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No. 99-012

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 242N

IN RE THE MARRIAGE OF

SCOTT E. MEYERS,

Petitioner and Appellant,

and

DIANA L. MEYERS,

Respondent and Respondent.

APPEAL FROM: District Court of the Twelfth Judicial 

District,

In and for the County of Hill,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Daniel A. Boucher; Altman & Boucher, Havre, Montana

For Respondent:

Diana Lachman Meyers, Pro Se, Havre, Montana

Submitted on Briefs: June 17, 1999 

Decided: October 14, 1999

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶ Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court. 

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¶ Scott E. Meyers (Scott) appeals from the decision of the District Court for the 

Twelfth Judicial District, Hill County, dissolving his marriage to Diana L. Meyers 

(Diana), distributing the marital property, and awarding maintenance to Diana. This 

Court dismissed Diana’s cross-appeal because notice of cross-appeal was not timely 

filed. We affirm in part and reverse and remand in part.

Issues

¶ 1. Did the District Court err in awarding Diana half of the equity in the Havre 

house? 

¶ 2. Did the District Court err in holding Scott responsible for the mortgage, 

insurance, and tax payments while Diana occupies the Havre house until August 

2000?

¶ 3. Did the District Court err in awarding maintenance to Diana until December 

2000? 

¶ Because Diana’s cross-appeal was dismissed, we are precluded from addressing the 

issues she raises in her respondent’s brief to the extent they constitute a cross-appeal.

Standard of Review

¶ The standard of review of a district court's division of marital property is whether 

the court's findings of fact are clearly erroneous. If substantial credible evidence 

supports the court's findings and judgment, this Court will not change the district 

court's decision unless the court abused its discretion. See In re Marriage of Smith 

(1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525 (citation omitted).

¶ The standard of review for maintenance awards is whether the district court's 

findings are clearly erroneous. See In re Marriage of Smith (1995), 270 Mont. 263, 

269, 891 P.2d 522, 526 (citations omitted).

Background

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¶ Scott and Diana were married in Havre, Montana in 1991. Shortly before the 

marriage, Scott purchased a house in Havre (Havre house) with a $20,000 

downpayment gifted to him by his family. Scott and Diana separated and Scott 

petitioned for dissolution of their marriage in 1997. After a trial, the District Court 

issued its findings of fact, conclusions of law, and decree. Scott appeals from the 

portions of the District Court’s decree awarding Diana half of the equity in the 

Havre house, holding Scott responsible for the mortgage, insurance, and tax 

payments while Diana occupies the house until August 2000, and awarding 

maintenance to Diana until December 2000. 

Discussion

¶ 1. Did the District Court err in awarding Diana half of the equity in the Havre 

house?

¶ The District Court found that the total equity in the Havre house amounted to 

$25,000, which reflected Scott’s initial downpayment of $20,000 and the mortgage 

payments made since the purchase of the house. The value of the house had not 

increased during the parties’ marriage. The District Court awarded Diana $12,500 of 

the equity in the Havre house.

¶ The distribution of property is governed by § 40-4-202, MCA, which provides in 

pertinent part:

(1) In dividing property acquired prior to the marriage; property acquired by 

gift, bequest, devise, or descent; . . . the court shall consider those 

contributions of the other spouse to the marriage, including:

(a) the nonmonetary contribution of a homemaker; (b) the extent to which 

such contributions have facilitated the maintenance of this property; and (c) 

whether or not the property division serves as an alternative to maintenance 

arrangements. 

Interpreting this statute, we have held that "preacquired or gifted property need not be 

included in the marital estate unless the nonacquiring spouse contributed to its 

preservation or appreciation." In re Marriage of Engen, 1998 MT 153, ¶ 29, 289 Mont. 

299, ¶ 29, 961 P.2d 738, ¶ 29. We have also held that if gifted or preacquired assets have 

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not appreciated during a marriage, their value at the dissolution of the marriage cannot be 

considered a contribution from the marital effort. See In re Marriage of Balsam (1979), 

180 Mont. 129, 134, 589 P.2d 652, 654; In re Marriage of Goodman (1986), 222 Mont. 

446, 449, 723 P.2d 219, 221. 

¶ Here, the District Court found that Scott and Diana should share equally in the 

equity of the Havre house because they had lived together as a family and therefore 

had to have contributed to each other’s material needs. While that may be true, 

$20,000 of the house’s equity is Scott’s separate property and cannot be considered a 

product of Diana’s contribution to the marriage because the house did not appreciate 

in value during the marriage. The $5,000 of additional equity, however, can be 

considered a product of Diana’s contribution to the marriage to the extent it 

accumulated during the marriage. Scott and Diana should thus share equally in that 

portion of the house’s equity accumulated during their marriage. 

¶ Under § 40-4-202, MCA, and our case law interpreting that statute, we determine 

that Diana was only entitled to half of the $5,000 equity in the Havre house to the 

extent it was accumulated during the marriage. We therefore hold that the District 

Court erred in awarding Diana half of the entire $25,000 equity in the house. We 

reverse on this issue.

¶ 2. Did the District Court err in holding Scott responsible for the mortgage, 

insurance, and tax payments while Diana occupies the Havre house until August 

2000?

¶ Scott argues that by holding him responsible for the mortgage, insurance, and tax 

payments on the Havre house while Diana occupies it, the District Court 

impermissibly created an interest in property where none existed and then 

distributed the nonexistent property. Scott bases this argument on the assertion that 

the court labeled this financial obligation a part of the disposition of the marital 

estate. In actuality, the District Court labeled Diana’s two-year estate in the Havre 

house a part of the disposition of the marital estate, distinguishing it from an award 

of maintenance. 

¶ Scott’s responsibility for the mortgage, insurance, and tax payments is not part of 

the distribution of the marital estate, but merely his preexisting and continuing 

obligation to maintain his property. Especially in light of our holding that Diana is 

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only entitled to half of the house’s equity accumulated during the marriage, Scott’s 

financial obligation does not constitute a division of property or payment for Diana’s 

benefit. Scott is responsible for the mortgage, insurance, and tax payments to 

preserve his interest in the property. 

¶ We hold that the District Court properly determined and correctly concluded that 

Scott should be responsible for the mortgage, insurance, and tax payments on the 

Havre house while Diana resides therein until August 2000.

¶ 3. Did the District Court err in awarding maintenance to Diana until December 

2000? 

¶ Diana holds a Bachelor and a Master of Science in Nursing and had been steadily 

employed in that field since 1974. In 1997 she was discharged from her most recent 

position. She is licensed as a registered nurse in Montana. The District Court found 

that Diana is capable of earning at least $35,000 per year. The District Court 

nevertheless awarded Diana temporary maintenance until December 2000 because it 

would take her "some time to find appropriate employment." The maintenance 

payments were set to begin at $800 monthly, decrease to $600 in January 1998, and 

further decrease to $300 in September 2000. 

¶ Section 40-4-203, MCA, governing maintenance, provides in pertinent part:

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 or is the 

custodian of a child whose condition or circumstances make it appropriate 

that the custodian not be required to seek employment outside the home. 

An award of maintenance is dependent upon satisfying the threshold requirements under 

§ 40-4-203(1), MCA, that Diana lacks sufficient property to provide for her reasonable 

needs and is unable to support herself through appropriate employment. See, e.g., In re 

Marriage of Doolittle (1994), 265 Mont. 168, 172, 875 P.2d 331, 334. 

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¶ In this case, the threshold requirement that Diana is unable to support herself 

through appropriate employment has not been satisfied. The District Court found 

that Diana would presently be able to work in the nursing profession. While Diana 

may be reluctant to leave Havre, the record shows that Diana is highly qualified in 

the field of nursing and is presently capable of obtaining appropriate employment. 

The District Court’s award of temporary maintenance because it will take Diana 

some time to find appropriate employment does not satisfy the threshold 

requirements under § 40-4-203(1), MCA, and finds no support in the record. Diana 

had been unemployed for fourteen months prior to the trial. She claims that she is 

unable to obtain appropriate employment in Havre and the surrounding areas 

because of the lack of jobs in the area and because she has been ostracized by the 

employment community in response to a wrongful discharge suit she has filed against 

a former employer. If Diana’s characterizations of her employability in Havre are 

accurate, over two years of maintenance payments will not assist Diana in procuring 

employment in Havre. The District Court found that Diana was presently capable of 

working in the nursing profession and supporting herself. The court’s award of 

maintenance was clearly erroneous because the threshold requirement under § 40-4-

203(1)(b), MCA, that Diana is unable to support herself through appropriate 

employment, has not been satisfied.

¶ Under § 40-4-203, MCA, we determine that an award of maintenance is not 

appropriate because Diana is able to support herself. We hold that the District Court 

erred in ordering Scott to pay maintenance to Diana until December 2000. 

¶ Affirmed in part, reversed in part and remanded to the District Court for further 

proceedings consistent with this Opinion.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

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/S/ WILLIAM E. HUNT, SR.

/S/ JAMES C. NELSON

/S/ TERRY N. TRIEWEILER 

/S/ KARLA M. GRAY

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