No. 85-103 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE PiARRIAGE OF 

SHELTON CROSS WILLIW.S , 

Petitioner and Respondent, 

and 

DONNA LEA WILLIAMS, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gough, Shanahan, Johnson & Waterman; Ronald Waterman, 

Helena, Montana 

For Respondent: 

Koch, McKenna, Goheen & Boggs; Gail H. Goheen, 

Hamilton, Montana 

Submitted on Briefs: July 25, 1985 

Decided: February 20, 1986 

Filed: "EB 2 8 15;. 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Donna Lea Williams (wife) and Shelton Cross Williams 

(husband) independently appeal an order of the Missoula 

County District Court which resolved reserved questions 

ancillary to the prior dissolution decree regarding maintenance, child support, valuation and division of marital 

assets. We affirm. 

The issues on appeal are: 

1. Was it error to award maintenance payments to the 

wife because of her career foregone during marriage, and to 

set the value at $162,597? 

2. Did the District Court err in requiring that the 

maintenance payments be taxable as income to the wife and 

deductible to the husband, and in allowing the maintenance 

payments to be made without interest? 

3. Did the District Court err by awarding all the 

income tax deductions for the minor children to the husband? 

A. Did the District Court err when it included. the 

Williams apartment property in the marital estate? 

5. Did the District Court err in its valuation of the 

Ashberry apartment property, the Williams apartment property, 

and the personal property? 

6. Did the District Court err in allowing the husband 

to manage specific monetary accounts of the children and to 

offset the children's education costs against maintenance or 

support? 

7. Did the District Court err when it made the child 

support obligation subject to review in four years? 

8. Did the District Court properly amend its judgment 

nunc tunc to require that the wife allow the husband to 

prepare and pay her income tax return for the tax year 1983 
or be ordered to report a portion of the payments husband had 

made to her as maintenance? 

The parties were married in December 1963. Eighteen 

years later they were divorced. Six children were born 

during the marriage. Presently, five are minors requiring 

support. 

The wife received a Bachelor's degree in Art from 

Montana State University in June 1963, and currently holds a 

provisional teaching certificate in Art and English. She did 

not pursue a career in art or teaching after marriage, but 

remained a.t home to care for the children. The husband is an 

attorney licensed to practice law in Montana with an established law practice in Missoula. The law practice is a 

professional corporation, solely owned by the husband. There 

are two full-time and one part-time associates working for 

the firm. 

At the time of dissolution, the net worth of the marital 

estate was approximately $600,000. The court divided the 

marital estate as follows: 
Husband Wife 

2110 Greenough (Family home) $ 98,345.82 

2.43 acre lot 

1515 Ashberry Apts $ 9,505.31 

1519 & 1521 Ashberry Apts 25,935.58 

21.6 West Main 17,956.55 

Williams' Apartments 89,839.54 

University Apartments (after taxes 16,900.00 

and payment of attorney fees) 

Fox Farm road lots 4,666.00 

130 West Broadway 16,900.00 

Sennes' Contract 16,925.83 

Keogh/IRA 5,167.00 

Williams Law Firm Pension 17,900.00 

Williams Law Firm, P.C. 150,000.00 

Personal Property 25,132.83 25,745.00 

Tax Refund 1,800.00 

TOTAL $396,294.64 $202,890.82 

The court found that the wife required maintenance for a 

reasonable period to allow her to complete her education and 

become employed. The wife was awarded $800 per month as 

maintenance and $1,353 per year for school fees and books 

beginning July 1984, and continuing until June 1988. The 

court also awarded the wife $162,597 additional maintenance, 

$16,259.70 a year for ten years commencing July 1988, with no 

interest to be paid on that amount. The court ordered that 

the husband could deduct the payments as maintenance for 

income tax purposes. 

Husband and wife were awarded joint custody of the five 

minor children. The wife will have physical custody of the 

children seven months out of the year, and the husband will 

have custody five months. The husband was ordered to make 

support payments to the wife of $250 per child while the 
children are residing with the wife and $100 per child while 

they are residing with him. All of the income tax deductions 

for the minor children were awarded to the husband. 

The wife's, husband's and children's attorneys' fees 

were ordered paid from the proceeds of the sale of the University apartments. 

Was it error to award maintenance payments to the wife 

because of her career foregone during marriage, and to set 

the value at $162,597? 

The District Court found that the wife sustained career 

value losses of $162,597, which included $76,313 in lost 

retirement benefits and $86,284 in salary differential. 

Finding of fact 36 stated: 

36. Donna introduced an economic consultant, Dr. Dennis O'Donald, to testify 

regarding Donna's income producing ability Dr. OfDonald evaluated Donna's 

educational background, her job skills . . . As set forth below, the Court has 

found that Donna should be entitled to 

$16,259.70 per year for ten years as 

maintenance in addition to the $800.00 

maintenance payment for the next four 

years. In consideration of this additional award of maintenance, the Court 

finds that the distribution of property 

hereinafter set forth is fair and equitable in light of all of the considerations 

set forth in section 40-4-202 MCA, and 

the Court rejects Donna's claims that she 

is entitled to any additional property 

distribution as a result of her claimed 

external contribution to the marriage. 

The District Court concluded: 

Beginning four years following the date 

of this decree, Mike shall pay $16,259.70 

a year for ten years to Donna for her 

claim against the estate. This sum will 

be paid on each anniversary of the date 

of this decree for ten years. No interest shall be paid on this amount; it 

shall be considered maintenance for tax 

purposes. 
The husband contends that the District Court should not have 

considered the career evaluation losses of $162,597 for 

maintenance purposes or for any other purpose. We do not 

agree with that contention. 

Section 40-4-203, MCA, sets forth the elements which a 

district court is required to consider in making a maintenance award. As pertinent here, S 40-4-203, MCA, states: 

(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 . . . 

(2) The maintenance order shall be in 

such amounts and for such periods of time 

as the court deems just . . . after 

considering all relevant facts including: 

(a) The financial resources of the party 

seeking maintenance, including marital 

property apportioned to him, and his 

ability to meet his needs independently. 

(c) The standard of living established 

during the marriage; 

(dl The duration of the marriage; 

(f) The ability of the spouse from whom 

maintenance is sought to meet his needs 

while meeting those of the spouse seeking 

maintenance. 

The District Court concluded that as a result of the 

wife's lost employment for a number of years during marriage, 

she suffered lost retirement benefits of $76,313. In other 

words, had the wife continued her employment during marriage, 

the $76,313 was the present value of the retirement benefits 

which would have accrued to her. Under 5 40-4-203, MCA, it 

is appropriate to consider retirement benefits in determining 
whether a spouse has sufficient property to provide for her 

reasonable needs, and whether she is able to support herself 

through appropriate employment. The terms sufficient property for reasonable needs and inability to support through 

appropriate employment have been discussed and interpreted as 

follows: 

The appropriate construction of the 

language of section . . . (1) (a) and (b) . . . is whether the spouse seeking 

maintenance lacks sufficient property and 

is unable to support herself through 

appropriate employment according to the 

standard of living established during the 

marriage. . . . We recognize there are 

public policy considerations behind 

rehabilitative spousal maintenance awards 

which, under appropriate circumstances, 

may give incentive to the spouse receiving maintenance to procure job skills so 

as to become self-sufficient. However, 

this public policy must be balanced with 

some : 

"realistic appraisal of the probabilities 

that the receiving spouse will in fact 

subsequently be able to support herself 

in some reasonable approximation of the 

standard of living established during the 

marriage, especially when a marriage of 

long-term duration is involved and the 

employment history shows a long-term 

absence of the spouse from the labor 

market with lack of a presently existinq 

employment skill." ~i~dsa~, 565 P.2d at 

205. 

In re Marriage of Dale A. Madson (1979), 180 Mont. 220, 

224-25, 590 P.2d 110, 112-13. -- See also, Levandowski v. 

Levandowski (Mont. 1981), 630 P.2d 239, 38 St.Rep. 1002. We 

conclude that the District Court properly considered the loss 

of retirement benefits in computing a maintenance award for 

the wife . 

In a similar manner, the District Court found a salary 

differential loss of $86,284 when it contrasted the salary 

the wife would have earned had she continued her outsj.de 

employment during marriage with what she will be able to earn 

after the dissolution. Again, under the terms of the 
statute, the consideration of such loss of earnings is significant in determining whether the wife is able to support 

herself through appropriate employment, and in considering 

her ability to meet her needs independently, together with 

the standard of living, duration of marriage, and ability of 

the husband to meet his needs while meeting the maintenance 

needs. We conclude that the District Court properly considered the salary differential in making a maintenance award to 

the wife. 

The parties also discuss whether or not it would be 

appropriate to consider the sustained career value losses in 

making a distribution of property. While it is not necessary 

that we rule on this question, we do point out that 

5 40-4-202, MCA, sets forth in great detail the elements to 

be considered by the District Court in making an equitable 

apportionment of a marital estate. Included in those elements are the requirement that the court consider the opportunity of each of the parties for future acquisition of 

capital assets and income. It seems clear that lost retirement benefits and loss of earnings as a result of salary 

differential properly could be considered as the court looks 

at the ability of the wife to make an acquisition of both 

capital assets and income in the future. 

The District Court here had a choice of distributing 

marital property to the wife or making an award of maintenance based upon the career value losses. The evidence 

submitted would have supported. a property distribution from 

the marital estate had that been done. Instead, the District 

Court chose to award maintenance of $16,259.70 per year for 

ten years, beginning four years after the date of the decree. 

We have extensively reviewed the findings of fact, 

conclusions and decree of the District Court. The District 
Court made over 40 separate written findings of fact covering 

distribution of the marital estate, support of the children 

and maintenance for the wife. These findings and the record 

demonstrate careful consideration on the part of the District 

Court of the complex facts presented by the strongly contesting parties. 

The findings of fact also show that the District Court 

carefully considered the needs of the wife in the next few 

years when education is reasonably required, and also her 

needs after that period up to and following retirement. In 

substance, the court concluded that the wife lacked sufficient property to provide for her reasonable needs during 

that period of time. The court considered the monetary 

effect of the foregone earnings, and after balancing all of 

the factors involved in a maintenance award under § 40-4-203, 

MCA, and considering the factors involved in the distribution 

of the marital estate under S 40-4-202, MCA, concluded that 

an award of maintenance was the appropriate manner of satisfying the reasonable needs of the wife. We approve the 

analysis of the District Court, and affirm the maintenance 

award to the wife in the total amount of $162,597. 

The husband also contends that the District Court erred 

in valuing the lost retirement benefits and earnings in the 

amount of $162,597. The District Court heard conflicting 

testimony from two experts on the issue of the value of 

foregone earnings. "The trier of fact is free to disregard 

the expert testimony of one party and adopt the testimony of 

the other party as long as the other party's evidence is 

credible and substantial." Rose v. Rose (Mont. 1982), 651 

P.2d 1018, 1020, 39 St.Rep. 1971, 1974. The District Court 

accepted the valuation submitted by the professor of economics, who testified as an expert for the wife. His 
qualifications and method of valuation were clearly established and set forth. We conclude that the record contains 

substantial credible evidence to support the value selected 

by the District Court. 

I1 

Did the District Court err in requiring that the maintenance payments be taxable as income to the wife and deductible to the husband, and in allowing the maintenance payments 

to be made without interest? 

The award of tax deductions is one factor among many 

which the court considers in determining an equitable division of the marital estate. "Where a property distribution 

ordered by a court includes a taxable event precipitating a 

concrete and immediate tax liability, such tax liability 

should be considered by the court before entering its final 

judgment." In re Marriage of Beck (Mont. 1981), 631 P.2d 

282, 285, 38 St.Rep. 1054, 1058. 

In substance, the District Court provided that the 

maintenance award was a tax deduction to the husband and 

taxable income to the wife. Here, the wife received a property distribution of $202,890.82 plus $9,600 per year maintenance for four years, $1,353 per year for four years for 

school fees and books, $11,150 per year in child support 

which decreases a-s the minor children become adults, and a 

yearly lump sum payment of $16,259.70 as additional maintenance beginning in four years. 

We conclude that the District Court fairly balanced all 

of the factors to be taken into consideration, including as a 

key part of that balancing, the allocation of income tax 

consequences. We conclude that the District Court did not 

abuse its discretion in requiring maintenance payments to be 

taxable as income to the wife and deductible to the husband. 
In addition, the wife contends that she should have been 

awarded interest on the total of $162,597. That contention 

could be made if that amount was a property distribution. 

However, maintenance accrues only as it becomes due. If the 

wife should die, the need for maintenance would terminate. 

Here the court chose to award maintenance over a period of 

ten years. We affirm the holding of the District Court that 

a award of future maintenance does not warrant an interest 

charge. 

Did the District Court err by awarding all the income 

tax deductions for the minor children to the husband? 

This issue has been substantially answered by our preceding analysis. In awarding the husband the tax deductions, 

the District Court stated: 

Because of his higher income, the deductions would result in a greater tax 

savings to Mike, and it would provide him 

with a greater potential to provide funds 

for the future use of the children, which 

is to their benefits. In addition, the 

level of support to be paid by Mike for 

the children's use compels that he should 

be allowed to claim the children as a tax 

deduction. 

We affirm the award of income tax deductions to the 

husband. 

Did the District Court err when it included the Williams 

apartment property in the marital estate? 

The husband testified that he and his parents bought the 

Williams apartment property together, but his parents paid 

the total down payment. He later paid them back for one-half 

of the down payment out of the profits made on the property. 

The husband contends that his interest in the property was a 

gift and therefore should not be included. a.s a part of the 
marita.1 estate. There is substantia.1 evidence to support a 

conclusion that a gift was not made. The husband contends 

more specific findings were required on the issue of gift. 

We conclude that the District Court need make specific findings only if it finds the contested property is a traceable 

gift. See In re Marriage of Herron !1980), 186 Mont. 396, 

FJe affirm the inclusion by the District Court of the 

Williams apartment property in the marital estate. 

Did the District Court err in its valuation of the 

Ashberry apartment property, the Williams apartment property 

and the personal property? 

Husband argues that the court erred in not accepting his 

expert's appraisal value. 

The trial judge is free to select and 

reject appraisal va.lues as he wishes, so 

long as there is substantial credible 

evidence in support of the values he 

selects. However, where the values 

presented at trial are widely conflicting, the trial judge must state the 

reasons for his selection. Where, as 

here, the trial judge states his reasons 

for selecting one appraisal over the 

others, there is no abuse of discretion. 

In re Marriage of Glass (Mont. 1985), 697 P.2d 96, 100-01, 42 

St.Rep. 328, 332 (citations omitted). Regarding the Williams 

and Ashberry apartment properties, the court stated that it 

accepted the appraisal offered by the wife's expert because 

it was more comprehensive, reflecting three different approaches to valuation. F7e conclude the court did not abuse 

its discretion in selecting the wife's appraisal. 

Husband contends that the property distribution should 

be readjusted in his favor because some household furnishings 

were counted twice when the District Court divided the marital estate. It does appear that some furnishings may have 
been counted twice. However, this Court will not attempt to 

review every element of a complex property distribution in 

the same manner as might be done if an accountant were auditing. Our function is to examine whether there is substantial 

evidence to support the property distribution. Viewing the 

overall apportionment in light of the District Court's comprehensive and extensive findings of fact, and considering 

the complexities involved, we conclude that the property 

distribution, including that of household furnishings, is 

af firmed. 

Did the District Court err in allowing husband to manage 

specific monetary accounts of the children and to offset the 

children's education costs against maintenance or support? 

Wife contends that husband has mismanaged certain monetary accounts of the children and that an independent trustee 

should be appointed. The court stated in Finding of Fact No. 

In order to address the concern that the 

appropriate accounts belonging to the 

children be kept separate from other 

accounts owned by the parties, the Court 

finds that Mike should provide Donna. with 

an annual report on the condition of the 

funds held for the benefit of the children . . . 

We find no abuse of discretion. The wife's concerns have 

been appropriately addressed and adequately provided for. 

Wife argues that the court's amended order creates havoc 

in her future budget by allowing husband to offset the children's education against support or maintena.nce and by ordering her to share the uninsured medical costs of the children. 

Finding of Fact No. 21 states: 

It is reasonable to require both parties 

to contribute equally to the cost of 

maintaining the children in their private 

grade schools. The Court Orders that 
this should be accomplished by Mike 

paying all of the tuition and book payment costs for the children as the same 

become due, and in turn, thereafter 

deducting 50 percent of those costs from 

future support and maintenance obligations owing to Donna. 

We find no abuse of discretion. The wife is capable of 

cal.cu1ating when the offset should take place and will have 

twelve months each year to prepare her budget for the offset. 

Husband was ordered to provide medical and dental coverage for the children. and to select an appropriate plan. 

However, the court also ordered each parent to bear 50 percent of the uninsured medical and dental costs. The wife 

argues that the husband should pay all the uninsured costs. 

We find no abuse of discretion. We note that husband should 

use reasonable care to select a plan that is adequa.te and 

keeps uninsured costs to a minimum. 

VII 

Did the District Court err when it made the child support obligation subject to review in four years? 

Wife contends that S 40-4-208, MCA, permits modification 

of a child support decree only upon a showing of changed 

circumstances so substantial and continuing as to make the 

terms unconscionable. Wife argues that husband intends the 

support obligation to be reviewed under a different standard. 

That contention is not an issue presently before us. The 

standard of review to be applied by the District Court in 

four years will be the standard then in effect under the 

appropriate statutes and cases. We will not presume the 

District Court will disregard the law. We conclude the court 

did not abuse its discretion in making the child support 

obligation subject to review in four years. 
VIII 

Did the District Court properly amend its iudgment nunc 

pro tunc to require that the wife allow the husband to prepare and pay her income tax return for the tax year 1983 or 

be ordered to report a portion of the payments husband had 

made to her as maintenance? 

Finding of Fact No. 43 gave the wife a choice with 

regard to filing an income tax return for the year 1983: 

The . . . [husband] has paid to the . . . [wife] the sum of $22,534.00 during the 

1983 tax year. . . . [Husband] has requested the . . . [wife] to allow him to 

prepare the returns for both parties . . . with the understa-nding that if . . . [husband] were allowed to do so, he 

would pay all taxes due and owing . . . 

The Court Orders that . . . effective 

January 1, 1983, that $200.00 per month 

of the payments made by . . . [husband] 

to . . . [wife] in 1983 for each of the 

parties' five minor children be treated 

as child support (for a total of $12,000) 

and the balance of $10,534 shall be 

treated as maintenance . . . with . . . [husband] entitled to deduct the same 

Erom his taxes, and . . . [wife] Ordered 

to declare those amounts as income; or, 

in the alternative, at . . . [wife's] 

option, that the arrangement proposed by . . . [husband] for preparation of both 

parties' returns in 1983 as set forth 

above shall be implemented providing that 

if . . . [wife] chooses this option, she 

peys all penalties and interest if - she 

has not requested extensions in the 

filing of her return, . . . In the event . . . [wife] fails to provide the necessary tax information and execute the 

documents within the time limitations set 

forth, . . . [husband] may proceed by 

filing a separate return declaring alimony as described in the first alternative 

set forth above. 

The wife argues that the retroa.ctive order will be 

considered invalid by the Internal Revenue Service. She 

bases this argument on various United States District Courts 

cases. No Montana federal district court cases or Ninth 
Circuit Court of Appeals cases are cited as authority to us. 

State district court's, of course, do not have jurisdiction 

to determine deductibility under the Internal Revenue Service 

Code. That is reserved to the federal courts. 

We conclude that the choice offered the wife was equitable in view of the overall distribution and award. We hold 

that the court did not abuse its discretion in awarding the 

husband maintenance nunc pro tunc. 

We affirm the District Court 

We concur: 

A