NO. 93-561 IN THE SUPREME COURT OF THE STATE OF MONTANA 1994

IN RE THE MARRIAGE OF ROBERT DOWD DOOLITTLE,

and PRISCILLA Petitioner and Appellant,

E

## . DOOLITTLE

### , Respondent and Respondent. 

### MAY 

### 17'

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The Honorable Ted 0. Lympus, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Gary A. Crowe,Attorney at Law, Kalispell,Montana For Respondent: Randy K. Schwickert, Attorney at Law, Whitefish, Montana

Filed: Submitted on Briefs: April 7, 1994 Decided: May 17, 1994Justice Karla M. Gray delivered the Opinion of the Court.

Robert Dowd Doolittle appeals from those portions of the Findings of Fact, Conclusions of Law,and Decree of Dissolution of theEleventhJudicialDistrictCourt,Flathead County,which relate to the award of maintenance to Priscilla E. Doolittle. We affirm. Robert Dowd Doolittle (Robert) filed a petition for dissolution of his twenty-five year marriage to Priscilla E. Doolittle (Priscilla). The District Court appointed a Special Master pursuant to Rule 53, M.R.Civ.P. Robert and Priscilla subsequently entered into a written property settlement agreement which resolved most of their differences. At the time of the hearing before the Special Master, the parties resolved an additional issue. The sole issue remaining for determination by the Special Master was whether Priscilla was entitled to maintenance and, if so, the duration and amount of that maintenance. The Special Master determined that Priscilla lacked sufficient property to provide for her reasonable needs and, without retraining, was unable to supportherself through employment. The Special Master recommendedthat the District Court award Priscilla maintenance in the amount of $250 per month for three years or until, with due diligence, she completed the necessary education for a degree in certified public accounting. The SpecialMaster's Report was filed and Priscillamoved the District Court to adopt it. Robert filed an objection to the Special Master's findings relating to Priscilla's inability to 2

### support herself due topoor health, on the basis that the findings relied solely on hearsay testimony 

### admitted over objection. His 

### supportingbrief expanded thebases ofhis objection somewhat. The District Court determined that Robert failed to establish that the Special Master's findings were clearly erroneous and adopted the Special Master's findings and conclusions. With regard to the maintenance issue, the court found that Priscilla met the prerequisites of 6 

### 40-4-203(1), MCA, and, 

### therefore, concluded that she was entitled to maintenance. The substance of 

### the maintenance provision states as follows: 8. 

### [Robert] is required to provide spousal maintenance to [~riscilla] in the amount of $250.00 per 

### month for a period of three (3) 

### years or until

[Priscilla] completes with due diligence the necessary education for 

### a degree in certified Public Accounting. said 

### sum shall be payable beginning with 

### the month of 

### September, 1993, 

### and payable on the 10th day of each month thereafter. Robert appeals. Robert asserts numerous errors in the Special Master's findings, as adopted by the District Court. Priscilla responds that he 

### raised only one objection to those findings when the Special Master's report was filed and, therefore, that only one issue is properly before us. Rule 53(e)(2), M.R.Civ.P., 

### is clear that, in nonjury actions such as this, '!the [trial]court shall accept themaster's findings of fact unless clearly erroneous." The 

### burden of challenging the master's findings is on the party objecting; the related burden of establishing that a finding is clearly erroneous also is on the party objecting

# . The 

### intent--implicit, but clear--of Rule53(e)(2), M.R.Civ.P., is that all objections to a master's report must be timely made in a party's written objections. In the future,objections not made to the district court at that juncture will not be entertained by this Court on appeal. Due to the absence of earlier interpretations of Rule 53(e)(2)

## , M.R.Civ.P., however,wewill address all of the issues Robert raises onappeal. Did the District Court err in determining that Priscilla met the threshold requirements of 5 40-4-203(1), MCA? This Court will not reverse a district court's award of maintenance unless the court's findings of fact are clearly

erroneous. In 

### re Marriage of Zander (Mont. 1993), 864 P.2d 1225, 1231, 50 St.Rep. 1522, 1525. As a threshold matter, Priscilla is entitled to maintenance only if the District Court properly found that she lacks sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment. See 5 40-4-203(1),MCA. Robert assetserror regarding both of these threshold requirements. Robert contends that, in determining Priscilla's lack of sufficient property to provide for her reasonable needs, the District Court erred in not making a finding of fact of the value of Priscilla'sone-half shareof his retirement benefit accumulated during the marriage. The parties had stipulated to this division of Robert's employer-sponsored retirementbenefits. Robert argues that the amount of Priscilla's retirement sharemust be considered by the court in determining whether Priscilla has sufficient property to provide for her reasonable needs. Under the circumstances before us, Robert's argumentborders 4on the frivolous. The retirement benefit to be received by Priscilla in the future is totally irrelevant to her present ability toprovide for her reasonableneeds. It is "propertytt she does not currently have and, therefore, cannot contribute toward her living expenses. We conclude that the District Court did not

err in failing to consider Priscilla's future share of Robert's retirement benefit in determining whether she has sufficient property to provide for her reasonable needs. With regard to the court's findings relating to Priscilla's inabilityto support herself through appropriateemployment,Robert argues generally that there is no admissible evidence of record to support the findings, because the only evidence submitted by Priscillawasher own testimony. Thisargument also borders on the frivolous. A party's testimony as to work experiences, living expenses,health history and physical abilities,based as it is on personal knowledge, is relevant and admissible. Rules 401 and 402,M.R.Evid. Robert's first specific argument in this regard is that the Special Master's findings that Priscilla's poor health precluded her from securing employment are based on inadmissible hearsay medical evidence to which he objected. We observe at the outset that Robert's reading of the Special Master's findings is overly broad; the only former employment of Priscilla's which the master found precluded by her poor health and related limitations is waitressing. The record reflects two objections at the beginning of

### Priscilla's testimony on direct examination about her health and medical history:

Q: Could you describe to the court what your current health is as well as a brief history of your health? A: 

### Last year I was diagnosed with breast cancer.

[ByRobert's counsel]: Objection, Your Honor. She can testify as to her personal knowledge with respect to her health. If she's going to testify as towhat aphysician or doctor has told her regarding her health, we would like to have the physician or doctor present for crossexamination.

Q: Describe your health history to the Court. A: Okay. Last year Iwas diagnosed

# --

[ByRobert's counsel]: Objection,Your Honor. When she refers to "Diagnosis," she's referring to a doctor's statement regardingher health. I

### want her testimony to be limited to what she personally knows regarding her health, not what a physician has told her, a physician who is not in this court and not available for crossexamination. The Special Master overruled both of the objections,but suggested that Priscilla rephrase her statements in testifying about her health. Priscilla's testimony about her health and medical history continued thereafter without further reference to any "diagnosisw

or statements made to her by physicians, and without objection. The testimony was limited to her personal knowledge. She recounted that she had developed breast cancer in 1992, and had undergone surgery and chemotherapy. She also testified that shehad had breast cancer, surgery and chemotherapy tenyears earlier and that the lymph nodes underneath both of her arms hadbeen removed. She testified that,as a result, she isunable to do heavy lifting and must avoid burns and extensive scratches. This relevant and uncontroverted testimony, to which no objection was made and no cross-examination was directed,provided a sufficient basis for the finding that Priscilla's health-related limitations precluded her from engaging in her former occupation of waitressing. Robert's second specific argument relating to the findingsof Priscilla's inabilityto support herself is thatthe SpecialMaster erred in giving the testimony of his vocational rehabilitation expert, Charles Schloss, little weight. In opposition to Priscilla's testimony that shewould be unable to support herself through her former occupations of bookkeeper, legal secretary, assistant restaurant manager and real estate agent, Schloss testified that Priscilla needed no further training to be employable. Robert apparently contends that Schloss' testimony mandated a finding that Priscillawas able to supportherself and, therefore, the findingsto the contrary were clearly erroneous. We disagree. Schloss' testimony was accorded little weight because of its reliance on Montana Department of Labor information obtained prior toNovember 1991 regarding wage ranges and availability of jobs; in other words, the information was more than one and one-half years out of date at the time of the hearing in this case. Further, the Special Master found that Schloss reached his conclusions about Priscilla's skills and employability without interviewing her orconsidering her physical limitations, relative inexperience and history of unemployment in recent years. Here, therecord contains conflicting testimony fromPriscilla and Schlosson the issue of Priscilla's ability to supportherself. The Special Master, having heard and evaluated the testimony and observed the witnesses' demeanor, accorded Schloss* testimony littleweight. We will not substitute our judgment for that of the trier of fact regarding the credibility of witnesses or theweight to be given to their testimony. Matter of B.T.B. (1992)

### , 254Mont. 449, 454, 840 P.2d 558, 560-61. We conclude that the record contains substantial credibleand admissible evidence to support the findings that Priscilla lacked sufficient property to provide for her reasonable needs and is unable to support herself through appropriate employment; nor are those findings otherwise clearly erroneous. We hold, therefore, that the District Court did not err in determining that Priscilla met the threshold requirements of 

### 5 40-4-203(l), MCA, and was entitled to maintenance.

Did the District Court err in determining the amount and duration of maintenance? As set forthabove,the courtawarded Priscilla maintenance of $250 per month for three years or until, with due diligence, she completes the necessary education for a degree in certified public accounting. Robert argues that the District Court improperly applied both the "standard of living" factor in 5 40-4-203(2)(c)

## , MCA, and the "timenecessary to acquire sufficient education

# . . .

### to find appropriate employment" factor in 5 

### 40-4-203(2)(b), MCA. Robert's argumentregardingthe "standardof living" factor is that the amount of maintenance awarded was based on Priscilla's testimony that shedesired 

### a degree in certified public accounting in order to achieve a standard of living higher than she enjoyed during themarriage. According to Robert, awarding maintenance on this basis is error because In re Marriage of Madson (1978), 180 Mont. 220, 590 P.2d 110,and In re Marriage of Skinner (1989),240 Mont. 299, 783 P.2d 1350, define "appropriate employmentu under 5 

### 40-4-203(2), MCA, in relationto the standard of living achieved by the parties during marriage. The cases cited by Robert have no application here because Robert mischaracterizes Priscilla's testimony about the parties' standard of living and her purpose in desiring the accounting degree. Priscilla's testimony that she "wanted a better standard of livingtr related to her desire to obtain additional education durinq the marriage and Robert's discouragement of those desires. That testimonyhad no bearing on Priscilla'sneed, as foundby the court, to obtain additional education in order to supportherself after dissolution of the marriage. We conclude that the District Court did not err in applying the "standard of living" factor in 5 

### 40-4-203(2)(c) 

## , MCA. Robert's final argument is that the District Court erred in awarding maintenance foran indefinite period of time. It is clear from the decree that the court intended to provide support for Priscilla during the time necessary to complete an accountingdegree. Priscilla testified that 

### itwould take her three years to obtain the degree, The court awarded maintenance for three years


### oruntil,withdue diligence,

### shecompletedtheeducationnecessary for the accounting degree. It is the latter portion of the award with which Robert takes issue. A similar argument was made and accepted by this Court in Marriase 

### of Zander. That case isdistinguishable, however. There, the spouse testified that shewould need two to five years to get thedegree;thedistrict court awardedmaintenance until the spouse "completes her RN degree and obtains full time employment.'' Marriaqe of Zander, 864 P.2d at 1231. We expressed our concern that the decree contained no time limit whatsoever on the maintenance award and, because there was evidence regarding the length of time needed to complete the degree, concluded that the district court erred by not putting a time limitation on the maintenance award. Marriaqe of Zander, 864 P.2d at 1232. Here, Priscilla testified that 

### it would take her three

### years to obtainthe accountingdegree. The courtawardedmaintenance for that period or until, with due diligence, Priscilla completed the necessary education. This does not represent the same totally open-ended maintenance of which we disapproved in ~arriaseof Zander. Rather, it represents the practical, common sense understanding by the District Court that even with diligence on Priscilla'spart, 

### itmight not be possible for her to complete the degree within 

### three years. It is appropriate 

### and, indeed,preferable in 

### most cases 

### for

### courts to specify a time certain at which maintenance will terminate. We cannot say, however, that the duration of the 

### maintenance award here constituted an abuse of discretion by the District Court under these circumstances. In the event ~riscilla completes her degree 

### work within the 

### three years, Robert's maintenance obligation will cease at that time. If she 

### does not complete the degreewithin a

### period of time thereafterwhich would comport with a 

### reasonableperson's definition of "due diligence,I1 Robert's remedy will be tomove the court tomodify themaintenance award on that basis. Given the imbalance between the parties1 respective personal resources now and 

### for the foreseeable future, it is not inequitable to place this contingent burden on Robert. Robert's final argument is that the District Court abused its discretion by 

### awarding maintenance while Priscilla completes her education for an accounting degree because no evidence supported the underlying assumptions that she 

### is capable of 

### completing the education or that the education will render Priscilla able to support herself through Ifappropriate employment. In this regard,

we need observe only 

### thatneither statute

### nor case law

### require such guaranteed outcomes as Robert apparentlybelieves are necessary to support an award of maintenance during a 

### reasonable period of 

### additional education

### or training. The

### District Courtdid

### not abuse its discretion. Final observations are appropriate here with regard to the required contents of an appellant's brief and the partiesv respective burdens on appeal. We note that Robert failed to

### present any legal authority whatsoever in support of two of his "issues." In response to Priscilla's statements in this 

### regard, Robert asserts that he need not provide authority because it is respondent's duty to do so. Robert is in error. Appellants are charged with the burden of establishing the

errors they contend occurred in district court proceedings. Appellants must raise legal issues and support them with legal authorities. The requirement of Rule 23

### (a)(4)

## , M.R.App. 

### P., is clear that arguments must contain the appellant's contentions and "the reasons therefor, with citations to the authorities 

# . . . relied on." Counsel are cautioned that compliance with the Montana Rules of Appellate Procedure is required and that this Court remains free to refuse to address issues not properly supported with legal authority. We conclude that the findings challenged by Robert are not clearly erroneous. We further conclude that the court did not abuse its discretion. ,- AFFIRMED.



### JusticesMay 17, 1994 CERTIFICATEOFSERVICE Iherebycertifythatthefollowingcertifiedorderwassent by United Statesmail,prepaid,tothe followingnamed: GaryA.Crowe,Esq. AttorneyatLaw P.0.Box924 Kalispell,MT59903-0924 RandyK. Schwickert, Esq. AnorneyatLaw 6336Hwy.93So. Whitefish,MT59937 EDSMITH CLERKOFTHE SUPREMECOURT STATEOFMONTANA