No. 90-490 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

IN RE THE MARRIAGE OF KEVIN THOMAS DUNN, Petitioner and Appellant, and 

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## 111EI94 DEBORA MARIE DUNN, Respondent and Respondent CLERK OFSUPWEMECOURT STATEOF MONTANA

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD: For Appellant: Daniel Donovan, Great Falls, Montana For Respondent: Don A. LaBar, Church, Harris, Johnson & Williams, Great Falls,Montana

Filed: Submitted on briefs: February 21, 1991 Decided: April 11, 1991

ClerkJustice Terry N. ~rieweiler delivered the Opinion of the Court. Kevin Thomas Dunn appeals from a decree of dissolution of his marriage to Debora Marie Dunn, entered in the Eighth Judicial District Court, Cascade County,which awardedDebora $500permonth for maintenance for sixyears. On appeal, Kevin contends that the District Court did not consider the statutory requirements for an award ofmaintenance to Debora, and that the amount and term of the maintenance award was excessive. After consideration of these issues,we affirm. Deboraand Kevinweremarried onJuly 23, 1983. They have one child, Corey, who was three years old at the time of the dissolution. At the time of the hearing, Kevin was 29 years old and Debora was 32 years old. For the first three years of theirmarriage, the couple lived inBillings,Montana. Kevin graduated fromEastern Montana College in 1984, with a bachelor's degree in bank operations management. Shortlyafterward, DeluxeCheckprintershired Kevin as a salesman. Deluxe transferred Kevin to Great Falls, Montana in 1986. Since then,he has continued to work for the company as a salesman. Debora has worked throughout the marriage. In Billings, she worked as an office manager for a real estate agency. After moving to Great Falls, she found work as an off ice manager for Pierce Flooring. She left briefly to work for a Great Falls insurance agency, and then was hired back again by Pierce.At the time of trial, Kevin's gross incomewas approximately $37,000 per year, while Deborals gross income was approximately $14,000 per year. The record reveals that both Kevin's and Deboralsexpenses exceeded their net incomes. In addition to Kevin's $37,000 salary, he received a company car, a 1990 Ford Taurus 4-door sedan at a monthly charge of $25.00; comprehensive health insurance, including dentaland opticalcoverage;an expense account formeals and lodging forhis sales trips; and a $5,000per year contribution to his retirementplan. The only fringe benefit Debora had was a minimal health care plan. The couple also owned a 1988 Honda Preludevalued at $9,000. However, the couple owed the bank $9,728.58 to pay for the Honda. The District Court awarded the car to Debora. The District Court made the following distribution of the marital estate: Asset Debora Kevin Net sale proceeds, familyhome Household furniture Honda Prelude Kevin's bank accounts Deborals bank accounts Deluxe stock Kevin s retirement 1990 contributions to retirement 1989 Income tax refunds TOTAL ASSETS $29,871.83 $22,680.82 Less Debts 12,509.78 7,452.75 Net Marital Estate 17,472.05 15,228.07In addition, the District Court ordered Kevin to pay Deborags attorney fees amounting to $2,112.50. The couple agreed that they should have joint legal custody of Corey. The District Court, however, granted physical custody to Debora, and ordered Kevin to pay $277.23 per month in child support. Furthermore, the District Court found that Itchildcare costs should be divided in accordance with the partiesg gross incomes: 28% to Respondent Wife; 72% to Petitioner Hu~band.~~ In addition to the child support, the District Court awarded Debora $500 per month for maintenance for a period of six years. In awarding maintenance to Debora, the District Court found that: The ~espondent-Wife is 32 years old. She is employed as office manager by Pierce Flooring in Great Falls, Montana. Respondent-Wife requests that she be awarded spousal maintenance in an amount and for such period of time as the Court deems equitable. From the evidence introduced, it is clear the Respondent-Wife lacks sufficientproperty to provide for her reasonable needs and is unable to support herself through appropriate employment. Respondent-Wife gave up a better job in Billings tomove toGreat Falls withherhusband in early 1986; she still is earning less now than when she left Billings. considering the need of Respondent-Wife to find appropriate employment or to acquire sufficient additional education or training for better employment, the standard of living established during the marriage, the duration of the marriage, the age and emotional condition of Respondent-Wife, and the ability of the Petitioner-Husband tomeet his needs while assistinghis spousewith maintenance, fora reasonableperiod of time, spousal maintenance is appropriate in this case for a period of six years at the rate of $500 per month commencing June 1, 1990. Kevin moved to alter or amend the District Court's decree. Inhis motion, Kevin argued, among other things,that the DistrictCourt erred in awarding maintenance to Debora. The District Court denied thismotion. Kevin appealstheDistrict Court'smaintenance award. MAINTENANCE The appropriate standard of review foran award ofmaintenance is established by 1 40-4-203,MCA. InRe the Marriage of Sullivan (1990), 243 Mont. 292, 298, 794 P.2d 687, 690. As we stated in Sullivan, 794 P.2d at 690: An award ofmaintenance ispremised upon a findingby the court that the individual seeking maintenance 'lacks sufficientproperty toprovide forhis reasonable needs; and is unable to support himself through appropriate employment. Section 40-4-203(1)(a)(b)

## , MCA. In this case, Kevin maintains that Debora's share of the marital property and her current employment are more than sufficient to provide for her reasonable needs. The District Court record and the District Court's findings tell a different story. The record reveals that Debora's $940 inmonthly income falls far short ofher monthly expenses. The DistrictCourt's findings show thatDebora's monthly budget ran a deficit of $1,033.77. Kevin argues that Debora could erase hermonthly deficit with property acquired from themarital estate. Indetermining whether a spousehas sufficient marital property to support herself, this Court will consider whether the spouse seeking maintenance has received income producing or income consuming assets. In Re the Marriage of Cole

(1988), 234 Mont. 352, 356, 763 P.2d 39, 42; InRe the Marriage of Goodman (1986), 222 Mont. 446, 451, 723 P.2d 219, 222. A review 5of the marital property distribution reveals that the District Court awarded Debora the Honda Prelude ($9,000) and furniture

($2,445). Neither is income producing property. See Cole, 763 P.2d at 42. Subtracting these two above items from Debora1sshare of themarital assets will leave Debora with $18,536.83 inmarital assets or I1incomeproducing assets.I1 After paying the $12,509.78 of debts assigned to Debora, she will have $6,027.05 of assets remaining. This amount of income producing property would be insufficient to fulfill her reasonable economic needs. Next, the District Courtmust consider all the relevant facts in determining an appropriate maintenance award. Section 40-4- 203(2)

## ,MCA. That section is as follows: (a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent towhich aprovision for support of a child living with the party includes a sum for that party as custodian; (b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (c) the standard of living established during the marriage;the duration of the marriage; (el the age and the physical and emotional condition of the spouse seeking maintenance; and (f) theability of the spouse from whommaintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Section 40-4-203(2)(a) -(f) 

## , MCA.As we stated in Sullivan, "[a] specific finding by the District Court as to each of these relevant facts is not required

as long as the court considered proper information in addressing these facts and based its decision upon substantial credible evidence." Sullivan, 794 P.2d at 691; Cole, 763 P.2d at 43. Furthermore, "these relevant facts are to be considered by the court as a whole in the determination of the final maintenance award." ~ullivan, 794 P.2d at 691. There is substantial credible evidence to supportthe District Court's monthlymaintenance award of $500 to Debora. The record reveals, and the ~istrict Court found, that Deborahas insufficient financialresourcesto provide for her reasonable needs. The maintenance payment also allows Debora the opportunity to return to school to improve her employment prospects. Her current job is insufficient tomeet her monthly expenses. The record reveals that Kevin is capable of making the maintenance payments. TheDistrict Court, inawardingmaintenance toDebora,clearly reviewed the couple's work history, skills, standards of living, and the parties1present employment. Based on these facts, the District Court's award of maintenance to Debora is supported by substantial credible evidence. Accordingly,we affirm theDistrictCourt'smaint nance award. 

# PWe Concur:



# &g~--/ Justices