NO. 87-476 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

IN RE THE MARRIAGE OF 

THOMAS LUISI, 

Petitioner and Appellant, 

and 

JAN J. LUISI, 

Defendant and Respondent. 

APPEAL FROM: The District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Swanberg, Koby & Swanberg; Gorham E. Swanberg, Great 

Falls, Montana 

For Respondent: 

Jardine, Stephenson, Blewett & Weaver; Joseph G. Mudd, 

Great Falls, Montana 

Submitted on Briefs: April 21, 1988 

Decided: June 9, 1988 

Filed: J U N 9 1988 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Thomas Luisi (Tom) appeals from the decree of legal 

separation ordered by the District Court of the Eighth 

Judicial District, Cascade County. We affirm. 

The issues before the Court are: 

1. Did the trial court err by excluding the remaining 

portion of Jan Luisi's inheritance from the marital estate? 

2. Did the trial court err by awarding Jan Luisi 50 

percent of the value of Tom Luisi's military pension? 

3. Did the trial court fail to accurately value and 

distribute the marital estate? 

4. Did the trial court err by awarding maintenance? 

Tom and Jan were married on July 22, 1967 in Setauket, 

New York. Shortly thereafter, Tom enlisted in the United 

States Air Force. 

Tom has remained in the Air Force throughout the course 

of the marriage and has achieved a measure of success. At 

the time of trial, he held the rank of major and earned in 

excess of $46,000 per year. Tom has also acquired two 

college degrees, including a Masters, and a pension valued at 

$460,000 while serving his country. Tom planned on retiring 

shortly after trial. 

The marriage was also blessed with three children. Two 

of the children were minors at the time of trial. The third 

was enrolled at Montana State University. Jan spent the 

majority of the twenty year marriage raising the children and 

maintaining the family home. 

Although Jan has started college classes, she will not 

receive a degree until June, 1990. In addition, her work 

experience is extremely limited. The District Court 
therefore found that Jan was marginally employable until she 

completed her education and ordered maintenance of $650 per 

month until June, 1990. The court also excluded the 

remainder of Jan's inheritance from the marital estate and 

awarded her 50 percent of Tom's pension. Of the remaining 

property, Tom was awarded $98,000 and Jan $52,091. This 

appeal followed. 

The first specification of error concerns the propriety 

of excluding the remainder of Jan's inheritance from the 

marital estate. Tom initially argues that the court's 

failure to recognize his contribution to the maintenance of 

the inheritance, and the subsequent exclusion of the 

inheritance from the marital estate, were error. He also 

finds fault with the court's alleged failure to adequately 

delineate the assets attributable to Jan's inheritance. We 

conclude both arguments are without merit. 

Generally, property acquired during the course of a 

marriage, belonging to either or both parties, however 

acquired, is deemed to be part of the marital estate. See § 

40-4-202, MCA. However, the overriding goal of Montana's 

property division statute is equity. The legislature has 

therefore provided that in the case of property acquired by 

gift, bequest, devise, or descent, the court shall, inter 

alia, consider "the extent to which [the non-acquiring 

spouse's] contributions have facilitated the maintenance of 

[the] property" so acquired. Section 40-4-202 (1) (b) . In the 

absence of a significant contribution on the part of the 

non-acquiring spouse, the court remains free to exclude such 

assets or property from the marital estate. See Marriage of 

Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101; Marriage 

of Jorgensen (1979), 180 Mont. 294, 299, 590 P.2d 606, 610. 

Although Tom testified that he contributed to the 

maintenance of Jan's inheritance, the evidence demonstrates 
the contrary. Jan received, by way of gifts and inheritance, 

approximately S214,OOO from her parents during the late 

1970's. However, a significant portion of the inheritance 

has been spent. 

As a result of Tom's failure to provide Jan with a 

household budget sufficient to adequately feed, cloth and 

shelter the family, Jan was forced to use her inheritance to 

meet usual expenses. Tom also failed to provide Jan with any 

support during the pendency of this proceeding. It is 

apparent that such conduct is not conducive to the 

maintenance of the inheritance. We therefore conclude that 

the District Court correctly excluded the remainder of Jan's 

inheritance from the marital estate. 

In the alternative, Tom argues that the court failed to 

adequately identify property subject to the inheritance 

exclusion. Specifically, that the court failed to make a 

finding of fact listing the inheritance assets. While we 

agree that a separate finding of fact specifically listing 

the property derived from Jan's inheritance is the preferred 

method of excluding property in such cases, we do not find 

the failure to make such a finding to be reversible error in 

this instance. 

Following the presentation of extensive evidence on the 

extent, value and source of property held by the parties, the 

District Court made findings delineating and distributing the 

property contained within the marital estate. The court also 

made detailed findings distributing personal property in 

conformance with a stipulation between the parties and found 

that $124,666.13 remained of Jan's inheritance. In light of 

the court's detailed findings, the assets the court deemed to 

be subject to the inheritance exclusion are clearly 

discernible. We therefore find no error. 
The second specification of error concerns the equal 

division of the present value of Tom's military pension. The 

crux of Tom's argument is that it is inequitable to exclude 

the income generating property contained within Jan's 

remaining inheritance and also award Jan a 50 percent 

interest in Tom's pension. However, it is not the function 

of this Court to conduct de novo determinations of equity. 

Absent a clear error in the findings, the award of property 

made by the District Court must be upheld. Rule 52(a), 

M.R.Civ.P.; In Re Marriage of Loegering (Mont. 1984), 689 

P.2d 260, 41 St.Rep. 1892; Grenfell v. Grenfell (1979), 182 

Mont. 229, 596 P.2d 205. 

Tom and Jan's marriage spanned 19 of the 20 years the 

military pension was accruing. During that time, Jan was 

foregoing employment, and the attendant retirement benefits, 

in order to raise the couple's children and maintain the 

family home. In addition, Jan's contribution as a homemaker 

helped Tom acquire two college degrees and a significantly 

higher earning capacity than her own. Under such 

circumstances, we do not find the equal division of Tom's 

pension to be a clear abuse of discretion. See, e.g. In Re 

Marriage of Kecskes (Mont. 1984), 683 P.2d 478, 41 St.Rep. 

1170. 

The third specification error alleges that the District 

Court improperly valued and distributed the marital estate. 

However, Tom in essence, merely attaches his proposed 

valuation on property, the majority of which the court 

determined to be subject to the inheritance exclusion, and 

argues that the court failed to adequately value and 

distribute the property. In light of our holding on the 

identification of property contained within Jan's 

inheritance, we limit our discussion to the issue of 

valuation. 
Generally, the District Court is vested with wide 

discretion in the performance of its duty to achieve an 

equitable distribution of property in dissolution 

proceedings. Contrary to Tom's position, the court is not 

bound by the opinion of a particular party or expert. 

Rather, the court remains free, in its discretion, to adopt 

any reasonable valuation of property which is supported by 

the record. See In Re Marriage of Hurly (Mont. 1986), 721 

P.2d 1279, 1285, 43 St.Rep. 1271, 1278; In Re ~arriage of 

Garst (1983), 206 Mont. 89, 669 P.2d 1063. 

Upon review of the record, we find that the valuations 

employed by the District Court are supported by substantial 

credible evidence. We therefore affirm the District Court's 

valuation and distribution of the marital estate. 

Finally, it is argued that the award of maintenance was 

reversible error. We disagree. 

Generally, the award of maintenance is not favored in 

states, such as Montana, which have adopted the Uniform 

Marriage and Divorce Act. The intent of the drafters, as 

demonstrated by the Commission Comments to 5 40-4-203, MCA, 

indicates a desire to "encourage the court to provide for the 

financial needs of the spouses by property disposition rather 

than an award of maintenance." Commission Comments, Montana 

Code Annotated Annotations, Vol. 5, pg. 126; see also In Re 

Marriage of Johnsrud (1977), 181 Mont. 544, 572 ~.2d 902. 

However, the practical reality of the myriad of diverse 

factual situations confronted by district courts often 

precludes strict adherence to the policy regarding 

maintenance while achieving the overriding goal of an 

equitable dissolution. Consequently, the court must first 

equitably distribute the marital property. Any additional 

needs of a spouse are then addressed through maintenance. 

Johnsrud, supra. 
As a condition precedent to an award of maintenance, the 

court must find that the spouse seeking maintenance "lacks 

sufficient property to provide for his reasonable needs and 

is unable to support himself through appropriate employment." 

Section 40-4-203 (I), MCA; see also In Re Marriage of Schenck 

(Mont. 1984), 692 P.2d 6, 41 St.Rep. 2137; In Re Marriage of 

Hilt (Mont. 1984), 679 P.2d 783, 41 St.Rep. 604. Although 

the District Court specifically found that Jan satisfied the 

statutory criteria, Tom argues that such findings were error. 

Specifically that Jan's inheritance provides sufficient 

income producing property and that Jan can find appropriate 

employment to meet her reasonable needs. 

We yet again note that this Court's function on appeal 

is limited to a determination of whether the findings of the 

court are clearly erroneous. In contrast, the discretion 

vested in the District Court is necessarily as broad as ours 

is limited. In Re Marriage of Tow (Mont. 1987), 748 P.2d 

440, 44 St.Rep. 2154. Given the limited duration of the 

maintenance award, we do not find the District Court clearly 

in error. 

The term "sufficient property," as used in § 40-4-203, 

MCA, has been interpreted by this Court to mean income 

producing property. See Tow, supra; Bowman v. Bowman (Mont. 

1981), 633 P.2d 1198, 38 St.Rep. 1515. In addition, "this 

Court has held that 'appropriate employment' . . . must be 

determined with relation to the standard of living achieved 

by the parties during the marriage." In Re Marriage of 

Madson (1978), 180 Mont. 220, 590 P.2d 110. Section 

40-4-203, MCA, when read in conjunction with the 

construction given it by this Court, mandates that an award 

of maintenance is appropriate when a spouse is unable achieve 

a similar standard of living after dissolution, and the other 
spouse is able to meet his or her own needs as well as pay 

maintenance. 

In the instant case, Jan testified that her necessary 

monthly living expenses amounted to $1,492. However, 

substantial credible evidence demonstrated that the assets 

awarded to Jan, including annuities held in trust for the 

couple's children and a final installment from her trust, 

would produce $761.11 per month. In addition, the District 

Court determined that Jan was only marginably employable 

until she completed her education. In light of Tom's earning 

capacity and Jan's inability to support herself, the award of 

maintenance until such time as Jan completes her college 

degree is clearly within the court's discretion. See, e.g. 

In Re Marriage of Voelkel (Mont. 1987), 734 P.2d 217, 44 

St.Rep. 538; In Re Marriage of Singer (Mont. 1986), 721 P.2d 

755, 43 St.Rep. 1242; and Bowman, supra. 

The judgment of the District Coqt is affirmed.