DA 08-0652

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 12N

IN RE THE MARRIAGE OF:

WILLIAM HAROLD THOMAS,

Petitioner and Appellee,

and

LISA MARIE THOMAS,

Respondent and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DR 07-38

Honorable Douglas G. Harkin, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Patrick G. Sandefur, Attorney at Law; Missoula, Montana

For Appellee:

Raymond P. Tipp, Torrance L. Coburn; Tipp & Buley; Missoula, Montana

Submitted on Briefs: October 21, 2009

Decided: January 26, 2010

Filed:

__________________________________________

Clerk

January 26 2010
2

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2006, the following memorandum decision shall not be

cited as precedent. It shall be filed as a public document with the Clerk of the Supreme

Court and its case title, Supreme Court cause number and disposition shall be included in

this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2 Appellant Lisa M. Thomas appeals from the Findings of Fact, Conclusions of

Law, Decree of Dissolution, and Order entered by the Fourth Judicial District Court. We

affirm.

¶3 This Court considers the following issues on appeal:

¶4 I. Did the District Court err in declining to award attorney fees and costs to Lisa

Thomas?

¶5 II. Did the District Court err in its division of marital assets?

¶6 III. Did the District Court err in declining to award maintenance to Lisa Thomas?

BACKGROUND

¶7 The parties, William H. Thomas (Bill) and Lisa M. Thomas (Lisa), were married

in Missoula County, Montana on June 16, 1994. The parties have two children, ages 14

and 11. At the time of District Court’s decision, Bill operated his own business, Bill’s

24-Hour Plumbing. At the time of their marriage, Lisa worked as a part-time waitress
3

and bartender. At the commencement of the District Court proceedings, Lisa operated a

tanning Salon that the parties opened together. They took out a second mortgage against

their home to finance the business, lease the property and purchase equipment. When the

salon began to fail, Bill took over and sold it for $75,000, a loss of $95,000 on the

original investment. Over the course of their marriage, the parties incurred substantial

personal and business debt. At the time of the appeal, Lisa was unemployed and lived

with a male companion with whom she shared accommodations and housing expenses.

¶8 Bill filed a Petition for Dissolution in January 2007. In November 2008, the

District Court issued its Findings of Fact, Conclusions of Law, Decree of Dissolution and

Order. Lisa was awarded various personal property items and a car. Bill was awarded

the marital home, his business, various personal property items and several vehicles. The

District Court assigned all debt accumulated prior to January 22, 2007, to Bill. The

District Court found that the parties accumulated marital real and personal property

during their marriage, but they lived beyond their means and incurred substantial debt.

The District Court assigned all debt from after the parties’ separation in January 2007 to

the party who incurred it and declined Lisa’s request for maintenance and attorney fees.

Lisa appeals the District Court’s division of the marital estate and its denial of

maintenance and attorney fees.

STANDARD OF REVIEW

¶9 We review a district court’s Findings of Facts to determine whether they are

clearly erroneous. In re Marriage of Cameron, 2009 MT 302, ¶ 10, 352 Mont. 375, 377,
4

217 P.3d 78, 80. Findings of Fact are clearly erroneous if they are not supported by

substantial evidence, the court misapprehends the effect of the evidence, or this Court’s

review of the record convinces it a mistake has been made. Id. If the Findings of Fact

are not clearly erroneous, we review the District Court’s final award decision for abuse of

discretion to determine whether the trial judge acted arbitrarily without employment of

conscientious judgment or has exceeded the bounds of reason resulting in substantial

injustice. Id. An award of attorney fees is reviewed for abuse of discretion. Id.

DISCUSSION

¶10 I. Did the District Court err in declining to award attorney fees and costs to Lisa

Thomas?

¶11 Our standard of review regarding payment of attorney fees is whether the District

Court abused its discretion. Id. Under § 40-4-110, MCA, a district court must consider

the financial resources of both parties before it orders a party to pay the reasonable costs

and attorney fees of another party. We have held that an award “must be based on

necessity, must be reasonable, and must be based on competent evidence.” Id. at ¶ 17.

This Court has traditionally weighed the following factors in its decision whether to

award attorney fees: the requesting party’s inability to pay his or her own attorney fees,

the other party’s ability to pay attorney fees, and the relative financial positions of the

parties. In re Marriage of Bee, 2002 MT 49, ¶ 42, 309 Mont. 34, 43-44, 43 P.3d 903,

910. The District Court considered Lisa’s employability, Bill’s shouldering of the debt,

his financial and personal responsibilities associated with raising the parties’ two
5

children, and the “difficult financial condition” of both parties. There is no indication

that the District Court, in denying Lisa’s request, abused its discretion.

¶12 Did the District Court err in its division of marital assets?

¶13 Section 40-4-202(1), MCA, requires a court to consider several situational and

financial factors in the division of marital assets, factors which Lisa claims were not

applied by the District Court. She avers that the District Court adopted Bill’s proposed

findings verbatim without applying the statutory factors to the evidence presented at trial.

She further asserts that several of the findings contain errors that influenced the District

Court’s conclusions. In response to Lisa’s allegations, Bill states that each finding was,

in fact, supported by substantial evidence and that the District Court did not wholesale

adopt his proposed findings. Bill proposed that Lisa carry part of the parties’ debt. The

District Court did not adopt that proposal.

¶14 We review a district court’s Findings of Facts to determine whether they are

clearly erroneous. In re Marriage of Cameron, ¶ 10. Findings of Fact are clearly

erroneous if they are not supported by substantial evidence, the court misapprehends the

effect of the evidence, or this Court’s review of the record convinces it a mistake has

been made. In re Marriage of Toavs, 2002 MT 230, ¶ 23, 311 Mont. 455, 461, 56 P.3d

356, 360. We find no evidence in the record suggesting that the District Court findings

challenged by Lisa were unsupported or in error. There is likewise no indication that the

court misapprehended the effect of the evidence. We further find that there was no abuse

of discretion. We affirm the District Court’s division of marital assets.
6

¶15 Did the District Court err in declining to award maintenance to Lisa Thomas?

¶16 Lisa avers that the District Court failed to consider the maintenance factors

required by § 40-4-203, MCA. Section 40-4-203(1), MCA, provides that the District

Court may grant maintenance “only if it finds that the spouse seeking maintenance:

(a) lacks sufficient property to provide for his or her reasonable needs; and (b) is unable

to support himself or herself through employment . . . .” Lisa contends that the District

Court did not consider the required statutory factors and seeks a remand for a hearing.

¶17 Absent clearly erroneous findings, we affirm a district court’s award of

maintenance unless we identify an abuse of discretion. In re Marriage of Payer, 2005

MT 89, ¶ 9, 326 Mont. 459, 462, 110 P.3d 460, 462. Here, the maintenance statute not

only requires the above-stated § 40-4-203(1), MCA, findings, but also articulates factors

the District Court must consider in its decision whether to award maintenance. The

statutory factors include: the financial resources of the party seeking maintenance, the

time necessary to acquire sufficient education or training for the maintenance-requesting

spouse to find appropriate employment, the standard of living and duration of the

marriage, the condition of the maintenance-seeking spouse, and the ability of the spouse

from whom maintenance is sought to meet the spouse’s own needs while meeting those

of the spouse seeking maintenance. Section 40-4-203(2), MCA.

¶18 There is no indication that the District Court failed to weigh these factors prior to

its maintenance decision. The Findings of Fact paint a portrait of years of overspending,

severe debt and multiple mortgages. The District Court also highlighted the impact of the
7

declining economy on Bill’s business, and the fact that he now carries full parenting

responsibility and the parties’ debt. There is no evidence that Bill would be able to

simultaneously pay off the debts, raise and support the parties’ two children, provide for

himself, and pay maintenance to Lisa.

¶19 While the District Court directly addresses the maintenance award in only one

finding, it did so in the context of several pages of findings regarding the parties’ dire

financial situation, each party’s employment situation, and Bill’s substantial debt and

responsibilities. There is no evidence in the record indicating that the District Court’s

findings were clearly erroneous.

¶20 We have determined to decide this case pursuant to Section I, Paragraph 3(d)(v) of

our 1996 Internal Operating Rules, as amended in 2006, which provides for

memorandum opinions.

¶21 For the reasons above, we affirm the District Court’s decision.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH

/S/ JIM RICE

/S/ PATRICIA O. COTTER

/S/ BRIAN MORRIS