NO. 90-030 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

IN RE THE MARRIAGE OF LINDA L. COOPER, Petitioner and Respondent, and ROBERT T. COOPER, Respondent and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD: For Appellant:

3_

7 Brett C. Asselstine, Great Falls,Montana >'ForRespondent: Kenneth R. Olson, Great Falls,Montana

SubmittedonBriefs: April 26, 1990

i-.'-! .. . ,-.

> -. Decided: May 25, 1990 Fil$d: .-,L 0 *P"". 3 

## 4 Q

,, 5, ,f+? 

## ,&, ,:,.g fd;.'P .& #',qd

\ .. 

### $;t&$2$tb: *f :*.,;.?;:, ,$(

.X$,Lj .? ~: <,, $,$ U

%. * RlerkJustice Diane G. Barz delivered the Opinion of the Court. Robert Cooper appeals from the decree of the District Court of the Eighth Judicial District, Cascade County, dissolving his marriage to Linda Cooper and distributing marital assets. We affirm. When theparties met in 1979,Robertwas aMaster Sergeant in the united States Army with a wife and three children living in Georgia. Roberthad been in the serviceforapproximately eighteen years at that time. Linda had two sons from a previous marriage. Robert and Linda residedtogethersporadically beginning in October of 1979. Upon his retirement from themilitary in November 1981, Robert returned to Georgia to attempt a reconciliation with his wife. This effort failed and Robert was divorced in June, 1983. Robert was ordered to pay his ex-wife child support of $200 per month per child until his oldest child attained majority and $200 per month alimony thereafter until her death or remarriage. Robert's ex-wife relinquished all claims to his military pension andVeteransAdministration disability benefits inexchange forthe balance of themarital assets. The District Court found that: [b]etween October of 1979 until 

# . . . [Robert] retired in November of 1981 the parties lived together in 

# . . . [Linda's] residence. She was the homemaker and her income provided the husband with many of his necessities, including a down payment to purchase a car, house payments to [Robert's] first wife in Georgia, direct payments of cash to him, carpayments and payments on his VISA credit Card Account 

# . . . During this time 

# .

# . . [Robert] was completing his last two years for his eligibility for his military retirement pension. During this period 

# . 

# . . [Linda] made all the lease payments on the residence and paid all of the household expenses.

[Robert's] contribution consisted of the purchase of some groceries. The parties were married on December 30, 1983. No children

were born of the marriage. The District Court determined the marital estateconsisted of real andpersonal propertywith a value of $102,825.49. The District Court found Robert had dissipated a significantportion of themarital estatethroughgambling. At the time of trial,Linda'smonthly net take-homepay was approximately $1,232.72 and she received $300per month child support. Linda's monthly expenses were $1,519.44. Robert received his military pension of $800permonth and disability benefits of $133permonth in addition to his salary from K-Mart averaging approximately $20,000 per year. While the District Court made no specific findingregarding Robert's monthly income, it appears tohave been roughly $1,900 per month. Robert's monthly expenses were $1,616.83. Robert will be entitled to pension benefits from KMart should he retire from his employment there. TheDistrict CourtawardedLinda assets withavalue totalling $44,321.49 and debt totalling $42,002 for a net distribution of $2,319.49. Robert received assets with a value of $68,504 and indebtednessof $31,584 for a net distribution of $36,920. Linda received the family home and liability for the accompanyingmortgage while Robert was required to retire the home improvement loan. Robertwas also required topay Linda $10,000 aspart of the marital estate in lieu of maintenance or alimony. The value of Robert's military pension and disability benefitswere included as marital assets although neither was distributed to Linda. Robert raises the following issues on appeal: 1. Was the District Court's requirement that Robert pay the home improvement loan because he dissipated a portion of the marital estate an abuse of discretion? 2. Did the District Court err by failing to add Robert's payment of the home improvement loan to Linda's share of the marital assets? 3. Did the District Courtproperly include Robert's military pension and disability benefits as assets of themarital estate? 4. Did the District Court abuse its discretion in ordering Robert to pay Linda $10,000 as part of themarital estate in lieu of maintenance or alimony? Wehave reiteratedthe standard of review indissolutioncases many times: Thedistrict courthas great latitude in distributing marital property and findings of fact and conclusions of law supported by substantial credible evidence will not be overturned

on appeal unless they constitute an abuse of discretion. In re Marriage of Cannon (Mont. 1990)

### , P.2d

## -, I 47St.Rep. 752, 755. Section 40-4-202(1), MCA, provides: 4Ina proceeding fordissolution of a marriage, legal separation, or division of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdictiontodivide theproperty, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between theparties theproperty and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit. In dividing property acquired prior to the marriage; property acquiredby gift,bequest,devise,ordescent; the increasedvalue ofproperty acquiredprior tomarriage; and property acquiredby a spouse after a decree of legal separation,the court shall consider those contributions of the other spouse to themarriage, 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. Following our review of the record we conclude the DistrictCourt had substantial credible evidence upon which to base its findings of fact. The first two issues concern the District Court's distribution of the home improvement loan. While we find the District Court did not erroneously conclude Robert dissipated

a portion of the marital estate, that finding was not crucial in justifying the court's allocation of the home improvement debt to Robert. Linda's net distributionwas little over $2,000,Robert's

was in excess of $36,000. The District Court properly ordered Robert to assume this debt. Even if Robert's assumption of this debt were included in Linda's assets, her net distribution would still be far less than Robert's. The District Court did not err in failing to add this assumption of debt into Linda's net distribution. Robert's third citation of error concerns the inclusion of his military pension anddisabilitybenefits inthemarital estate. It is well settled thatmilitary retirement benefits are amarital asset. In re the Marriage of Luisi (1988),232Mont. 243, 246, 756 P.2d 456, 458-59. As concerns the disability benefits, the District Court may properly include in the marital estate any property I1howeverand whenever acquired." Section 40-4-202(1), MCA. The District Court awarded no portion of either asset to Linda. Both the military pension and disability benefits were properly included in themarital estate. Finally, Robert asserts the lower court erred in requiring that he pay Linda $10,000as part of themarital estate in lieu of 6maintenance or alimony. Section 40-4-202(1), MCA, clearly anticipates an award of property in lieu of maintenance. We note once again the disparity between the parties' respective net distributions. The District Court properly ordered the $10,000 payment. Affirmed.

Justice 

### 2'7 We concur: