No. 02-463 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2003 MT 63 

In Re the Marriage of: 

HAROLD M. SMITH, 

Petitioner and Respondent, 

and 

SUSAN A. SMITH, 

Respondent and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, Cause No. CDR-2001-96, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David N. Hull, Attorney at Law, Helena, Montana 

For Respondent: 

Robert M. Cummins, Attorney at Law, Helena, Montana 

 Submitted on Briefs: December 5, 2002 

Decided: March 31, 2003 

Filed: 

__________________________________________ 

Clerk
2 

Justice Terry N. Trieweiler delivered the Opinion of the Court. 

¶1 Harold Smith, the Petitioner, filed a petition for dissolution of his marriage to Susan 

Smith in the District Court for the First Judicial District in Lewis and Clark County. The 

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

which dissolved the marriage and distributed the marital estate. The Respondent, Susan 

Smith, appeals the District Court's distribution of the marital estate and denial of her claim 

for maintenance. We affirm the judgment of the District Court. 

¶2 The issue on appeal is whether the District Court abused its 

discretion when it distributed the marital estate and denied 

Susan's claim for maintenance. 

FACTUAL AND PROCEDURAL BACKGROUND 

¶3 Harold and Susan Smith married on September 9, 1966, in 

Yellowstone County, Montana. Harold, who was born on April 1, 

1948, is currently an aviator with the rank of Chief Warrant 

Officer 4 in the Montana Army National Guard. Susan, who was born 

on October 25, 1946, is currently a Purchasing Supervisor for the 

State of Montana Department of Environmental Quality, and has 

worked for the State of Montana for approximately 24 years. Harold 

and Susan have lived separately since June 2, 2000. On March 22, 

2001, Harold petitioned for dissolution of their marriage. 

¶4 At trial, Harold testified that after 20 years of active 

service for the National Guard, he is required by law to retire as 

a pilot effective April 1, 2003, and that he has several medical 

conditions which make a future career in aviation unlikely. These 
3 

conditions include high blood pressure, high cholesterol, high 

blood sugar, and Type II Diabetes. 

¶5 Susan testified that she had worked for the State of Montana 

for 24 years and that she anticipates that she will remain at her 

position for an additional five to seven years. 

¶6 Harold's annual salary at the time of trial was $76,944, but 

was to be reduced to $75,288 subsequent to the final divorce 

decree, and to $27,545 following his retirement on April 1, 2003. 

Evidence at trial established that Susan's annual salary was 

$30,629. 

¶7 In its Findings of Fact and Conclusions of Law, the District 

Court adopted Susan's suggested distribution of the personal and 

real property, other than retirement income, and distributed it as 

follows: 

 Harold Susan

Checking Account–CU $ 1,200 $ 

 250 

Checking Account–H&S Ent. $ 318 

 

Checking Account–AFSB $ 399 

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Savings Account $ 13,677 $ 

 675 

Deferred Compensation–Harold $ 5,051 

Deferred Compensation–Susan $ 41,416 

Insurance Fund–Cash Value $ 

 5,207 

2000 Tax Return $ 

 6,200 

Real Property–5.0 acres $ 

35,000 

Oppenheimer Fund 

 $ 

 1,029 

House Sale Proceeds $ 79,000 $ 

79,000 

Franklin Fund - Utility $ 

 6,749 

Franklin Fund - Government $ 

12,390 

D.A. Davidson Money Market $ 

 5,074 

D.A. Davidson Securities 

 $ 

 3,517 

Trailer home $ 1,750 $ 

1,750 

Other Personal Property $ 34,987 $ 

34,987

Total $ 137,263 $ 233,244 

Accordingly, not counting retirement income, Harold received 37% of 

the marital property and Susan received 63% of the marital 

property. The District Court's distribution of the above property 
5 

is not challenged; however, Susan does dispute the District Court's 

final distribution of the parties' retirement plans. 

¶8 The District Court concluded that Harold was entitled to the 

entire amount of his military retirement, which will pay him 

$2,295.45 per month ($27,545 annually) beginning April 1, 2003, 

until his death. In its findings, the District Court noted that 

the only valuation expert at the trial, Philip Bird, calculated the 

present value of Harold's retirement to be $315,173 as of August 2, 

2001. The District Court also distributed to Harold his pension 

plan with Northwest Airlines which would, according to Bird, pay 

$118.89 per month for life at age 65. Bird calculated the present 

value of this pension plan to be $6,791. Finally, the District 

Court distributed to Susan her entire retirement plan from the 

Montana Public Employee Retirement System. The evidence was that 

if Susan retired at age 55, she would receive monthly payments of 

$747 per month, while if she retired at age 60, she would receive 

$1,543 per month. According to Bird, using the $747 per month 

payment for calculation of her retirement plan's present value, the 

present value of her retirement account was $126,686 as of October 

18, 2001. The District Court acknowledged all of Bird's valuations 

with respect to the retirement accounts in its Findings of Fact. 

¶9 The District Court's final distribution of the marital estate, 

including retirement income, based on present value, is set forth 

below: 

Harold Susan 

Military Retirement $ 315,173 

Northwest Airlines Retirement $ 6,791 

State of Montana Retirement $ 126,686 

 
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All other assets $ 137,263 $ 233,244

Total Marital Assets $ 459,227 $ 359,930 

% Share of Present Value 

of the Marital Estate 56.06% 

 43.94% 

STANDARD OF REVIEW 

¶10 We review a district court's division of marital assets to 

first determine whether the district court's findings are clearly 

erroneous. In re Marriage of Stufft (1996), 276 Mont. 454, 459, 

916 P.2d 767, 770. If the district court's findings of fact are 

not clearly erroneous, we will not disturb the district court's 

distribution of marital property unless the district court abused 

its discretion. In re Marriage of Smith (1995), 270 Mont. 263, 

267-68, 891 P.2d 522, 525. The standard for determining whether a 

district court abused its discretion is "whether the trial court 

acted arbitrarily without employment of conscientious judgment or 

exceeded the bounds of reason resulting in substantial injustice." 

In re Marriage of Rolfe (1985), 216 Mont. 39, 45, 699 P.2d 79, 83 

(citation omitted). 

DISCUSSION 

¶11 Did the District Court abuse its discretion when it 

distributed the marital estate and denied Susan's claim for 

maintenance? 

¶12 There is no contention by either party that the District 

Court's Findings of Fact were clearly erroneous. Susan contends 

that the District Court abused its discretion when it distributed 

the marital estate because the District Court distributed 56% of 

the marital estate to Harold, despite the length of their marriage 

and the fact that Harold earned substantially more income as a 
7 

pilot and would earn more in retirement. She further contends that 

the District Court abused its discretion by trying to forecast the 

parties' future employment and financial situations, and that the 

Court should have instead split the marital estate according to its 

present value. Lastly, Susan contends that in light of the 

District Court's distribution of the marital estate, the District 

Court abused its discretion by denying her claim for maintenance. 

¶13 Section 40-4-202, MCA, vests the District Court with "broad 

discretion to distribute the marital estate in a manner which is 

equitable to each party according to the circumstances of the 

case." Smith, 270 Mont. at 268, 891 P.2d at 525. It does not 

require that the distribution be equal. In re Marriage of Walls

(1996), 278 Mont. 413, 416, 925 P.2d 483, 485. Section 40-4-

202(1), MCA, further provides: 

In making apportionment, the court shall consider the 

duration of the marriage and prior marriage of either 

party; the age, health, station, occupation, amount and 

sources of income, vocational skills, employability, 

estate, liabilities, and needs of each of the parties; 

custodial provisions; whether the apportionment is in 

lieu of or in addition to maintenance; and the 

opportunity of each for future acquisition of capital 

assets and income . . . . 

¶14 The District Court recognized that Harold faced mandatory 

retirement by April 1, 2003. In addition, Harold had several 

health problems, some of which could preclude any future career as 

a pilot. Little testimony or evidence was provided regarding his 
8 

future employability other than his testimony that he would likely 

seek future employment outside the field of aviation. On the other 

hand, the District Court found that Susan could continue her 

employment with the State of Montana at $30,629 per year for 

approximately 5 to 7 years, and that through continued employment 

she could receive $1,543 per month at the age of 60 (October 25, 

2006). Susan testified that she did intend to remain employed for 

5 to 7 years and that she had no current health problems. 

Therefore, Susan's income in the immediate future will, in all 

likelihood, exceed Harold's income. While Harold will be required 

effective April 1, 2003, to draw upon his portion of the marital 

estate as his primary income source, Susan will continue to have 

income from her salary with the State of Montana, continue to 

contribute to her deferred compensation plan and add to the value 

of her retirement plan. Furthermore, the District Court 

distributed a substantial majority of the remaining investment 

accounts and real property to Susan. Based on these facts, we 

conclude that the District Court did not abuse its discretion when 

it distributed the marital estate pursuant to § 40-4-202(1), MCA. 

¶15 We reach a similar conclusion with respect to the District 

Court's refusal to award maintenance to Susan. Section 40-4-

203(1), MCA, provides: 

In a proceeding for dissolution of marriage . . . the 

court may grant a maintenance order for either spouse 

only if it finds that the spouse seeking maintenance: 

(a) lacks sufficient property to provide for his 

reasonable needs; and 

(b) is unable to support himself through appropriate 

employment . . . . 

The record reflects Susan had sufficient property to provide for 

her reasonable needs and was able to support herself through 
9 

employment with the State of Montana. While Harold, when employed 

by the National Guard, earned more income than Susan, that fact 

alone does not require a maintenance award. Therefore, we conclude 

the District Court did not abuse its discretion when it denied 

maintenance payments pursuant to § 40-4-203(1), MCA. 

¶16 For the foregoing reasons, we affirm the judgment of the 

District Court. 

/S/ TERRY N. TRIEWEILER 

We Concur: 

/S/ JIM REGNIER 

/S/ PATRICIA COTTER 

/S/ JAMES C. NELSON 

/S/ JIM RICE