No. 89-077 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

IN RE THE MARRIAGE OF 

ELAINE HARLAN RUDIO, 

Petitioner and Appellant, 

and 

WILLIAM HARLAN, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, . 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. \ 

, - COUNSEL OF RECORD: C. I 

.I 

--7 For Appellant: 

Darla J. Keck; Datsopoulos, MacDonald & Lind, Missoula, 

Montana 

David B. Cotner; Boone, Karlberg & Haddon, Missoula, 

Montana 

For Respondent : 

Kerry N. Newcomer; Geiszler, Taylor, Newcomer & ~cClain, 

Missoula, Montana 

Filed: 

Submitted on Briefs: July 7, 1989 

Decided: Augast 24, 1989 

I Clerk 
Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a judgment issued on the 

findings of fact and conclusions of law in the parties' 

marriage dissolution action in the Fourth Judicial District 

Court, Missoula County, Montana. Petitioner/appellant wife 

argues the court abused its discretion when it arbitrarily 

valued the husband's pension plan, awarded minimal 

maintenance to the wife for a limited period of time, and 

required the wife to pay her own attorney's fees. The 

findings and judgment of the District Court are reversed and 

remanded for a new trial. 

Appellant Elaine Harlan (Elaine) and respondent William 

Harlan (Bill) were married March 10, 1962. At the time of 

the marriage, Elaine had just graduated from high school and 

Bill was a laborer for the predecessor of Stone Container 

Corporation. Bill has continued to work for the same company 

for the past 27 years. 

Elaine was a housewife throughout the marriage. She 

raised the parties1 two children, both of whom had reached 

the age of emancipation at the time of the parties' 

separation. Elaine also did the cooking, cleaning and 

shopping for the family. Elaine's work experience outside of 

the home was very limited, consisting of temporary part time 

work as a day care attendant, election judge, and home care 

attendant. 

Bill completed an apprenticeship program with Stone 

Container and is now an industrial electrician. At the time 

of the trial, Bill's hourly wage was $17.65 per hour, or 

approximately $38,300 per year. 

After 24 years of marriage, the parties separated in 

March of 1986. When Bill left the parties' home, no 
arrangements were made for Elaine's financial maintenance. 

Consequently, during the 29 months between the time of 

separation and trial, Elaine spent all of the money from one 

of the parties' savings accounts, approximately $17,000, in 

order to live. During this same time, Bill consumed his 

regular take-home pay of more than $500 per week, and $175 

per month which he received from a contract receivable. 

Additionally, Bill depleted all of the funds from another of 

the parties' savings accounts, which also amounted to 

approximately $17,000. All told, Bill spent over $71,750 

during this period of time. He could not account for this 

money at trial. 

Elaine was not informed by her original counsel that 

she could receive financial support from Bill during the 

period of separation. It was not until Elaine retained new 

counsel in 1988 that she sought an award of temporary 

maintenance. After notice of a hearing to set maintenance, 

the parties stipulated to a maintenance amount of $800 per 

month. 

In March of 1988, Bill was "married" to Bonnie Lucier 

in Hawaii. Although Bill concedes the marriage is invalid, 

he and Bonnie Lucier live together, share monthly expenses, 

and expect to "remarry." Bonnie Lucier presently has assets 

of nearly $230,000, and earns between $600 and $800 per month 

from investments. Additionally, Bill's $175 per month 

contract receivable is payable through August, 2002. 

Elaine requested an award of permanent maintenance 

because she had no income producing property, and no 

employment skills which would provide her with sufficient 

funds to cover her monthly expenses. 

During trial, Kathy Kleinkopf, a certified 

rehabilitation counselor, described Elaine as fragile, 

nonassertive, extremely frightened, directionless, and 
possessing a weak self-presentation. Kleinkopf stated that 

she did not believe Elaine had the skills to seek or get 

employment, in part because Elaine's work history was 

"non-existent for practical purposes." Kleinkopf recommended 

that Elaine enter a five-week pre-vocational program at the 

Missoula Vocational Technical Center, to be followed by six 

quarters of clerical training from the Vo-Tech Center which 

would take at least two years to complete. Kleinkopf stated 

that it would be more advantageous for Elaine to obtain a 

bachelor's degree from the University of Montana, a course of 

study which would last through June, 1993. 

The parties did not dispute the value of most of their 

assets. At trial, however, Bill disagreed with Elaine's 

expert's evaluation that the Stone Container pension plan was 

worth $20,600. Bill stated the pension plan was only worth 

$10,000. He offered this round figure because he believed he 

had been exposed to asbestos at his work place. He concluded 

that since he is a smoker, he does not expect to live as long 

as the expert calculated. Elaine's counsel objected to this 

testimony because it was speculative and without foundation. 

The trial judge sustained the objection. 

Bill also disagreed with Elaine's valuation of her 

automobile, a 1977 Pontiac. Elaine testified that the car 

got an average of ten miles per gallon and would soon need to 

be replaced. The Pontiac was appraised for purposes of the 

trial at $450. Bill disagreed and gave this unqualified 

opinion: 

[Direct examination by Bill's counsel:] 

Q. Did you have a chance to review the 

appraisal . . . for the '77 Pontiac? 

A. Yes. I viewed it in your office the 

other night. 
Q. Do you agree with that appraisal? 

A. No, I do not. 

Q. What do you think the car is worth? 

A. Well, I know the car two and a half 

years ago was in excellent shape, the 

motor was taken care of extremely well by 

my father, the interior was spotless. 

That's why it was valued at that time 

--the lawyer that I had handling my 

father's estate --he said let's just slap 

three thousand dollars on it. I think it 

was worth more than that if we would have 

valued then. 

Q. What do you think it's worth now? 

Just what do you think-- 

A. I would say it's worth at least 

fifteen hundred. 

Elaine testified that her repairman found a leak in the 

24-year-old roof of her house and that she obtained an 

estimate for its repair. The estimate presented at trial, 

for $1,470, was to lay new shingles over the old. She 

testified that she had since leaned the old shingles would 

have to be removed at an additional cost of $550. 

Bill also disagreed with the estimate for the roofing 

job, however, he did not disagree that a repair was 

necessary. At trial, Bill gave his opinion that "I know that 

I could have it done cheaper . . . I think I can get it done 

for nine hundred." 

In its findings of fact, conclusions of law, and decree 

of dissolution, the District Court divided the property 

essentially as the parties agreed: 
Pro~ertv to Elaine Harlan 

Residence at 316 Dearborn (unencumbered) $47,000.00 

Household furnishings (including player 

piano & other property in her 

possession except the property 

awarded Respondent below, presently 

in Petitioner's possession) 3,500.00 

Dain Bosworth 

Apache oil 350.00 

WIN cash account 3,584.11 

Great Falls municipal bond 5,583.15 

Jones' Cable interest (approx.:) 9,000- 15,000.00 

Elaine's IRA 1,683.78 

1977 Pontiac 700.00 

1975 Dodge pickup 500.00 

WFS&L checking 313.84 

4 1987 tax year refund 665.50 

$72,880.38--78,880.38 

Property to Bill Harlan 

Luptak Harlan Escrow 

(remains of father's estate) 17,117.00 

Champion/Stone retirement 10,000.00 

Dain Bosworth-IRA account 11,573.00 

Personal Property (including all items in 

Bill Harlan's possession) 

one kerosene decorator lamp 

Grandmother's musical instrument 

Grandfather's diamond willow cane 

All father's tools, equipment and miscellaneous 

items (trunk with estate papers) 

Remainder of Bill's hand and power tools 

Other items from garage, i.e. battery charger 

Grandmother's .32 cal. H & R revolver and cartridges 

Ruger 10-22 cal. rifle 

Firepoof box and contents, purchased by father 

Tax returns and supporting documents for 1980-87 

3 h.p. Evinrude outboard and remote tank with oil 

4 h.p. motor and fan blade 

Items purchased from Bill's Aunt Mary Lay 

Father's golf clubs 

Grandmother's coffee table from living room 

3 remaining silver coins or medallions 2,000.00 

1988 Ford pickup (subject to encumbrance) 6,200.00 

3 1987 tax year refund 665.50 

$47,555.50 
Although the court sustained counsel's objection to 

Bill's testimony regarding the value of the pension plan, it 

nonetheless accepted Bill's valuation and reasoning. In its 

opinion and order, the court made the following statement: 

Petitioner requests that the Court 

amend its Findings of Fact Nos. 19, 20 

and 24 relating to the Court's valuation 

of Respondent's pension. Underpinning 

Michael Duffield' s present value 

calculation for this pension is the 

assumption that Respondent has a life 

expectancy equal to that of other 

American males. Respondent's place - of 

employment exposes him to toxic or 

harmful substances. ~ost American males 

------- do not work in this type of environment. 

Duffield's assumption - disregards this 

exposure - and renders - present value 

calculations unreliable. The Court has 

rejected Duffield's testimony in this 

instance as not credible because his 

analysis disregards the environmental 

factors of Respondent's employment. 

(Emphasis added.) 

The court ruled that Bill would pay Elaine $100 per 

week only while she is enrolled in the Missoula Vo-Tech 

program. The payments were not to exceed two years. The 

court reasoned: 

In the over two years between 

separation and trial Petitioner had 

access to savings, cash and in kind 

support from Respondent exceeding 

$26,000.00. Petitioner also received all 

the marital assets except Respondent's 

retirement, Respondent's IRA account, 

personal possessions and half of the 1987 

tax year income tax refund. 

The Court considered the expenses 

that Petitioner claimed at trial, her 

spending after the separation, the ass= 

she was awarded and the factors set out 
in 55 40-4-202 and 40-4-203, MCA. The 

Court's award of short term educational 

maintenance was designed to require 

Petitioner - to responsibly marshal her 

resources -- and make choices ---- as to how to 

apply her assets - to achieve her goals. 

-- It is unfortunate, but true, -- that a 

substantial portion -- of the marital estate 

was dissipated between separation and 

trial a Petitioner. The opportunityput those funds to more constructive use 

is forever gone. Petitioner's track 

record is such that it appears to the 

Court that her "needs" will always exceed 

the funds available to her. There was no 

convincing testimony at this trial to 

show why Petitioner should not be 

required to make the same choices about 

allocation of resources as other 

non-handicapped people. (Emphasis 

added. ) 

The court valued the 1977 Pontiac at $700 because Bill 

"thought" the car was worth more than the written appraisal 

and because of the "parties' respective biases regardinq 

valuation. " However, when Elaine valued the personal 

property remaining in her possession at $2,500 to $3,000, and 

Bill valued the same property at $3,500, the court valued the 

property at $3,500. Additionally, the court refused to award 

Elaine any funds for the repair of the roof because "[nlo 

necessity for immediate replacement was shown by Petitioner." 

The District Court also accepted Bill's unsupported 

suggestion that Elaine could inherit property from her 

parents. In Finding of Fact No. 15, the court stated: 

Petitioner's parents are in their 

seventies and are presently in good 

health. Petitioner's parents - live 

comfortably. Petitioner can expect a 

modest - to substantial inheritance when 
- her parents - die, barring unforeseen 

circumstances. (Emphasis added. ) 

The District Court disallowed any award of attorney's 

fees to Elaine because it concluded "Petitioner has 

sufficient property, cash and short term assistance to pay 

her own attorney's fees and costs." 

Elaine raises the following issues for review: 

1. Did the District Court abuse its discretion in its 

valuation of Bill's pension plan? 

2. Did the District Court abuse its discretion when it 

awarded only $100 per week in financial assistance, and when 

it ruled the assistance was not to exceed two years? 

3. Did the District Court abuse its discretion when it 

required Elaine to pay her own attorney's fees? 

Issue No. 1 

Did the District Court abuse its discretion in its 

valuation of Bill's pension plan? There can be no question 

but that the court did abuse its discretion. There is 

absolutely no evidence in the record to support the court's 

valuation of the pension plan. Bill does not contest 

Elaine's expert's methodology in valuing the pension plan. 

He merely thinks the mortality table used by the expert does 

not apply to him. No doubt it would be helpful to such 

valuations if it were possible to determine exactly how long 

a person will live. However, such necessarily speculative 

devices must be utilized in order to make a reasonable 

calculation. As we held in In re Marriage of Bowman (Mont. 

1987), 734 P.2d 197, 44 St.Rep. 488, it is an abuse of 

discretion to arbitrarily pick a method of calculation which 

enjoys no support from the record. Likewise, it is an abuse 

of discretion to arbitrarily value a pension plan through the 

use of no calculation whatsoever. 
Bill had full opportunity to produce expert testimony 

or other reliable evidence which would illustrate that he has 

a shorter life expectancy than that used by the expert. 

However, Bill presented no evidence that his health was poor, 

no evidence that he was ever exposed to any toxic substances, 

no evidence that all other workers at Bill's place of 

employment died before reaching age 76, no evidence that 

Bill's life expectancy was anything other than age 76, and 

absolutely no evidence supporting the rough figure valuation 

of $10,000. That valuation was clearly in error. 

Issue No. 2 

Did the District Court abuse its discretion when it 

awarded only $100 per week in financial assistance, and when 

it ruled the assistance was not to exceed two years? When 

the marital property is properly considered and valued, it is 

clear the maintenance award was an abuse of discretion. 

From the record it is apparent that the District Court 

was convinced of two things: 1) that Elaine was receiving the 

vast majority of the marital property; and 2) that Elaine 

spent too much money between the time of separation and 

trial. In spite of this, however, the court concluded Elaine 

was entitled to an award of maintenance. 

If all of the marital property is properly valued, the 

difference between what each party will receive is not great. 

When the valuation of the car is recalculated, and the value 

of the pension is properly established, the property 

distribution will be much closer: 
Property to Elaine 

Residence 

Household furnishings 

Dain Bosworth 

Apache oil 

WIN cash account 

Great Falls Municipal Bond 

Jones' Cable interest 

Elaine's IRA 

1977 Pontiac 

1975 Dodge pickup 

WFS&L checking 

3 1987 tax year refund 

Property to Bill 

Luptak Harlan Escrow 

Champion/Stone retirement 

Dain Bosworth-IRA account 

Personal Property 

1988 Ford pickup 

4 1987 tax year refund 

Section 40-4-203, MCA, provides that the court may 

award maintenance if the spouse seeking maintenance: 

(a) lacks sufficient property to 

provide for his reasonable needs; and 

(b) is unable to support himself 

through appropriate employment . . . 

(2) The maintenance order shall be in 

such amounts and for such periods of time 

as the court deems just, without regard 

to marital misconduct, and after 

considering all relevant facts including: 

(a) the financial resources of the 

party seeking maintenance, including 

marital property apportioned to him, and 

his ability to meet his needs 

independently . . . ; 
(b) the time necessary to acquire 

sufficient education or training to 

enable the party seeking maintenance to 

find appropriate employment; 

(c) the standard of living 

established during the marriage; 

(dl the duration of the marriage; 

(e) the age and the physical and 

emotional condition of the spouse seeking 

maintenance; and 

(f) the ability of the spouse from 

whom maintenance is sought to meet his 

needs while meeting those of the spouse 

seeking maintenance. 

There is no evidence in the record that the District Court 

adequately considered the factors of 5 40-4-203, MCA. Even 

though the marital property was not properly valued, it is 

evident that the court did not consider the nature of the 

majority of the assets awarded Elaine. In re Marriage of Tow 

(Mont. 1987), 748 P.2d 440, 44 St.Rep. 2154. By far the most 

valuable asset awarded to ~laine, the residence, is not 

income producing, but rather income consuming property. 

The income producing property awarded to Elaine 

included : 

Dain Bosworth 

Apache Oil 

WIN cash account 

Great Falls Municipal Bond 

Jones' Cable 

WFS&L checking 

3 1987 tax year refund 

Total Income Producing Assets: 

Even a 10% annual return on this amount of money would only 

generate $1,949.96 per year before state and federal taxes 

are deducted. Elaine listed her monthly expenses as 

exceeding $800 per month, exclusive of any costs for 
education and retraining. Additionally, Kleinkopf testified 

that the pre-vocational program would cost $199, and the 

Vo-Tech programs would cost $1,504 per year. 

We conclude the court erred in awarding temporary 

maintenance of $100 per week in light of Elaine's financial 

resources, education and employment skills, age, physical and 

emotional condition, the duration of the marriage, the 

standard of living established during the marriage, and 

Rill's ability to provide Elaine with maintenance in an 

amount which is fair and just. In view of these factors, the 

temporary award of $100 per week was unjustified. There was 

no evidence which established what Elaine's income and 

expenses would be after she obtains employment. An 

assumption of self-reliance after that time is not supported 

by the record. Nor was there any evidence which would 

support a conclusion that Elaine would inherit anything from 

her parents. Further, an award of permanent maintenance may 

be modified or terminated to reflect a change of 

circumstances, such as these assumed by the court. Section 

40-4-208, MCA. 

Finally, there is no evidence to support a conclusion 

that Elaine spent too much money from the time of the 

separation to the date of the trial. While Elaine may have 

spent over $26,000, this amounts to less than $900 per month 

for the 29 month period. Still, while there was nothing more 

than Bill's insinuation that this amount was excessive, the 

$26,000 figure pales when compared to the nearly $72,000 

spent by Bill during this same time period, an amount the 

court failed to consider in its distribution of the marital 

property. 
Issue No. 3 

Did the District Court abuse its discretion when it 

required Elaine to pay her own attorney's fees? We conclude 

it did. The District Court denied Elaine's request for 

attorney's fees and costs because it concluded she had 

sufficient property, cash and short-term assistance to pay 

them herself. However, as we have concluded above, the court 

incorrectly valued the marital property and erred in awarding 

limited maintenance. Therefore, and because we are returning 

this cause for a new trial, this issue must be re-examined by 

the court in light of a new property distribution or 

valuation, and award of maintenance. 

Reversed and remanded for a new trial. 

I We concur: .' 

A */ * 

&ii!!&@dU,, Justices