No. 05-383 IN THE SUPREME COURT OF THE STATE OF MONTANA 2007 MT 37N

IN RE THE MARRIAGE OF RONALD E. MOORE, Petitioner and Appellant,

v. SANDRA KAY MOORE, Respondent and Respondent.

APPEAL FROM: The District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DR 2004-1180, Honorable Ingrid G. Gustafson, Presiding Judge

COUNSEL OF RECORD: For Appellant: Jock B. West, West La w Firm, P.C., Billings, Montana For Respondent: James C. Reuss, Guthals, Hunnes, Reuss & Thompson, P.C., Billings, Montana
Submitted on Briefs: July 25, 2006 Decided: February 13, 2007 Filed:

__________________________________________ ClerkJustice Patricia O. Cotter deliver ed the Opinion of the Court. ¶1 Pursuant to Section I, Para graph 3(d)(v), Montana Supreme Court 1996 Internal Operating Rules, as amended in 2003, the following memorandum decision shall not be cited as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and its case title, Supreme Court cause number and disp osition shall be included in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 Ronald and Sandra Moore (hereinafter Ro n and Sandra) were ma rried for thirteen years. At the time of dissolution, Ron was 63 years old and retired. Sandra was 56 years old and still working. Upon di ssolution of the marriage, the Di strict Court distributed the parties’ assets and debts. Additionally, the court or dered Ron to pay monthly maintenance to Sandra until sh e reached the age of 62. Ro n appeals both the distribution allocation and the obligation to pay m onthly maintenance. We affirm. ISSUES ¶3 A restatement of the issues on appeal is: ¶4 Did the District Court properly distri bute the parties’ assets and debts? ¶5 Did the District Court properly award maintenance to Sandra? FACTUAL AND PROCED URAL BACKGROUND ¶6 Ron and Sandra married in February 1992. Both had been married previously and both have adult children from their previous marriages. They have no children together. Throughout the marriage they ge nerally maintained separate bank accounts, and with one exception did not contribute funds to one another’s retirement accounts.

2¶7 At the time of the marriage Ron had been working at Montana Dakota Utilities (MDU) for approximately twenty-five years. He had an established retirement account with MDU as well as various credit union and bank accounts containing premarital funds. During the dissolution proceeding, however, Ron was unable to provide the balances of these accounts as of the da te he and Sandra married. ¶8 Ron continued to work at the utility co mpany for the first five years of the marriage, and then resigned with thirty years service. Du ring these five years, Ron deposited his wages and other marital fu nds into his existin g accounts without distinguishing between premar ital and marital funds. At th e time of dissolution, Ron was retired, had access to retiremen t income, and was receiving a monthly Social Security benefit check of $1,200.00. ¶9 While married to Ron, Sandra primarily worked 35 hours per week, nine months of the year, for the Billings School District. She additionally worked in retail sales as a second job for several years. At the time of the dissolution hearing in May 2005, she worked solely for the school district as a library clerk at Billi ngs Senior High School earning approximately $9,900.00 per year, an d also received a small additional monthly income from the installment sale of a motel previously owned by her parents. As noted by the District Court, while seven years re mained on the installment contract, future payments were jeopardized by a lawsuit ag ainst Sandra and her siblings for hospital expenses incurred by their parents prior to their deaths. ¶10 During their marriage, the couple acqui red numerous assets including, but not limited to, vehicles, trailers, and real propert y. Many of these items were purchased from

3Ron’s various accounts, all of which contained both premarital and marital funds. At the time of dissolution, Ron and Sa ndra’s debts were limited to th e balance owed on Sandra’s car and approximately $8,500.00 in credit card debt. ¶11 Prior to the hearing, the parties were ab le to agree on the distribution of their household items and pers onal property. As a result, the District Court was required to determine only the distribution of vehicles, trailers, the real property and monetary assets. In the court’s May 17, 2005, Fi ndings of Fact, Conclusions of Law and Final Decree of Dissolution, it awarded Sandra a small por tion of Ron’s retirem ent account premised upon its calculation of the amount of marital funds included in the account. Similarly, it awarded Sandra a small percentage of the value of the real property, the vehicles and the trailers that had been acquired with funds from Ron’s accounts containing both premarital and marital monies. The District Court also ordered Ron to pay Sa ndra maintenance until she reached age 62. ¶12 In June 2005 Ron filed a timely notice of appeal and moved to stay proceedings pending the appeal. On July 8, 2005, the court granted Ron’s motion and stayed proceedings during the pend ency of this appeal. STANDARD OF REVIEW ¶13 We review a district court’s division of marital property and maintenance awards to determine whether the findings of fact upon which the division and award are based are clearly erroneous. A district court’s fi ndings are clearly erroneous if they are not supported by substantial evidence, if the cour t misapprehended the effect of evidence, or if our review of the record convinces us that the court made a mistake. Absent clearly

4erroneous findings, this Court w ill affirm a district court’s division of prope rty and award of maintenance unless we identify an abuse of discretion. A district court may award maintenance after marital property has been divided equitably purs uant to § 40-4-202, MCA, and the court has properly app lied the criteria of § 40-4-203, MCA. In re Marriage of Payer , 2005 MT 89, ¶ 9, 326 Mont. 459, ¶ 9, 110 P.3d 460, ¶ 9 (citations omitted). DISCUSSION ¶14 Under § 40-4-202, MCA, district courts are required in a dissolu tion proceeding to equitably apportion the assets belonging to the parties. Section 40-4-202, MCA, lists numerous factors the court must consider wh en dividing property acquired before the marriage, during the marriage, or by gift or inheritance. The reco rd reveals that the District Court carefully considered all the fact ors prescribed by statut e as well as relevant circumstances pertinent to this particular ma rriage and the relationship of the parties. ¶15 While Ron argues that the District Court’ s distribution does not comport with our instructions in In re the Marriage of Herrera , 2004 MT 40, 320 Mont. 71, 85 P.3d 781,
Herrera is distinguishable. In Herrera , the husband was able to definitively establish that the source of the divided assets was whol ly premarital or gifted. As a result, the district court erred when it divided these as sets equally without considering whether the wife contributed to the apprec iation or preserved value of th e properties. In the case before us, Ron failed to unequi vocally trace the funds used to purchase the divided assets to premarital funds, as opposed to premarital and marital funds. Therefore, the District Court formulated a reasonable method, under these circumstances, for calculating the

5amount of marital funds in the relevant acc ounts and awarding Sandra a share of these assets based upon her interest in the marital portion of the investment. Moreover, the court clearly considered Sandra’s contribu tion toward the appreciation and preservation of the value of the divided properties. We find no clear error in the court’s approach. ¶16 Ron also appeals the District Court’s award of maintenance to Sandra. The District Court expressly stated in its Order th at it considered the factors set forth in § 40- 4-203, MCA, which gives a district court di scretion to grant a maintenance award upon the finding of certain conditions. Based on the overall distribution of the parties’ property and monetary assets and Sandra ’s employment circumstances and limitations, the District Court’s decision to award main tenance was supported by appropriate findings of fact which were, in turn , supported by the record. ¶17 Therefore, we have determined to decide this case pursuant to Section I, Paragraph 3(d) of our 1996 Internal Operating Rules, as amended in 2003, which provides for memorandum opinions. It is manifest on the reco rd before us that the findings of fact are supported by substantial evidence. Additiona lly, the legal issues are clearly controlled by settled Montana law which the District Court co rrectly interpreted; therefore there was no abuse of discretion by the District Court. ¶18 We affirm the decision of the District Court.

/S/ PATRICIA COTTER

6We Concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ W. WILLIAM LEAPHART /S/ JIM RICE

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