No. 81-376 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

IN RE THE MARRIAGE OF 

RODNEY LASTER, 

Petitioner and Appellant, 

and 

JUNE M. LASTER, 

Respondent and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Boscher and Boschert, Billings, Montana 

Alan J. Lerner argued, Big Fork, Montana 

For Respondent: 

Berger, Sinclair and Nelson, Billings, Montana 

James J. Sinclair argued, Billings, Montana 

APR 1 5 I$!?! 

Filed: 

Submitted: January 13, 1982 

Decided : iara $ 5 1992 - $ )&J',l- / Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

The husband, Rodney Laster, appeals from a judgment 

entered by the District Court of the Thirteenth Judicial 

District, Yellowstone County, in which the parties' marriage 

was dissolved, the marital estate divided, and the wife 

awarded $350 per month in maintenance, as well as attorney 

fees and costs. 

The Lasters were married for twenty-nine years. They 

had three children, two are now adults. The third child was 

severely disabled, both physically and mentally, requiring 

total care. The wife quit her secretarial job in 1956 to 

care for her 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 in Pennsylvania. 

After their separation the wife obtained a job as a 

floor lady in a garment shop. She is now fifty-eight years 

old, and her gross salary is $406.20 every two weeks. 

The District Court determined that the wife's net 

salary is $308 every other week. In arriving at this figure 

the District Court subtracted from the gross salary all of 

the itemized deductions (federal, state and local taxes, 

social security and union dues) taken out of the wife's biweekly pay check. By multiplying $388 times twenty-six pay 

periods, and dividing by twelve, the District Court found 

that the wife's average monthly spendable incorne is $667. 

The District Court found that the wife's monthly 

expenses total $806. To supplement her income, the wife has 

rented a mobile home owned by the parties for $165 per 

month. 
The wife is not eligible for full retirement benefits 

since she began her job after the age of fifty-f ive. 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 

sclerosis but it is in remission and there is no evidence on 

the record that it impairs his ability to work. The husband 

presently works for the federal government as an OSHA compliance officer in Billings, 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 at this figure by 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 deductions taken out of the husband's paycheck. The 

District Court also found that the husband's fiancee 

contributes $100 per week and this additional income would 

serve to offset future living expenses. 

In addition to supporting himself, the husband supports his fiancee and his fiancee's daughter. His monthly 

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 that the husband was 

able to pay over $300 in maintenance to the wife. 

The husband has three retirement programs, two vested 

but not matured and one not vested. All of the payments of 

the first two plans were made during the parties' marriage. 

Under the first plan, the husband will receive $750 per 
inonth 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 five years. 

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 valuations was indefinite since 

appraisal figures were 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 the marital property with approximately 78% to 

the wife and 22% to the husband. The District Court listed 

its reasons for such a disproportionate distribution stat:.ng 

that for the past three years the wife has been solely 

responsible for the mortgage payments on the family home 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 at the 

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 the one-half share she requested. 

After considering the nature of the property 

involved, in that the property awarded to the wife was not 
income produciny but incoiae reducing, the ~istrict Court 

found there was not sufficient property in the marital 

estate to provide for the redsonable needs of the wife. The 

District Court further found that the husband was financially able to contribute $350 per month for the support of 

the wife and awarded her that amount until her death, until 

she remarries, or until the husband retires. 

The District Court further awarded the wife $541 for 

her expenses of traveling to Montana and staying here during 

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 issues have been presented by the parties: 

1. Whether the District Court erred in its equitable 

apportionment of the marital estate? 

2. Whether the District Court erred in awarding 

maintenance to the wife? 

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 fees and costs to 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 

to the wife. 

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 since it did not state in its findings of facts that 

the marriage was irretrievably broken or that one of the 

parties was domiciled in Montana. 

The husband contends that the District Court abused 

its discretion because a 78%-22% property distribution is 

per se inequitable and because the values the District Court 

placed on the main marital assets were based on speculative 

and incompetent evidence. It should be noted that the 78%- 

22% proportion does not include consideration of the District Court's division of the husband's retirement benefits 

and is therefore misleading. 

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 the Marriage 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 factors therein and then divide the 

property equitably. An equitable division does not necessarily mean an equal division. As has been noted many times 

by this Court, and most recently in Martens: 

"'Although - the District Court ---- may equally 

divide the marital assets, such a distribution is not mandated by section 40-4-202, MCA 

. ~-~ . . Section 40-4-202 is flexible and it 

vests a good deal of discretion in the District Court . . . We have stated, before and 

after the adoption of the statute, that each 

case must be looked at individually, 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: the wife has been 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 great disparity in earning capability. The District 

Court recognized that the wife was receiving an unusually 

large percentage of the marital property and to equalize the 

situation, the District Court did not award the wife as much 

of the retirement benefits as she had requested. If the 

division of retirement benefits is considered, the wife in 

actuality is receiving less than 78% of the marital estate. 

Clearly, the District Court considered the factors listed in 

section 40-4-202, MCA, and used very conscientious judgment 

in distributing the property. 

The husband next contends that the District 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 

clearly erroneous. 

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 in determining whether 

a spouse seeking maintenance "lacks sufficient property" to 

provide for her need, "sufficient property" means income 
producing, 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 Marriage 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, it must be noted that the District 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 life insurance payments and union dues, in determining the husband's monthly spendable income. This error 

is not cause for remand, however, since the husband is still 

able to pay $350 per month in maintenance. 

Under section 40-4-203(2)(f), MCA, the District 

Court, in determining the arnount of maintenance, must consider the financial ability of the spouse paying maintenance 

to meet his own needs while meeting the needs of his spouse. 

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 determining 
his spendable ~nonthly income--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 ability to pay. 

Duffey is not on point here. It deals with the 

consideration of a present wife's income in determining the 

ability of the husband to pay child support. 

This Court has previously considered and approved a 

trial court's calculation of "family" net income based on 

the earnings of the husband 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), 

180 Mont. 40, 588 P.2d 1010. We see no reason not to follow 

the Cromwell case. The income of the husband's fiancee may, 

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 

in costs. 

Under section 40-4-110, MCA, a District Court is 

given discretion to award a reasonable amount in attorney 
fees 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 will not be disturbed by this Court if 

it is supported by substantial evidence. . ." 

(Citations omitted.) 628 P.2d at 289. 

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 

erred by 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 in light of 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 of 
a 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, Easton v. Easton (1978), 175 Mont. 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 classification was created as he 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 specific retirement plans. These 

cases had no effect on any private or other federal retirement plans. The husband is arguing apples and 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 the Marriage 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 assets and income." Section 4Q-4-202 (1) , MCA. 

The District Court explicitly found that maintenance 

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 last contention raised by the husband is whether 

the District Court's failure to find that the marriage was 

irretrievably broken and to find that one of the parties has 

been domiciled in Montana for ninety days makes the District 

Court's judgment void for lack of 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 failure to make these findings, in this case, is merely 

a technical oversight by the District Court and does not 

affect the substantial rights of the parties. The husband's 

failure to except to the District Court's findings, 
therefore, precludes this Court from review of the matter. 

Finding no abuse of discretion by 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. 

We concur :