unlike 

### its determination of the wife's monthly spendable income, the District Court did not look to the monthly deductionstaken outof thehusband's paycheck. The 

### District Court also found that the husband's fiancee contributes $100 per week and this additional income would

serve tooffset futureliving expenses. In addition to supporting himself, the husband supports his fiancee and his fiancee's daughter. Hismonthly expenses 

### were found to be $1,535 per month. Taking the $1,865 spendable income and subtracting the $1,535 in expenses, the

### District Court determined thatthehusband was able topay over $300 inmaintenance tothewife. The husband hasthree retirement programs, two vested but not matured and one not vested. All of the payments of the firsttwo plans 

### were made during the parties' marriage. Under the first plan, the husband will receive $750 perinonth when he reaches the age of sixty. Under the second plan, the husband 

### will receive $304 per month when he reaches the age of fifty-nine. The husband 

### is presently contributing to a third plan which will vest in approximately fiveyears. Excluding the value of the husband's retirement benefits, the District Court valued the marital assets at $73,580, liabilities at $18,359.27, and net marital estate at$55,220.73. The major disputed valuations are the family home in Pennsylvania and the jewelry acquired during the marriage. Evidence of these valuationswas indefinite since appraisal figureswere based mostly on the personal opinions of the parties, formed through informal inquiries or reliance on amounts of insurance coverage. Except for the retirement benefits, the District Court divided themarital property with approximately 78%to the wife and 22%to the husband. The District Court listed 

### itsreasons for such a disproportionatedistribution stat:.ng that for the past three years the wife has been solely responsible for themortgage payments on the familyhome and ten-acre tract. This, coupled with the length of the marridge, the devotion of the wife to the care of her disabled child, the wife's willingness to undertake employment atthe age of fifty-six years and the disparity of earning capabilities, justified the distribution. To equalize this disproportionate distribution, the District Court awarded the wife a one-third share in each of the husband's retireinent plans rather than theone-half share she requested. After considering the nature of the property involved, in that the property awarded to the wife was notincome produciny but incoiae reducing, the ~istrict Court found there was not sufficient property in the marital estate toprovide for the redsonable needs of the wife. The District Court further found that the husband was financiallyable to contribute $350 per month for the support of the wife and awarded her that amount until her death, until she remarries, or until thehusband retires. The District Court further awarded the wife $541 for her expenses of traveling toMontana and staying hereduring the trial. Finally, the District Court found that the wife did not have sufficient funds to pay attorney fees and ordered the husband to pay $1,050 

### in reasonable attorney fees. Four basic issueshave been presented by the parties: 1. Whether the District Court erred in 

### itsequitable apportionment of the marital estate? 2. Whether the District Court erred in awarding maintenance to thewife? 3. Whether the District Court erred in awarding the wife a portion of the husband's retirement benefits? 4. Whether the District Court erred in awarding attorney feesand coststo the wife? The husband raises three issues in addition to these basic four: 1. Whether the District Court erred by considering the income of the husband's fiancee in awarding maintenance tothewife. 2. Whether the husband's right to equal protection

was violated by awarding the wife a share of his retirement benef

### its.3. Whether the District Court's judgment is 

### a nullity sinceit did not statein 

### its findingsof factsthat the marriage was irretrievably broken or that one of the partieswas domiciled inMontana. The husband contends that the District Court abused its discretion because a 78%-22%property distribution is per 

### se inequitable and because thevaluesthe

### District Court placed on themain marital assetswere based on speculative and incompetent evidence. It should be noted that the 78%- 22% proportion does not include consideration of the DistrictCourt's division of the husband's retirement benefits and is thereforemisleading. In determining whether a trial court abused its discretion, the standard for review 

### is whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. In 

### re theMarriage of Creon (1981), Mont

# . - 

## - 

## , 635 P.2d 1308, 38 St.Rep. 1828; In 

### re Marriage of Martens (1981), 

### -Mont. 

## , 637 P.2d 523, 38

The District Court's duty under section 40-4-202(1), MCA, is to consider the factorstherein and then divide the property equitably. An equitable division does not necessarilymean an equal division. Ashasbeen noted many 

### times by thisCourt, and most recentlyinMartens: "'Although

## - theDistrict Court 

### ----

may equally dividethemarital assets, such a distribution isnotmandated 

### by section40-4-202, 

### MCA



# . 

# . . Section 40-4-202 

### is flexible and it

~-~ vests 

### a good deal of discretion in the Dis

### trict Court

# .

# . .We have stated, before and after the adoption of the statute, that each casemust be looked atindividually, with an eye to 

### its unique circumstances

# ...' (Citations omitted.) In Re Marriage of Aanenson

### In Finding of Fact No. 17, the District Court gave extensive reasons for giving the wife 78%of the marital property: thewife hasbeen solely responsible for mortgage payments on the family home since 1979, the length of the marriage, the devotion of the wife to her disabled child, and the greatdisparityin earning capability. The District Court recognized that the wife was receiving an unusually largepercentage of the marital property and to equalize the situation, the DistrictCourt did not award thewife asmuch of the retirement benefits as she had requested. If the division of retirement benefits 

### is considered, the wife in actuality 

### is receiving lessthan 78%of the marital estate. Clearly, theDistrict Court considered the factorslisted in section 40-4-202, MCA, 

### and used very conscientiousjudgment indistributing the property. The husband next contends that theDistrict Court did not have sufficient competent evidence to properly evaluate the marital estate. While it 

### is true that the trial court

was not given the best evidence on which to base its

### valuations, the District Court's determinations of values will 

### stand unless they are clearly erroneous. Rule 52(a), M.H.Civ.P.; In re Marriage of Creon, supra. There 

### is nothing in the record to show that its 

### valuations were clearlyerroneous. A 

### District Court's award of maintenance must be made in accordance with the factors set forth in section 40-4- 283, MCA. It is

### well established that indetermining whether

a spouse seeking maintenance "lacks sufficientproperty" to provide for her need, "sufficient property" means incomeproducing, not income consuming

## , property. See section 40-4-203(l)(a), MCA; In re the Marriage of Herron (1980), Mont. 

## , 608 P.2d 97, 37 St.Rep. 387; In 

### re the Mar

## - riage of Bowman (1981), 

## -Mont. 

## - 

## , 633 P.2d 1198, 38 St.Rep. 1515. 

### Here, the 

### District Court carefully considered the nature of the property involved and the factors listed in section 40-4-203, MCA. The 

### District Court found that no matter how favorable the property distribution was to the wife, such a distribution cannot substitute completely for maintenance. While 

### we agree that the wife requires some maintenance, itmust be noted thattheDistrict Court improperly calculated the husband's monthly spendable income. The 

### District Court looked only to the federal taxes deducted from the husband's monthly paycheck. It failed to consider other deductions, such as state taxes, retirement payments, health and lifeinsurance payments and union dues, indetermining the husband's monthly spendable income. This error 

### is not cause for remand, however, since thehusband 

### is still able to pay $350 per month inmaintenance. Under section 40-4-203(2)(f), MCA, the 

### District Court, in determining the arnount of maintenance, must consider the financial abilityof the spouse paying maintenance tomeet hisown needs whilemeeting the needs of hisspouse. When the husband's monthly deductions are subtracted from the figures used by the District Court, the husband's rnonthly spendable incorne seems to be $300 less per month than originally calculated. Nevertheless, the husband has incorne which the 

### District Court did not use in determininghis spendable ~nonthlyincome--namely, the contributions by his fiancee, his tax rebate, and the rental fee for his mobile home. Taking into consideration the $401if per month contributed by the husband's fiancee, the $1,286 tax refund received by the husband, and the $165 per month rental fee for the mobile home, it 

### is apparent that the husband is still able to pay the $350 per month in maintenance. The District Court's miscalculation 

### is, therefore, harmless

error. The husband contends that under Duffey v. Duffey (1981) 

## -Mont

# . - 

## , 631 P.2d 697, 38 St.Rep. 1105, the income of the husband's fiancee cannot be used in determining the husband's abilityto pay. Duffey 

### is not on point here. It deals with the consideration of a present wife's income 

### indetermining the abilityof thehusband topay child support. This Court has previously considered and approved a trial court's calculation of "family" net income based on the earnings of thehusband and his future wife. This figure

was used to determine the future ability of the husband to pay maintenance. See, In the Marriage of Cromwell (1979), 180Mont. 40, 588 P.2d 1010. We seeno reason not to follow theCromwell case. The income of the husband's fianceemay, ti~erefore, be used to determine the husband's future financial status. The husband also contends that the District Court erred by awarding the wife $1,050 in attorney fees and $541 incosts. Under section 40-4-110, MCA, a District Court is given discretion to award a reasonable amount in attorneyfees and costs incurred prior to cornmencernent of 

### a proceeding and after entry of judgment. In Wilson v. Bean (1981)

## , -Mont. 

## , 628 P.2d 287, 38 St.Rep. 751, we set down the standard for reviewing the award of attorney fees: "In order to be awarded fees pursuant to section 40-4-110, MCA, the petitioning party 

### nus st make 

### a showing of necessity. 

# . . The award must be reasonable, and must be based on competent evidence. 

# . . Reasonableness is shown by means of a hearing allowing for oral testimony, the introduction of exhibits, and the opportunity to cross-examine. 

# . . The award willnot be disturbed by this Court if 

### it is supportedby substantial evidence.

# .." (Citationsomitted.) 628 P.2d at289. Here, testimony was presented and necessity shown for the award of attorney fees. An uncontested affidavit was submitted showing the costs the wife incurred when she traveled to Montana to contest this case. The District Court's award of attorney fees and costs 

### is, therefore, supported by the record. The husband contends next that the District Court erredby awarding to the wife one-third of the benefits from each of the husband's retirement plans. The husband claims that such an award 

### is an abuse of discretion inlightof the large amount of property distributed to the wife and in light of the amount of maintenance awarded. The husband also contends that by awarding the wife a portion of his retirement benefits, the District Court violated his right to equal protection under the laws. The District Court's award of retirement benefits cannot in itself be considered unfair. The District Court explicitly stated that maintenance would discontinue when the nusband retires. In light of the substantial evidence supporting an award of maintenance here, the substituting ofa portion of retirement benefits for naintenance cannot be considered an abuse of discretion. The husband's equal protection argument lacks any merit since 

### it was not raised at trial and since there 

### is

no "plain error" in the distribution of the retirement benefits. See, Eastonv. Easton (1978), 175Mont. 416, 574 P.2d 989, and Halldorson v. Halldorson (1977), 175 IJIont. 170, 573 P.2d 169. The husband's argument also fails because no classificationwas created ashe contends. The husband claims that two recent Supreme Court

cases set up a classification "which discriminates in 

### its application to divorce settlements against persons whose retirements are not under the Federal Railroad Retirement Act or from the Military." See, Hisquierdo v, Hisquierdo (1979),439 U,S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1; McCarty v. McCarty (1981), 49 U.S.L.W. 4850; for Montana's recognition of McCarty see, In re the Marriage of McGill (1981), 

### - Mont

# . , 637 P.2d 1182, 38 St.Rep. 2105. Quite simply, neither Hisquierdo nor McCarty gave rise to such a classification. These cases were merely construing federal statutes and discerning the intent of Congress 

### in enacting those specificretirement plans. These

cases had no effect on any private or other federal retirement plans. The husband 

### is arguing applesand oranges. It is we11 established in this state and in most other states that, as a general rule, retirement benefits

are part of the marital estate. For list of cases, see 94 /.)

### k A.L.R.3d4A3 et seq.; In re theMarriage of Karr (1981), 

### - ivlont

# . , 628 P.2d 267, 38 St.Rep. 506, and cases cited therein. The reasoning behind this rule is that the

### ~istrict Court, in clpportioning the marital assets, inust consider "the opportunity of each for the acquisition of cdpital assetsand income." Section4Q-4-202 (1)

## ,MCA. The District Court explicitly found thatmaintenance would end when the husband retired. As a form of marital property and as a substitute for maintenance, the 

### District Court granted the wife a one-third share in each of the retirement plans. This well-reasoned solution 

### is supported by evidence of the wife's future needs and the husband's future ability to 

### meet those needs. The 

### District Court's dpportionment of retirement benefits must therefore be upheld.The lastcontention raised by the husband 

### is whether the District Court's failure to find that the marriage was irretrievablybroken and to find thatone of thepartieshas been domiciled inMontana for ninety daysmakes theDistrict Court'sjudgment void for lackof jurisdiction. The husband failed to make any exceptions to the District Court's findings of facts and conclusions of law. Failure to make such exceptions 

### is fatal when the issue involved does not affect the substantial rights of the parties. See, In 

### re the Marriage of Barron (1978), 177 Mont. 161, 580 P.2d 936; Turner v. Turner (1971), 157 Mont. 262, 484 P.2d 1303; and Halldorson, supra. 

### Here, the record supports the 

### District Court's jurisdiction both over the subject matter and the parties. The failuretomake these findings, in thiscase, is merely a technical oversight by the District Court and does not affectthe substantial rightsof the parties. The husband's failure to except to the District Court's findings,therefore, precludes thisCourt from reviewof thematter. Finding no abuse of discretionby the

### District Court, its judyrnent is affirmed. Respondent's motion for reasonable attorney fees and costs is granted and remanded to the District Court for proper determination.

Weconcur: