No. 91-454 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

SHIRLEY ANN HARRIS, 

Petitioner and Respondent, 

and 

RICHARD THOMAS HARRIS, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kevin T. Sweeney, Sweeney & Healow, 

Billings, Montana. 

For Respondent: 

Linda L. Harris, Harris Law Firm, 

Billings, Montana. 

Filed: 

Submitted on Briefs: January 16, 1992 

Decided: March 26, 1992 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the court. 

On May 16, 1990, Shirley Ann Harris petitioned for dissolution 

of marriage in the ~hirteenth Judicial ~istrict Court in 

Yellowstone County. The District Court dissolved her marriage to 

Richard Thomas Harris, distributed the marital estate, and awarded 

Shirley maintenance in the amount of $800 per month. The court 

denied Richard s motion for a new trial or amendment of the court ' s 

findings and judgment, ~ichard appeals. We affirm. 

The issues are: 

1. Did the District Court err when it found that Shirley was 

permanently disabled and had no future ability to work? 

2. Did the District Caurt err when it concluded that the 

antenuptial agreement between the parties did not preclude an award 

of maintenance? 

3. Did the District Court err when it found that Shirley's 

needs justified $800 per month in maintenance? 

4. Did the District Court err when it found that Richard 

could afford to pay $800 per month in maintenance? 

Richard and Shirley were married on November 23, 1984. Both 

had been married previously. On that same day, they had executed 

an antenuptial agreement that essentially renounced any claims each 

party might have against the previously acquired property of the 

other in the event of a dissolution of their marriage. The 

marriage produced no children. 
Early in the marriage Shirley developed bladder cancer. She 

underwent urostomy surgery, a procedure that involves removal of 

the cancerous bladder and construction of a replacement bladder 

from the patient's own tissue. The new bladder does not perform as 

well as the old one, and consequently she must urinate frequently 

and is susceptible to bladder infections. The Social Security 

Administration has determined that she is permanently and totally 

disabled. At the time of trial she was 54 years old. 

Richard is a semiretired real estate broker. He had 

accumulated substantial assets prior to the marriage. At the time 

of trial he was 63. 

On June 7, 1991, the District Court issued its findings of 

fact and conclusions of law. The court dissolved the marriage, 

distributed the property of the parties according to the 

antenuptial agreement, and awarded Shirley $800 per month as 

maintenance. The court also awarded Shirley reasonable attorney 

fees . 

After the District Court issued a final decree of dissolution 

on June 27, 1991, Richard moved for a new trial or amendment of the 

findings and judgment. Richard argued that the court had erred in 

(1) calculating his income and expenses; and (2) awarding 

maintenance in contravention of the antenuptial agreement. The 

court denied Richard's motion on July 30, 1991. Richard appeals. 
Did the District Court err when it found that Shirley was 

permanently disabled and had no future ability to work? 

Richard argues that the court erroneously admitted hearsay 

evidence by allowing Shirley to testify that her doctor had told 

her she was totally disabled and unable to work. He contends that 

without this hearsay evidence, the record contains no credible 

evidence from which the ~istrict Court could find that Shirley was 

disabled and unable to work. We cannot agree with this 

characterization of the record. 

First, the District Court did not admit hearsay evidence. The 

key portion of the transcript reads as follows: 

Q. Do you anticipate you will ever be able to work? 

A. [By Shirley] No. 

Q. Have you been so advised by your physician? 

MR. SWEENEY: Objection, Your Honor. Hearsay. 

THE COURT: Overruled. 

Q. Are you wresentlv livinq in Columbia. Missouri? 

[Emphasis added.] 

After the court overruled Richard's objection, Shirley's attorney 

switched topics and never returned to the subject of what Shirley's 

doctor told her about whether she could work. Thus, Richard's 

hearsay argument lacks merit. 

Second, the record contains other evidence from which the 

District Court could find that Shirley was unable to work. Early 
in her direct examination, Shirley testified without objection that 

the Social Security Administration had determined that she was 

totally disabled. She also expressed her own opinion that she was 

unemployable. There was no objection to that opinion, and no 

qualified opinion to the contrary. 

In appeals from judge-made findings of fact, we defer to the 

trial court's opportunity to listen to and observe the witnesses as 

they testify under oath. The standard of review for all judge-made 

findings of fact is whether they are "clearly erroneousw within the 

meaning of Rule 52, M.R.Civ.P. Waldenv.State (Mont. 1991), 818 P.2d 

1190, 48 St.Rep. 893. Based on its assessment of the weight of the 

evidence, the court found that this 54-year-old woman with an 

artificial bladder who was classified as totally disabled by the 

Social Security Administration could not work, This was not 

l'clearly erroneous. 

We hold that the District Court did not err when it found that 

Shirley was permanently disabled and had no future ability to work. 

11 

Did the District Court err when it concluded that the 

antenuptial agreement between the parties did not preclude an award 

of maintenance? 

Richard argues that the court's maintenance award was 

erroneous in light of the 1984 antenuptial agreement between the 

parties. Generally, this agreement indicates a waiver by each 

party of any claim to the previously acquired property of the other 
in the event of a dissolution of their marriage. The District 

Court actually followed this scheme in its distribution of the 

marital estate. 

Richard, however, contends that the court did not go far 

enough and that the agreement also prohibited any future award of 

maintenance if the payment came from income derived from that 

property. He asserts that Shirley waived her right to maintenance 

in this agreement and that the District Court was bound by its 

terms. We reject both parts of this argument. 

The relevant portions of the agreement provide as follows: 

3. [Shirley] further agrees that in the event of 

the dissolution of marriage or separation of parties or 

the death of [Richard], the aforementioned property, or 

the proceeds therefrom, shall be excluded from the 

determination of the amount of specific property 

[Shirley] shall be entitled to receive by reason of her 

marriage to [Richard]. [Richard's] property shall not be 

considered either directly or indirectly in any 

determination of the nature and extent of her marital 

rights. 

7. After the solemnization of the marriage between 

the parties, property acquired by a party which is 

intended by that party to be separate property may be put 

in the separate name of the acquiring party and such 

property shall be the separate property of the acquiring 

party. Each party agrees in consideration of said 

contemplated marriage that each waives, releases and 

relinquishes to the other party all right to the use and 

control of the other party's separate property and estate 

and income therefrom. . . . Each party relinquishes or 

agrees to relinquish any and all claims to or for the 

separate property of the other party in the event of a 

dissolution of marriage or separation of the parties. 

Each party also specifically agrees that in the event of 

the dissolution of marriage or separation of the parties, 

each party Is separate property shall be excluded from the 
determination of the amount of specific property each 

would be entitled to receive from the other by reason of 

his or her marriage to the other. 

Richard suggests that by considering his net worth in awarding 

maintenance, the court "indire~tly'~ considered his property in 

determining Shirley's marital rights, and that this contravenes the 

agreement. 

We disagree. The quoted language deals only with property 

division. It is silent on the question of maintenance. In Bakerv. 

Bailey (1989), 240 Mont. 139, 143-44, 782 P.2d 1286, 1288, we said 

"[wlhere the language of a written contract is clear and 

unambiguous, there is nothing for the court to construe." Because 

this contract is clear and unambiguous, we decline Richard's 

invitation to construe the word "indirectly" as synonymous with 

"maintenance." The agreement by its terms does not expressly 

prohibit a maintenance award. 

Additionally, at the time the parties executed the antenuptial 

agreement the law did not recognize maintenance waivers. In Stefonick 

v. Stefonick (1946) , 118 Mont. 486, 167 P. 2d 848, we considered an 

antenuptial agreement that purported to waive the wife's right to 

maintenance in the event of divorce. We held that that part of the 

agreement was void for being contrary to public policy. Stefonick, 

167 P. 2d at 854. 

We recognize that the Uniform Premarital Agreement Act 

modified our holding in Stefonick, and that parties may now contract 
Ear the llmodification or elimination of spousal support." Section 

40-2-605 (1) (d) , MCA. However, the Uniform Premarital Agreement Act 

is a product of the 1987 legislature, see ch. 189, 1987 Mont. Laws 

316, and was not the law in 1984 when the parties executed the 

antenuptial agreement at issue in this case. 

As the District Court pointed out: 

A careful review of the Ante-Nuptial Agreement discloses 

that it was not [intended] nor does it by implication, 

purport to be a waiver or release of any claim either 

party may have for spousal maintenance. It seems obvious 

that the agreement was drawn having in mind the decision 

of the Montana Supreme court in Stefonick v. Stefonick, 118 

Mont. 486, 500, 167 P. 2d 848, wherein the Court held that 

a provision in an Ante-Nuptial Agreement providing that 

'!The other party shall never be called upon to pay 

alimony, separate maintenance, cost of suit or any other 

expense incurred by the party bringing the actiontt was 

void as against public policy. It is clear that the 

drafter of the document was well aware of the S~efonick 

decision and purposely did not include in the agreement 

a provision which would be subject to being held as void 

in violation of public policy. 

We agree with the District Court. Richard cannot argue now that 

the agreement contains by implication a provision that would have 

been void as contrary to public policy at the time the parties 

executed it. 

We hold that the ~istrict Court did not err when it concluded 

that the antenuptial agreement between the parties did not preclude 

an award of maintenance. 

Did the District Court err when it found that Shirley's needs 

justified $800 per month in maintenance? 
In addition to arguing that the court had no authority to 

award any maintenance at all, Richard also argues that the court 

awarded too much maintenance in light of the Ilsh~rt~~ six-year 

marriage of the parties. He asserts that the highest net income 

ever available to Shirley before the marriage was $855.80, that she 

has monthly Social Security income of $526.00, and that therefore 

the court should have awarded only $329.80 ($855.80 minus $526.00) 

in order to duplicate her premarital standard of living. The flaw 

in this contention is that it considers only the duration of the 

marriage. 

Richard cites In re Mamaage of Lundvall (1990), 241 Mont. 172, 786 

P.2d 10, in support of his argument that the court's maintenance 

award was too high in light of the short duration of this marriage. 

In that case we said: 

While the duration of a marriage is a factor to be 

considered in connection with the award of maintenance, 

3 40-4-203, MCA, it is not an overriding factor so as to 

preclude consideration by the District Court of other 

equitable reasons set forth in the statute for the award 

of maintenance. 

Lundvall, 786 P.2d at 12-13. 

~uration is only one of the statutory factors we alluded to in 

Luridvall. The court must a1 so conside:r, among other factors, Itthe 

financial needs of the party seeking maintenance, "the standard of 

living established durins the marriage," and "the age and the 

physical and emotional condition of the spouse seeking 

maintenance. It Section 40-4-203 (2) , MC.A (emphasis added) . Based on 
these factors, the court found that Shirley's reasonable needs 

amounted to $1450. After reviewing the record we conclude that 

this finding was not "clearly erroneous." 

We hold that the District Court did not err when it Eound that 

Shirley's needs justified $800 per month in maintenance. 

IV 

Did the District Court err when it found that Richard could 

afford to pay $800 per month in maintenance? 

Richard's final argument is that he no longer has sufficient 

wealth to pay $800 in maintenance and still meet his own needs. He 

asserts that he has annual expenses, excluding the maintenance 

award, of $20,350.92 and that his annual income is only $22,219.00. 

Under the court s maintenance award, his annual expenses will be 

$29,950.92. He cites 9 40-4-203 (2) (f) , MCA, for the proposition 

that the court had to consider his ability to pay maintenance, and 

contends that he cannot pay annual expenses of $29,950.92 on an 

annual income of $22,219.00. 

The District Court, however, found Richard's annual income to 

be considerably greater than $22,219.00. In his Rule 28 Statement, 

a financial summary prepared and submitted according to local court 

rules in dissolution cases in the Thirteenth Judicial District, 

Richard adjusted his gross annual income downward to reflect 

depreciation and payments on certain non-income producing 

properties. The court's memorandum accompanying its denial of 

Richard's motion for a new trial clearly indicates the court found 
that allowing Richard to claim these deductions would distort his 

actual income. The District Court found that without these 

deductions the actual income which Richard had at his disposal was 

closer to $30,000 per year. There was substantial evidence to 

support that finding. We conclude that it was not clearly 

erroneous. 

We hold that the District Court did not err when it found that 

Richard could afford to pay $800 per month in maintenance. 

Af f inned. 

We concur: 

Chief Justice 

&& Justices 
March 26,1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Kevin T. Sweeney 

SWEENEY & HEALOW 

1250 15th St. W., Suite 202 

Billings, MT 59102 

Linda L. Harris 

HARRIS LAW FIRM 

Main Plaza, 926 Main St,, Suite 15 

Billings, MT 59105 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: