DA 07-0426

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 187

IN RE THE MARRIAGE OF

IRENE CRILLY,

Petitioner and Appellant,

and

DONALD CRILLY,

Respondent and Appellee.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DR 03-0566

Honorable Susan P. Watters, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Jill Deann LaRance, LaRance & Syth, Billings, Montana

For Appellee:

Timothy J. Whalen, Whalen & Whalen, Laurel, Montana

Submitted on Briefs: October 16, 2008

Decided: May 27, 2009

Filed:

__________________________________________

Clerk

May 27 2009
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Justice John Warner delivered the Opinion of the Court.

¶1 Donald Crilly (Donald) filed a petition to modify the maintenance provision of the

decree dissolving the marriage between him and Irene Crilly (Irene). The District Court

granted Donald’s petition, eliminating maintenance. Irene appeals. We affirm.

¶2 Approximately five months after this Court decided In re Marriage of Crilly, 2005

MT 311, 329 Mont. 479, 124 P.3d 1151 (Crilly I), Donald filed his petition to eliminate

maintenance, asserting that the financial circumstances ofthe parties had changed and thatit

would be unconscionable to require him to continue paying $1,000 a month to Irene as

maintenance.

¶3 In the decree distributing the parties’ marital estate, the District Court ordered that

real property on King Avenue (tract 2 C/S 976) in Billings be sold and the proceeds used to

pay the debts of the marriage as well as any capital gains taxes.

¶4 The parties’ remaining real property, located on Danford Road, was divided between

the parties. Irene received 30 acres consisting ofthree lots, one of which included the family

home. Donald received two lots, totaling 25 acres. The District Court noted at the time that

“it is equitable for the partiesto receive a nearly equal distribution ofthe marital estate, with

Irene receiving maintenance.”

¶5 Donald’s petition to modify maintenance alleged that he was unable to pay

maintenance, that the marital debt was paid from the proceeds of the King Avenue property

and that Irene was able to meet her expenses without maintenance. Irene responded and filed
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a discovery request seeking financial information from Donald. Donald did notfullycomply

with this request, which became a contentious issue. Irene filed a motion to compel which

was partially granted. Irene has not appealed from this order regarding the motion to

compel.

¶6 A hearing was held at which both parties testified concerning their financial status.

Donald said that he could pay maintenance only by dissipating the assets that were

distributed to him in the dissolution proceeding. Donald also testified he had received

$350,000 from the sale of the Danford Road property.

¶7 Irene testified she was currently in the process ofselling her part ofthe DanfordRoad

property and she expected to receive $556,000 from that sale.

¶8 The District Court found that each party had received $35,000 from the sale of the

King Avenue property. After additional briefing regarding sale of the parties’ property, the

District Court found that there had been a change in circumstances so substantial and

continuing that the previous maintenance award was unconscionable. The District Court

ordered Donald to pay $7,500 in unpaid maintenance and ordered future maintenance

terminated. Irene appeals.

¶9 We review a district court’s findings of fact in a dissolution proceeding to determine

whether they are clearly erroneous. Crilly I, ¶ 10. A finding is clearly erroneous if it is not

supported by substantial evidence, the district court misapprehended the effect of the

evidence, or our review of the record convinces us that the district court made a mistake.
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Crilly I, ¶ 10 (citing Bock v. Smith, 2005 MT 40, ¶ 14, 326 Mont. 123, 107 P.3d 488).

Absent clearly erroneous findings, we will affirm a district court’s division of property and

award of maintenance unless we identify an abuse of discretion. Crilly I, ¶ 10 (citing In re

Marriage of Payer, 2005 MT 89, ¶ 9, 326 Mont. 459, 110 P.3d 460). A district court abuses

its discretion if it acts arbitrarily without conscientious judgment or exceeds the bounds of

reason, resulting in substantial injustice. Crilly I, ¶ 10 (citing In re Marriage of Kotecki,

2000 MT 254, ¶ 9, 301 Mont. 460, 10 P.3d 828).

¶10 Generally, maintenance is not favored. In re Marriage of Luisi, 232 Mont. 243, 247,

756 P.2d 456, 459 (1988). Maintenance is appropriate when a spouse hasinsufficient assets

to cover living expenses and reasonably cannot earn a sufficient amount to maintain an

appropriate standard of living. In re Marriage of Johnsrud, 181 Mont. 544, 553, 572 P.2d

902, 907 (1977); Section 40-4-203(2)(c), MCA .

¶11 Once entered, orders establishing maintenance may only be modified upon a showing

of changed circumstances so substantial and continuing as to make the terms of a

maintenance award unconscionable. Section 40-4-208(2)(b)(i), MCA. While this Court

applies the clearly erroneous standard in reviewing findings of fact in maintenance

modification cases, we review a district court’s changed circumstances and unconscionability

determinations under § 40-4-208(2)(b)(i), MCA, for an abuse of discretion. In re Marriage

of Brown, 283 Mont. 269, 272-73, 940 P.2d 122, 124 (1997).

¶12 In the original decree the property distribution was intended to be approximately
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equal. At that time, the Danford property distributed to Irene was valued at $225,960.

However, Irene later sold that property, netting approximately $556,000, which is

approximately $330,000 more than the value assigned at the time she was awarded

maintenance. Thus, Irene had double the amount of property necessary to make an equal

distribution ofthe marital estate. The District Court found that Irene’sincome had remained

the same as it was at the time of the original distribution.

¶13 On the other hand, Donald sold his interest in the Danford property for an

approximate net of $350,000. Also, the District Court found that Donald’s income had

decreased by about $1,000 per month after the time of the original decree.

¶14 Based on the evidence, the District Court concluded that there was a substantial

change in the financial circumstances of the parties. Donald was making over $1,000 less

per month, through no fault of his own, and Irene had at least $330,000 more than was

necessary to accomplish an equal distribution of the marital estate.

¶15 The District Court also found that after the dissolution decree, the nature of Irene’s

property had changed from non-income producing to income producing. At the time of the

original decree, the property Irene received was valued at $225,960 of which $105,000 was

income producing. The District Court found that at the time ofthe hearing on the petition to

modify maintenance, Irene had accumulated $556,000 in income producing property, an

increase of approximately $456,000. The District Court thus found that Irene could earn

sufficient interest to more than pay her living expenses. The District Court’s findings are
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supported by evidence in the record.

¶16 We conclude that the District Court did not abuse its discretion in determining the

financial circumstances of the parties had undergone a substantial and continuing change

which rendered the original award of maintenance unconscionable. The District Court did

not err in terminating Donald’s maintenance obligation.

¶17 Affirmed.

/S/ JOHN WARNER

We Concur:

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ PATRICIA COTTER

/S/ BRIAN MORRIS