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 21992 SANDRA LOIS SACRY, CLERKOF SUPRKiiIilCOURT Respondent and Respondent. STATEOF 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, 1992Justice William E. Hunt, Sr., delivered the opinion of the Court. Appellant Dennis Keith Sacry appeals from a decree of dissolution fromthe FirstJudicialDistrictCourt, Lewisand 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 themarriage. At the time of trial, the oldestwas 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. Appellantbegan 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 registerednurse to pay for living expenses. After appellant graduated from dental school, the couple moved to Whitehall. The citizens of Whitehallhad built amedical/dental building for appellantand 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 orthodonticwork. Appellant alsopurchased anairplane in order to maintain his diverse geographicalpractice. The couple separated in 1988, prior to the acquisition of theHarlowtonand Scobeypractices. Respondent stopped working for appellantand obtained a nursing position at a psychiatrichospital 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, severalvehicles, andvariousbank accounts. Theparties maintained a familyhome in Cardwell and they owned other real property in Whitehall and Harlowton. Theparties alsohad a partnership interest inwhatwas called the Sacry ranch.At trial, theparties stipulated tomost of thevaluations 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 themarital estate totaled $586,675,with debts of $247,160. Thenetvalue of themartial estate distributed toappellantwas $191,090 while thenetvalue of the estate awarded to respondent was $128,425. The court ordered appellant to pay respondent $31,333 to equalizethedistribution 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. OnMay 16, 1991,appellant fileda motion requestingthe 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 limitedtoa determination of whether theDistrictCourt's findings

are clearly erroneous. In Re Marriage of Eschenbacher (Mont. 1992), 49 St.Rep. 392, 394. The courtmay award maintenance if it finds that the spouse seeking maintenance: (a) lacks sufficient property to provide for his reasonableneeds; and (b) is unable to support himself through appropriate employment

# . . 

# . . Section 40-4-203(1), MCA. To determinewhether a spouse has "sufficientproperty,"the court should considerwhether the property is income-consuming or income-producing. In Re Marriage of Cole (1988)

## , 234 Mont. 352, 356, 763 P.2d 39, 42. The courtmust also consider factorsset 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 otherhand, earns approximately $100,000a year. Theproperty 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 furtheradvance inher career as a nurse shewould need to obtain her B.A. degree. We hold that the award of maintenance by the District Courtwas 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 thedistrict 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 onJuly 13, 1990. Theunderlyingprinciplebehind the adoption of theguidelines 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 theadequacyand 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 appellanthad

an annualized income of $100,500, a net value of assets ofan 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 theminor children asdependents for income taxpurposes. Appellant contends that the District Court did not listwhich "income attributable to assets" were included or excluded. However, appellantdid notprovide the court with anydocumentation 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 incomesgreaterthan $39,500,exclusions from theguidelinesare 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. Theminimum support amount should be supplemented out of the remaining parental income. The amount of the supplement must be determined on a case-by-casebasis.46.30.1543 (2)

### ,A.R.M. Thus,the court isgiven 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 calculatechild support. We hold that the District Court did not abuse its discretion in the calculation of child support.

Did the DistrictCourt err in not apportioning child support? Appellant arguesthat because one of theminor childrenturned 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 supportbetween the twominor 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. Uponmotion of a party, the district courtmaymodify child supportpayments. Section 40-4-208(l), MCA. Section 40-4-208(5), MCA, provides in pertinent part: Provisionsforthesupportof a child are terminated by emancipation of the child or the child's graduation fromhigh school if the child isenrolled inhigh 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 thedecree stateswhen child supportshouldbe 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 supportpayments. IV. Did the District Court err in the distribution of themarital 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 themarital 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 severalyears. Her assistanceallowed him to develop, maintain, and expand a successful dental practice. Appellant has failed to offer evidence of any unique circumstances whichwould lead the DistrictCourttovalue thedentalpractice 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 thevaluation 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 wasworth $200,000. The District Courtbelieved 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

### byMontana'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 thediscretion of thedistrict court. InReMarriage 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 evidenceto supporttheDistrict Court's valuations of the marital estate's assets. We hold that the District Courtdid not err indistributingthemarital estate. We affirm.

We concur: