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 theThirteenthJudicial District, In and 

### for the County of Yellowstone, TheHonorable RobertW. Holmstrom,Judgepresiding.

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 fordissolution of marriage in the ~hirteenth Judicial ~istrict Court in Yellowstone County. The District Court dissolved her marriage to Richard ThomasHarris,distributed themarital estate, and awarded Shirley maintenance in the amount of $800 per month. The court denied Richard smotion 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 Shirleywas permanently disabled and had no future ability to work? 2. Did the District Caurt err when it concluded that the antenuptial agreementbetween theparties 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



### anantenuptial agreement that essentially renouncedany claimseach 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, Richardmoved 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 towork. He contends that without this hearsay evidence, the record contains no credible evidence fromwhich the ~istrict Court could find that Shirley was disabled and unable to work. We cannot agree with this characterization of the record. First,theDistrictCourt 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 topicsand 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. Earlyin her direct examination,Shirley testifiedwithout objection that the Social Security Administration had determined that she was totally disabled. She also expressed her own opinion that shewas 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 trialcourt's opportunity to listento and observethewitnesses as they testifyunder oath. The standard of review for all judge-made findingsof fact iswhether they are "clearlyerroneouswwithin 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 theweight 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'clearlyerroneous. Wehold that the District Court did not err when it found that Shirleywas permanently disabled andhad no futureability towork. 11 Did the District Court err when it concluded that the antenuptial agreementbetween theparties did notpreclude 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 thepreviously acquired property of the otherin 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 tomaintenance 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 shallnot be considered either directly or indirectly in any determination of the nature and extent of her marital rights.

7. After the solemnizationof the marriagebetween the parties, property acquired by a party which is intendedby thatparty tobe separatepropertymay be put in the separate name of the acquiring party and such property shallbe the separateproperty 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 controlof the other party's separateproperty 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 dissolutionofmarriage or separationof theparties, eachpartyIs separateproperty shall be excluded fromthedetermination 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'smarital rights,andthatthiscontravenes the agreement. We disagree. The quoted language deals only with property division. It is silent on the question of maintenance. InBakerv. 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 theparties executed the antenuptial agreement the lawdid not recognize maintenance waivers. InStefonick

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 thatpart 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, theUniform Premarital AgreementAct 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 spousalmaintenance. Itseemsobvious that the agreementwas drawn having inmind 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, separatemaintenance, 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 tobeing 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 theantenuptial agreement between theparties didnot 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

everavailable to Shirley

### before the

### marriagewas $855.80, that she 

### has monthly 

### Social 

### Security income of $526.00, and that therefore the court should have awarded only $329.80 

### ($855.80minus $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 

### InreMamaageofLundvall 

### (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 shortduration of 

### thismarriage. 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 isnot 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 factorswe alluded to in Luridvall. 

### The court must a1so 

### conside:r,among other factors, Itthe financialneeds of theparty seekingmaintenance, "thestandardof 

### 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 

### (emphasisadded)

# . Based onthese 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." Wehold 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 topay $800 in

### maintenance and stillmeet his 

### ownneeds. He asserts 

### that he has annual expenses, excluding the 

### maintenance award, of $20,350.92and thathis annual income isonly $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 

### considerablygreater than $22,219.00. 

### Inhis Rule 28 

### Statement,

a financial summaryprepared 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 deductionswould distort his actual income. The District Court found that without these deductions the actual incomewhich 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. Affinned.

We concur:

Chief Justice



# &&JusticesMarch 26,1992 CERTIFICATE OFSERVICE Ihereby certifythat the followingorder was sent byUnited States mail,prepaid, to the followingnamed:

Kevin

### T.Sweeney SWEENEY &HEALOW 125015thSt.W.,Suite202 Billings,MT 59102 Linda L.Harris HARRIS LAWFIRM Main Plaza,926Main St,,Suite 15 Billings,MT 59105 ED SMITH CLERK OFTHE SUPREME COURT



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