No. 89-077

INTHE SUPREMECOURTOF THE STATEOF MONTANA
1989

INRE THEMARRIAGE OF ELAINE HARLAN RUDIO, PetitionerandAppellant, and

WILLIAM HARLAN, Respondent and Respondent.

APPEAL FROM: District Court of the Fourth JudicialDistrict,

. In and for the County of Missoula, TheHonorableJohn S. Henson, Judgepresiding. \

,- COUNSELOF RECORD: C. I

.I
--7 ForAppellant:
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 ClerkJustice 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/appellantwife 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 respondentWilliam 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. Billhas continued towork 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 $38,300per year. After 24 years of marriage, the parties separated in March of 1986. When Bill left the parties' home, noarrangements were made for Elaine's financial maintenance. Consequently, during the 29 months between the time of separation and trial,Elaine spent all of themoney 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. Itwas 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 ofnearly $230,000,and earnsbetween $600 and $800per month from investments. Additionally, Bill's $175 per month contractreceivable ispayable 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 hermonthly expenses. During trial, Kathy Kleinkopf, a certified rehabilitation counselor, described Elaine as fragile, nonassertive, extremely frightened, directionless, andpossessing 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 practicalpurposes." 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 studywhich would last throughJune, 1993. The parties did not dispute the value ofmost of their assets. At trial, however, Bill disagreed with Elaine's expert's evaluation that the Stone Containerpension plan was worth $20,600. Bill stated the pension plan was only worth $10,000. He offered this round figure becausehe believed he had been exposed to asbestos at hiswork place. He concluded that sincehe 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 milesper gallon and would soonneed 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 othernight.Q. Do you agree with that appraisal?

A. No, Idonot. 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 motorwas 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 wasworth more than that ifwewould 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 fifteenhundred. Elaine testified thather 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 tobe 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 gavehis opinion that "Iknow that I could have it done cheaper

# . .. I think I can get it done fornine hundred." In its findings of fact,conclusionsof law,and decree of dissolution, the District Court divided the property essentiallyas the parties agreed:Pro~ertv to Elaine Harlan Residence at 316 Dearborn (unencumbered) $47,000.00 Household furnishings (including player piano & other property inher possession except the property awarded Respondent below,presently in Petitioner's possession) 3,500.00 DainBosworth Apache oil 350.00 WIN cash account 3,584.11 Great Fallsmunicipal 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 (remainsof father's estate) 17,117.00 Champion/Stoneretirement 10,000.00 DainBosworth-IRA account 11,573.00 Personal Property (includingall items in Bill Harlan's possession) one kerosenedecorator lamp Grandmother's musical instrument Grandfather'sdiamond willow cane All father's tools,equipmentand miscellaneous items (trunkwith estatepapers) Remainder of Bill'shand and power tools Other items fromgarage, i.e. battery charger Grandmother's .32 cal. H & R revolver and cartridges Ruger 10-22 cal. rifle Firepoofbox 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 fanblade Itemspurchased fromBill'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 (subjectto encumbrance) 6,200.00 

### 3 1987 taxyear refund 665.50 $47,555.50Although 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. (Emphasisadded.)
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 outin 

### 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 

### -- -- substantialportion 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 toher. 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 inher possession at $2,500 to $3,000,and Billvalued the sameproperty at $3,500, the courtvalued 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 replacementwas shownby Petitioner." The District Court also accepted Bill's unsupported suggestion that Elaine could inherit property from her parents. InFinding of FactNo. 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 whenher parents die, barring unforeseen 

### - - circumstances. (Emphasisadded.) 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 pensionplan? 2. Did the District Court abuse its discretion when it awarded only $100 per week in financial assistance, and when itruled the assistancewas not to exceed two years? 3. Did theDistrictCourt abuse its discretion when it required Elaine topay her own attorney's fees?

IssueNo. 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 themortality 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 amethod of calculationwhich enjoys no support from the record. Likewise, it is an abuse of discretion to arbitrarily value apension plan through the

use of no calculationwhatsoever.Bill had full opportunity to produce expert testimony or other reliableevidencewhichwould illustrate thathe has

a shorter life expectancy than that used by the expert. However,Billpresented no evidence that his healthwas poor,
no evidence thathe 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 valuationwas clearly in error.

IssueNo. 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 isproperly considered and valued, it is clear the maintenance awardwas an abuse of discretion. From the record it is apparent that the DistrictCourt

was convinced of two things: 1) that Elainewas receiving the vast majority of the marital property; and 2) that Elaine spent too much money between the time of separation and trial. In spiteof this,however, the court concluded Elaine

was entitled to an award ofmaintenance. If all of the marital property is properly valued, the difference betweenwhat each partywill receive is not great. When the valuation of the car is recalculated,and the value of the pension is properly established, the property distributionwill be much closer:Property to Elaine
Residence Household furnishings Dain Bosworth Apache oil WIN cash account Great FallsMunicipal Bond Jones'Cable interest Elaine's IRA 1977Pontiac 1975Dodge pickup WFS&L checking 

### 3 1987 taxyear refund

Property to Bill Luptak Harlan Escrow Champion/Stoneretirement Dain Bosworth-IRA account Personal Property 1988Fordpickup 

### 4 1987 taxyear refund

Section 40-4-203, MCA, provides that the court may awardmaintenance 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 suchperiods of time as the court deems just, without regard to marital misconduct, and after consideringall 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 themarriage; (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 seekingmaintenance.
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 reMarriage of Tow

(Mont. 1987), 748 P.2d 440, 44 St.Rep. 2154. By far themost valuable asset awarded to ~laine,the residence, is not incomeproducing, but rather income consuming property. The income producing property awarded to Elaine included: DainBosworth Apache Oil WIN cash account Great Falls MunicipalBond Jones' Cable WFS&L checking 

### 3 1987 taxyear refund Total Income ProducingAssets:

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 foreducation and retraining. Additionally, Kleinkopf testified that the pre-vocational program would cost $199, and the Vo-Tech programs would cost $1,504per 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. Inview of these factors,the temporary award of $100per 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 $900per month for the 29month period. Still,while therewas nothingmore 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.IssueNo. 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,aswe have concluded above, the court incorrectlyvalued themaritalproperty and erred in awarding limited maintenance. Therefore, and becausewe are returning this cause fora new trial,this issuemust be re-examined by the court in light of a new property distribution or valuation, and award ofmaintenance. Reversed and remanded for a new trial.



### I We concur: .'
A */ *



# &ii!!&@dU,, Justices