No. 84-374 INTHE SUPREME COURT OF THE STATEOF MONTANA

INRE THEMARRIAGE OF LINDEN EDWARDS

## , Petitioner andAppellant, and MARILYN EDWARDS,Respondent and Respondent.

APPEAL FROM: District Court of Nineteenth Judicial District, Inand for the County of Lincoln, TheHonorable RobertM. Holter,Judgepresiding.

COUNSELOF RECORD:

ForAppellant:

Keller & German;Ann C. German,Libby,Montana

For Respondent: Douglas & Bostock;William A. Douglas, Libby,Montana

Submitted on Briefs: Feb. 22, 1985 Decided: May I,1985

ClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court.Husband appeals from adecree of dissolutionentered in the District Court of the Nineteenth Judicial District, Lincoln County. Appellant claims itwas an abuse of discretion to award thewife indefinitemonthly alimony in addition to a disproportionate property share when the wife is not disabled. On appeal, the husband also claims that the court erroneously considered the husband's living arrangements, thus compensating the wife for his "marital misconduct." We affirm the lower court judgment. The court considered the statutory factors under the Uniform Marriage and Divorce Act regarding property division and maintenance and referred to the factors in its findings of fact and conclusions of law. The record shows the employment of conscientious judgment in arriving at a substantially just result. Where the record fails to show an arbitrary exercise of discretion and the ruling is not clearly erroneous,we will not overturn a iudgment. Appellant brings this appeal to our Court upon the following issues: 1. Did the lower court abuse its discretion in awarding the wife "lifetime"alimony of $500monthly where shegot the family residence, he got the property he had acquired through inheritance,and she was not disabled? 2. Did the court erroneously consider marital misconduct in dividing the marital property and awarding maintenance? Linden and Marilyn Edwards were married. at Coeur dlAlene,Idaho, on March 7, 1959. Linden adopted her two children and the couple had.fivemore children of their own. At Linden's insistence, Marilyn stayed home and occupiedherself aswife,mother and housekeeper. As thebreadwinner, Lindenhad avaried career including loggingandmining. For

a number of yearshe has worked at ASARCO, now as a supervisor making $33,000 per year. Parties resided the last twenty-three years of their marriage in the home in Libby. Tn 1980 they purchased acreage atTroy,Montana,with an inheritance from Linden's mother. After the parties separated in August 1983, Marilyn secured part-time seasonal employment performing menial tasks at H & R Block during the 1984 tax season. She had acquired her high school equivalency degree in 1976 and had attended

some adult education classes to improveher chances of suitable employability

# . Unfortunately, her inability to type more than 30 words per minute hampered her in her numerous applications for jobs. Following separation inAugust 1983,the parties divided their cash in the bank, $1300 to Linden and $1200 to Marilyn, and apportioned a $2500 certificate of deposit for Marilyn's use. Linden made voluntary payments of $700 per month from September 1, 1983, to April 1, 1984, for the support of theirdaughter, Theresa,her baby and Marilyn. He modified hispayments to $600per month in May 1984. Linden's petition for dissolutionwas filedDecember 7, 1983. He proposed paying respondent $400 per month for the support of Theresa to the age of majority or completion of high school,whichever comes later. Theresa was eighteen in October 1984 and should graduate from high school in June 1985. He proposed to pay respondent the sum 0-f$200 per month for "spousal support" for a period of five years. Finall-y,Linden's petition stated: "VIII. That the parties have accumulated real and personal property which should be distributed as follows:

### TO PETITIONER - 

### Real Property in 

### Troy,MT 1971 ~ord Pickup - 

### 1976 Fort [sic]Pinto" TO RESPONDENT - 

### House in Libby, MT 1976 Ford Respondent answered with a 

### prayer for $200 per month for the supportof Theresa and $690per month as support for respondent till she should.marry or die, provided that the amount should be red-ucedby any amounts ofmonthly income she would earn. She agreed to his proposed property divi-sion, but asked the court to consider additional items of personal property tomake an equitabled-istribution. At the hearing on May 22, 1984,Marilyn testified that she was residing in the family home. She acknowledged that two adult children living at home were contributing toward their share of expenses a total of $250 per month. 1,inden testified thathe lived in an apartment and not on theproperty at Troy because the house was still uninhabitable. He admitted sharing expenses with a lady roommatewho was earning about $16,000per year. He was not contributing to the roommate's support. The court divided the property in the manner both parties requested and granted custody of Theresa to respondent with $200 per month support to age eighteen or comp1.etion of high school. The court awarded respondent $500 per month alimony to continue until she remarry,cohabit or die. Issue No. --

### I: Abuse - 

### of discretion 

### - in awarding indefinite alimonx? Appell-antcontends thathe proposed an "inequitable" property division so that respondent would have the bulk of the marital-estate and then he would not "be no welfare state." In 

### the motion for reconsideration,he contended that the court gave him no credit for the amount of his inheritance invested in 

### his real property at Troy. He criticized the court for noting the inheritance in thefindings of fact but not debiting it from themarital estate in the conclusionsof law. The appellant has changed his theory on the property several times. Inhis petition inDecember 1983, he referred to property "the parties have accumulated" and proposed the present distribution. Petitioner's proposed findings of fact and conclusions of 1.aw in May 1984 reccmmended a formula which included $3,000 of the $35,000 inheritance in the family pot, and then debited $32,000 from the total property for Linden's inheritance. This formula would leave the marital share at $25,412.50 each, Marilyn to have a $15,000

excess. After judgment, his motion for reconsideration with the identical property division as proposed all along, Linden's share of the marital estate had dropped to $15,415 and Marilyn's was at $40,000. Finally on appeal., Linden's share remained at $15,415 and Marilyn's had risen to $42,500. The courtawarded the property asboth parties requested. Acquiring property by gift or devise is only one factor to be considered in determining the respective contributions ofbothparties. Inre the Marriage of Collett (Mont. 1981), 621P.2d 1093, 1096, 38 St.Rep. 36, 39. The court referred to the inheritance in the findings of fact, es we11 as to Marilyn's twenty-five years as a homemaker. The court is not required to distribute equally but rather to consider the criteria set forth in § 40-4-202 to make an equitabledistribution. In re the Marriage of Hecht (Mont. 1982), 649 P.2d 1257, 1259, 39 St.Rep. 1455, 1458. The statute is flexible and vests discretion in the District Court to look at each

case individually. In re the Marriage of Laster (Mont. 1982), 643 P.2d 597, 601, 39 St.Rep. 737, 740; In re the Marriage of Martens (Mont. 19811, 637 P.2d 523, 526, 38 St.Rep. 2135, 2138.We hold that the court did not abuse its discretion in its distribution of property. The court submitted detailed findings which noted the source of themarital properties and the nature of the marital contributions. "The findingswere detailed, reasoned, and supported by the evidence presented a.ttrial.. 

# ..

# .It Marriage of Levandowski (Mont. 1981), 630

In the conclusions of I.aw,the court distributed the property asproposed by appellant: "4. That theproperty of the parties is distributedas follows: PETITIONER'S PROPERTY Real Property $47,000.00 Otherproperty per Exh. "B" Total $53,615.00 Lessdebt 8,200.00 NET TOTAL $45,415.00

RESPONDENT'S PROPERTY Real Property $36,000.00 Other Property per Exh. "A" 4,070.00 TOTAL

The court let stand the proposed division as equitable. Whether considered as a disproportionate share of marital property to either party is irrelevant where both parties agreed to a division which is substantially fair. The court concluded: "TheCourt will-not order adjustment of differences in property distribution because of Petitioner's ability to pay in the light of support requirements herein.l1 The court then proceeded to determine the necessity for maintenance.

### The award of maintenance is based upon the particular circumstances, and not upon 

### amandatory adjustment forproperty division. The courthas the discretion to grant maintenance to the party seeking maintenance who lacks sufficient property to provide for his or her reasonable needs and is unable to meet those needs through appropriate employment. Section 40-4-203, MCA. 

### "TheAct provides for the coordination of property distribution and maintenance to assure that

a spouse without the ability to support herself will be maintained at 

### a similar standard of living." Levandowski, 630P.2d at 242. "Sufficient property" is income-producing property. Laster, 643 P.2d at 601; In re the Marriage of Bowman (Mont. 1981), 633 P.2d 1198, 1200, 38 St.Rep. 1515. The court does not abuse its discretion in refusing to force the sale of a family home. In re the Marriage ofMadson (1979),180Mont. 220, 223, 590 P.2d 110, 112. In denying petitioner's motion for reconsideration, the court reasoned that itwas to petitioner's benefit for respondent to receive the family home. If 

### there were an inequality in the marital property division in so doing, it inured to petitioner's benefit in lesser monthly expense to maintain respondent's standard of living. Appellant argues that he should notpay extended maintenance becausehe did not receive income-producingproperty. He is not the party seeking maintenance and he does have an income. Respondent received property which cannot provide forher reasonableneeds. The issue iswhether respondent is able to support herself through suitable employment. The evidence supported a conclusion that she hasmade efforts to become employableand has tried to find employment. Linden's projection ofher trainabilityand improved employabilitywas vague, while her efforts were clearly on the record. The

### judge reasonably concluded that Marilyn could earn about $200 per month on a yearly basis. Determining her reasonable needs based upon a conservative projected monthly budget of $720 per month after the daughter leaves home, the court concluded that she would need $500 per month in maintenance in addition towhat she could earn. We hold that the courtdid not abuse discretion in this award of maintenance. The court considered her financial resources including the property apportioned to her in the decree and her ability tomeet her needs independently. The court looked at theduration of themarriage and the standard of living established during the marriage, adjusted down by necessity to the "living condition expectancies of respondent," i.e., her reasonablebudget. Where appellant did not testify specifically as to respondent's rehabilitative capability, the court made a realistic appraisal of respondent's ability to support herself in some reasonable approximation of the standard of living established during the marriage. This Court approved the court's conscientious effort,particularly in amarriage of long-term duration in which there is a long-term absence of the spouse from the labormarket and nopresently existing employable skill. Madson, 590 

### P.2d at 112-113. 

### As in Madson, this Court will not require respondent to sell her house and get job training. Therewas nobasis on the record for the lower court to conclude that she would be totally self-supporting at the end of "some kind of training," as proposed by appellant. The court concluded, based upon petitioner's monthly expenditures, that he has the ability to meet his needs and pay her the sum she will need. Petitioner's expenditures are not as conservative as respondent's. He has been able to

### make support and maintenance payments of $600-$700 

### per month and still support a higher standard of living for himself than respondentenjoys. Issue

### No. 2: 

### Appellant raises a 

### final issue: Did the 

### -- - -- courterroneously consider "maritalmisconduct" in apportion- 

### maintenance? There is no basis in the record, the judgment, or the findings of factand conclusionsof law for such

a contention. The court considered the living arrangements of both parties. From the record it isapparent thatMarilyn is not supporting or supported by her adult children and Linden is not supporting or supportedby his roommate. The court heard only limited testimony as to financial matters; no other questions or issues were raised anywhere on the record. We have allowed a 

### fiancee's income to he considered in determining the future financial status of a spouse and his ability to pay formaintenance. Laster, 643

### P.2d at 602. 

### We have allowed a secondwife's income to be considered as part of a husband's family's net income. In re the Marriage of Cromwell, (1979), 180 Mont. 40, 44, 588 

### P.2d 1010, 1012. 

### Here,the roommate's incomewasnoted in the findings of fact

on petitioner's share of household expenses. We can find no consideration of maritalmisconduct. We apply the following test in reviewing a lower court judgment in a dissolution: Did the District Court in the exercise of itsdiscretion actarbitrarily without employment of conscientious judgment, or exceed the bounds of reason resulting in substantial injustice? Laster, 643 

### P.2d at 601. We find the record replete with competent evidence. The court conscientiouslycoordinated the maintenance and property division.We hold that .the judge had. a reasonable basis for awarding indefinite maintenance with the limitsof remarriage or cohabitation with another mate. Respondent had made a concerted effort to adjust to a single life,but the record indicates that she will 

### have a continued limited ability to meet her reasonable needs and that petitioner can afford to paymaintenance and stillmeet his needs. Affirmed.

We concur: