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, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, 1994 
Justice 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 

the Eleventh Judicial District Court, 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 support herself through employment. The Special Master 

recommended that 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 Special Master's Report was filed and Priscilla moved 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 to poor health, on the basis that the findings 

relied solely on hearsay testimony admitted over objection. His 

supporting brief expanded the bases of his 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 the master'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 Rule 
53(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, we will address all of the issues Robert raises on appeal. 

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 assets error 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's one-half share of his retirement benefit accumulated 

during the marriage. The parties had stipulated to this division 

of Robert's employer-sponsored retirement benefits. Robert argues 

that the amount of Priscilla's retirement share must 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 argument borders 

4 
on the frivolous. The retirement benefit to be received by 

Priscilla in the future is totally irrelevant to her present 

ability to provide for her reasonable needs. 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 

inability to support herself through appropriate employment, Robert 

argues generally that there is no admissible evidence of record to 

support the findings, because the only evidence submitted by 

Priscilla was her own testimony. This argument 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. 

[By Robert'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 to what a physician 

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 I was diagnosed -- 

[By Robert's counsel]: Objection, Your Honor. When she 

refers to "Diagnosis," she's referring to a doctor's 

statement regarding her 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 she had had breast cancer, surgery and chemotherapy ten years 

earlier and that the lymph nodes underneath both of her arms had 
been removed. She testified that, as a result, she is unable 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 findings of 

Priscilla's inability to support herself is that the Special Master 

erred in giving the testimony of his vocational rehabilitation 

expert, Charles Schloss, little weight. In opposition to 

Priscilla's testimony that she would 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 Priscilla was able to support herself and, 

therefore, the findings to 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 

to November 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 or 
considering her physical limitations, relative inexperience and 

history of unemployment in recent years. 

Here, the record contains conflicting testimony from Priscilla 

and Schloss on the issue of Priscilla's ability to support herself. 

The Special Master, having heard and evaluated the testimony and 

observed the witnesses' demeanor, accorded Schloss* testimony 

little weight. We will not substitute our judgment for that of the 

trier of fact regarding the credibility of witnesses or the weight 

to be given to their testimony. Matter of B.T. B. (1992) , 254 Mont. 

449, 454, 840 P.2d 558, 560-61. 

We conclude that the record contains substantial credible and 

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 forth above, the court awarded 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 "time necessary to acquire sufficient education . . . 
to find appropriate employment" factor in 5 40-4-203(2)(b), MCA. 

Robert's argument regarding the "standard of living" factor is 

that the amount of maintenance awarded was based on Priscilla's 

testimony that she desired a degree in certified public accounting 

in order to achieve a standard of living higher than she enjoyed 

during the marriage. 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 relation to 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 testimony had no bearing on Priscilla's need, as found by the 

court, to obtain additional education in order to support herself 

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 for an 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 accounting 
degree. Priscilla testified that it would take her three years to 

obtain the degree, The court awarded maintenance for three years 

or until, with due diligence, she completedthe education necessary 

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 is distinguishable, however. There, 

the spouse testified that she would need two to five years to get 

the degree; the district court awarded maintenance 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 obtain the accounting degree. The court awarded maintenance 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 ~arriase of 

Zander. Rather, it represents the practical, common sense 

understanding by the District Court that even with diligence on 

Priscilla's part, it might 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 degree within a period of time thereafter which would 

comport with a reasonable person's definition of "due diligence,I1 

Robert's remedy will be to move the court to modify the maintenance 

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 that neither statute nor case law require such 

guaranteed outcomes as Robert apparently believes are necessary to 

support an award of maintenance during a reasonable period of 

additional education or training. The District Court did 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. 

Justices 
May 17, 1994 

CERTIFICATE OF SERVICE 

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

following named: 

Gary A. Crowe, Esq. 

Attorney at Law 

P. 0. Box 924 

Kalispell, MT 59903-0924 

Randy K. Schwickert, Esq. 

Anorney at Law 

6336 Hwy. 93 So. 

Whitefish, MT 59937 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA