No. 91-420 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

-,.~ . . *. 

IN RE THE MARRIAGE OF ! 

DENNIS KEITH SACRY, 8; 

Petitioner and Appellant, I D - - 

and MAY 2 2 1992 

SANDRA LOIS SACRY, 

CLERK OF SUPRKiiIil COURT 

Respondent and Respondent. STATE OF IWOtUTANA 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark P. Yeshe, Helena, Montana 

For Respondent: 

Ann L. Smoyer, Helena, Montana 

Filed: 

Submitted on Briefs: February 27, 1992 

Decided: May 22, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Dennis Keith Sacry appeals from a decree of 

dissolution from the First Judicial District Court, Lewis and Clark 

County. 

We affirm. 

Appellant raises four issues for our consideration. 

1. Did the District Court err in awarding maintenance to 

respondent? 

2. Did the District Court err in computing child support? 

3. Did the District Court err in not apportioning child 

support? 

4. Did the District Court err in the distribution of the 

marital estate? 

Appellant and respondent, Sandra Lois Sacry, were married on 

August 16, 1969. Three children were born during the marriage. At 

the time of trial, the oldest was 20 years old and did not live at 

home. The other two children, one 17 years old, and one 13 years 

old, lived primarily with the respondent. 

Prior to the marriage, appellant received his undergraduate 

degree from Carroll College while respondent achieved her three 

year nursing certificate. Appellant began his career in dentistry 

upon graduation from dental school in 1974. Both parties 

contributed financially to appellant's successful completion of 

dental school. Appellant was able to obtain loans and grants to 

pay for his education, while respondent worked as a registered 
nurse to pay for living expenses. After appellant graduated from 

dental school, the couple moved to Whitehall. The citizens of 

Whitehall had built a medical/dental building for appellant and his 

uncle, who was a physician. Respondent worked as a nurse for 

appellant's uncle until the youngest child was born in 1978. In 

1979, respondent returned to work for appellant as an office 

manager and dental assistant. 

Since the opening of appellant's practice, the business has 

thrived. In 1985, appellant expanded his practice to include 

Butte. In 1989, he purchased a dental practice in Harlowton. In 

addition, appellant rented an office in Scobey to perform 

orthodontic work. Appellant also purchased an airplane in order to 

maintain his diverse geographical practice. 

The couple separated in 1988, prior to the acquisition of 

the Harlowton and Scobey practices. Respondent stopped working for 

appellant and obtained a nursing position at a psychiatric hospital 

in Butte. At the time of trial, respondent was still working at 

the hospital and attending college at Bozeman. 

Over the years, the couple accumulated a considerable amount 

of marital assets. The marital estate consisted of investment 

funds, gold and silver, IRAs, retirement moneys, several vehicles, 

and various bank accounts. The parties maintained a family home in 

Cardwell and they owned other real property in Whitehall and 

Harlowton. The parties also had a partnership interest in what was 

called the Sacry ranch. 
At trial, the parties stipulated to most of the valuations of 

property. The parties disputed the value of the dental practice 

and its assets. Each side presented their own expert witness 

regarding the value of the dental practice. 

On March 22, 1991, the District Court issued it findings of 

fact and conclusions of law and decree of dissolution. The court 

found that the value of the marital estate totaled $586,675, with 

debts of $247,160. The net value of the martial estate distributed 

to appellant was $191,090 while the net value of the estate awarded 

to respondent was $128,425. The court ordered appellant to pay 

respondent $31,333 to equalize the distribution of the estate. The 

court also awarded respondent maintenance of $300 a month for 

18 months. 

The parties were awarded joint custody of the two minor 

children who primarily reside with respondent. The court ordered 

appellant to pay child support in the amount of $1763 a month. 

Appellant appeals the District Court's findings set out in the 

decree of dissolution. 

On May 16, 1991, appellant filed a motion requesting the court 

to amend its findings and order, or to alter its judgment. On 

June 27, 1991, the court denied appellant's motion. On July 19, 

1991, appellant filed his notice of appeal. 

I. 

Did the District Court err in awarding maintenance to 

respondent? 
In reviewing an award of maintenance, this Court's role is 

limited to a determination of whether the District Court's findings 

are clearly erroneous. In Re Marriage of Eschenbacher (Mont. 

1992), 49 St.Rep. 392, 394. The court may award maintenance 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 . . . . 

Section 40-4-203(1), MCA. 

To determine whether a spouse has "sufficient property," the 

court should consider whether the property is income-consuming or 

income-producing. In Re Marriage of Cole (1988) , 234 Mont. 352, 

356, 763 P. 2d 39, 42. The court must also consider factors set out 

under 5 40-4-203(2), MCA, when deciding the amount and duration of 

maintenance. 

Respondent earns approximately $29,000 a year working as a 

registered nurse and receives a $1,000 yearly allotment as an 

enrolled member of the Confederated Salish and Kootenai Tribes. 

Appellant, on the other hand, earns approximately $100,000 a year. 

The property that respondent received in the dissolution decree is 

mainly income-consuming property. Her nursing certificate is 

insufficient for her to advance in her career. Her income would 

not allow her to maintain her standard of living, nor would it 

enable her to complete her college courses necessary for a B.A. 

The District Court determined that for respondent to further 
advance in her career as a nurse she would need to obtain her B.A. 

degree. We hold that the award of maintenance by the District 

Court was not clearly erroneous. 

11. 

Did the District Court err in computing child support? 

In reviewing child support, this Court has stated that a 

presumption exists in favor of the district court's determination, 

and this Court will reverse the district court only if it has 

abused its discretion. In Re Marriage of Graveley (1990), 244 

Mont. 137, 139, 796 P.2d 585, 586-87. 

The Department of Social and Rehabilitative Services adopted 

child support guidelines pursuant to 5 40-5-209(5), MCA, which 

became effective on July 13, 1990. The underlying principle behind 

the adoption of the guidelines is that a child's standard of living 

should not, to the degree possible, be adversely affected because 

his or her parents are not living in the same household. 

46.30.1501, A.R.M. The child support guidelines are used in 

conjunction with the factors set out in 5 40-4-204, MCA, to 

determine the proper amount of child support awarded. The use of 

the guidelines creates a rebuttable presumption of the adequacy and 

reasonableness of child support awards. 46.30.1507, A.R.M. 

In calculating child support, the court found that respondent 

had an annualized income of $28,143, a net value of assets of 

$160,590, and taxes of $7,140. The court found that appellant had 

an annualized income of $100,500, a net value of assets of 
an annualized income of $100,500, a net value of assets of 

$198,800, and taxes of $34,000. The District Court used the 

26.1 percentage of parental income, as stated in the guideline 

tables, to arrive at the child support amount. The court ordered 

appellant to pay $1,763 a month in child support, and allowed him 

to claim the minor children as dependents for income tax purposes. 

Appellant contends that the District Court did not list which 

"income attributable to assets" were included or excluded. 

However, appellant did not provide the court with any documentation 

relating to his disposable income, nor did he provide the court 

with any computation regarding how much he should pay in child 

support. Respondent provided the court with her support 

calculation which was prepared by her accountant. The amount the 

court awarded closely approximated the testimony of the accountant 

and the amount appellant was paying prior to the decree of 

dissolution. 

Appellant also contends that the 26.1 percentage should be 

reduced because it is not applicable to incomes greater than 

$39,500. While it is true that the guideline tables do not apply 

to incomes greaterthan $39,500, exclusions from the guidelines are 

set out in 46.30.1543, A.R.M. 

When incomes exceed this amount the first $39,500.00 

should first be applied in the appropriate column and 

line which shows the number and age of the child to 

arrive at a minimum support amount. The minimum support 

amount should be supplemented out of the remaining 

parental income. The amount of the supplement must be 

determined on a case-by-case basis. 
46.30.1543 (2) , A.R.M. Thus, the court is given broad discretion in 

determining the appropriate amount of child support. The District 

Court properly considered the financial situation of the parties, 

the needs of the children, and used 26.1 percent to calculate child 

support. We hold that the District Court did not abuse its 

discretion in the calculation of child support. 

Did the District Court err in not apportioning child support? 

Appellant argues that because one of the minor children turned 

18 on December 28, 1991, the District Court should have provided 

for future adjustment for lower child support payments after the 

child turned 18. Specifically, he contends the court should have 

apportioned the support between the two minor children and allowed 

appellant to terminate support without having to go through the 

expense of a motion. Appellant fails to cite any authority for 

this proposition. 

Procedure for modification of child support payments is 

governed by 5 40-4-208, MCA. Upon motion of a party, the district 

court may modify child support payments. Section 40-4-208(l), MCA. 

Section 40-4-208(5), MCA, provides in pertinent part: 

Provisions for the support of a child are terminated 

by emancipation of the child or the child's graduation 

from high school if the child is enrolled in high school, 

whichever occurs later, but in no event later than the 

child's 19th birthday, unless the termination date is 

extended or knowingly waived by written agreement or by 

an express provision of the decree. 
No provision in the decree states when child support should be 

terminated. When the second child reaches age 18, or graduates 

from high school, whichever occurs later, appellant may then 

petition the court for modification of child support. We hold the 

District Court did not abuse its discretion in not apportioning 

child support payments. 

IV. 

Did the District Court err in the distribution of the marital 

estate? 

Appellant's main contention is that the District Court should 

not have included the Scobey and Harlowton practices in the 

division of the marital estate, and that the court's valuation of 

appellant's dental practice was too high. 

Our standard of review in the division of marital property is 

whether the district court's division of the marital estate is 

clearly erroneous. Interstate Production Credit Assn. v. DeSaye 

(Mont. 1991), 820 P.2d 1285, 1287, 48 St.Rep. 986, 987. 

Appellant argues that the Scobey and Harlowton practices 

should not have been included in the marital estate because they 

were acquired after the parties had separated. The general rule 

for the court to value the marital estate is at or near the time of 

dissolution, unless unique circumstances of the marital 

relationship exist. In Re Marriage of Swanson (1986) , 220 Mont. 

490, 495, 716 P.2d 219, 222. 
Respondent had worked for appellant as an office manager and 

dental hygienist for several years. Her assistance allowed him to 

develop, maintain, and expand a successful dental practice. 

Appellant has failed to offer evidence of any unique circumstances 

which would lead the District Court to value the dental practice at 

the time of separation. We hold that the District Court's 

inclusion of the Harlowton and Scobey practices in the marital 

estate was not clearly erroneous. 

With regard to the valuation of the dental practice, at trial 

each side presented an expert to testify about the value of 

appellant's dental practice. Appellant's expert, Mr. Fladmo, a 

CPA, testified that the value of the dental practice was $65,000. 

Respondent's expert, Mr. Danzer, also a CPA, testified that the 

practice was worth $200,000. The District Court believed that the 

first valuation was too low because the expert failed to give 

sufficient consideration to the lack of competition of dental 

practices in rural areas and appellant's increased income over the 

past two years. The court reasoned that the second valuation was 

too high because the expert based his calculations from a study 

which used cities that are large by Montana's standard and that the 

practice was unique because it was located in four separate areas. 

The court averaged the two valuations to arrive at $133,000. The 

averaging of values given by experts to arrive at an equitable 

distribution is within the discretion of the district court. In Re 
Marriage of Goodmundson (1982), 201 Mont. 535, 539, 655 P.2d 509, 

511. We hold the District Court did not abuse its discretion in 

averaging the values given by the experts. 

With regard to the various other valuations and distribution 

of assets that appellant asserts are incorrect, we need only state 

that there is substantial credible evidence to support the District 

Court's valuations of the marital estate's assets. We hold that 

the District Court did not err in distributing the marital estate. 

We affirm. 

We concur: