No. 85-577 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MARRIAGE OF 

HARVEY C. SWANSON, 

Petitioner and Appellant, 

and 

NANCY E. SWANSON, 

Respondent and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In a.nd for the County of Flathead, 

The Honorable Frank I. Haswell, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George B. Best, Kalispell, Montana 

For Respondent : 

Stephen C. Berg, Kalispell, Montana 

Submitted on Briefs: Feb. 26, 1986 

Decided: April 3, 1986 

APR 3 - $986 

~j.1ec.I: 

-.---- Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Harvey Swanson appeals the August 26, 1985, decree of 

the Eleventh Judicial District Court, County of Flathead, 

dissolving the marriage of the parties, distributing the 

marital estate, establishing child custody and child support, 

and awarding maintenance to Nancy Swanson. We affirm the 

decree. 

Harvey a-nd Nancy Swanson began living together in 1971 

while Harvey was attending medical school. They were married 

June 2, 1973, and remained together until June of 1983. 

During the course of the marriage, Harvey finished 

medica, school, completed his internship and. practiced 

medicine in at least three different locations. In 1980, the 

couple moved to Kalispell, Montana. In 1981, Harvey took 

over the practice of a deceased Kalispell doctor. He also 

works in the emergency room of the Kalispell hospital. 

Nancy is college educated in marine biology. In recent 

years, she has primarily worked in the home and waitressed. 

A son was born prematurely in the fall of 1975. He has 

undergone intestinal surgery, open heart surgery and two eye 

surgeries. He still experiences neurological difficulties, 

learning disabilities and motor control. problems. Since his 

birth, most of Nancy1 s time and energies have been directed 

toward her son. When her husband left in 1983, Nancy began 

plans to operate a greenhouse out of her home. The business 

has not yet opened, but will eventually provide Nancy with a 

means of support. 

Harvey's medical practice has blossomed. In 1384 his 

gross income, after paying his employees, was $109,000. He 

also has Keogh and IRA accounts totalling over $58,000. The 
medical- practice was valued at $127,200; $76,700 of which is 

goodwill. 

In a well-rea.soned. and detailed decree, the District 

Judge valued the marital estate as of the date of dissolution 

at $254,374. After awarding Nancy $48,000, the amount of her 

inheritance directly traceable to present day assets, the 

trial judge divided the remainder of the estate equally 

between the parties. Nancy's share consists of: 1) a 

$17,000 lump sum payment from Harvey due September 15, 1985; 

2) the unpaid principle balance on the family home, $46,200, 

which is to be paid by Harvey; and 3) $10,000 annual payments 

commencing in November of 1987 and running until Harvey's 

obligation to Nancy is fulfilled. The decree also awarded 

Harvey and Nancy joint custody of their son, Colin, with 

Nancy designated as the primary residential parent. Harvey 

was ordered to make $890 a month child support payments and 

$300 a month education fund payments to Nancy. In addition, 

maintenance payments from Harvey to Nancy were ordered as 

follows: 

1) the monthly $568 payment on the family home 

through December 15, 1986; and 

2) commencing, January 15, 1987, and continuing 

for five years from the date of the decree, $450 a 

month maintenance payments. 

Finally, the trial judge ordered Harvey to pay Nancy $3,400 

for attorney' s fees. 

In his appeal of the decree, Harvey asserts that the 

District Judge abused his discretion in the following 

respects: 

1. In requiring Harvey Swanson to pay Nancy Swanson 

$890 a month child support and $300 a month toward Colin's 

education fund. 
2. In awarding maintenance to Nancy Swanson. 

3. In valuing the marital estate as of the d.ate of 

dissolution rather than the date of separation. 

4. In valuing the good-will of Harvey's practice at 

$76,700. 

5. In awarding $3,400 in attorney's fees to Nancy 

Swanson. 

CHILD SUPPORT 

Contrary to Harvey's contentions in his brief on 

appeal, the statute governing child support is S 40-4-204, 

MCA. Section 40-4-202, MCA, relied on by Harvey, pertains to 

the distribution of the marital estate between the parties. 

Section 40-4-204 (1) , MCA, requires the trial judge to 

consider the financial resources of the child and the 

custodial parent, the standard of living the child would have 

enjoyed had the parties remained married, the physical and 

emotional condition of the child, his educational needs and 

the financia.1 resources and needs of the noncustodial parent. 

These factors were each given in-depth consideration by the 

trial judge. 

The trial judge was well aware of Nancy's and Colin's 

financial resources as their only resources are those awarded 

Nancy in the dissolution decree. 

Since his father's income exceeds $100,000 a year, Colin 

would have obviously enjoyed a very high standard of living 

had his parents remained married. Conclusion of law number 

three notes the judge's consideration of this fact. 

Findings of fact numbers five and 23 concern Colin's 

physical problems and Learning difficulties. Finding of fact 

23 and conclusion of law number five refer to the special 

educational needs of Colin. 
Finally, the trial judge in findings of fact numbers 19 

and 20 notes Harvey's financial situation. The contingent 

nature of Harvey's work in the emergency room is irrelevant. 

He was earning money from that job at the time of the decree. 

The trial judge was required to consider that income. 

Section 40-4-204 (1) (e) , MCA. 

The child support and educational fund a.wards are 

clearly supported by the evidence before the trial judge. 

Colin's needs are more specialized than the normal ten year 

old. He requires language therapy and physical therapy. 

Individualized instruction in various sports which emphasize 

coordination could also prove helpful. Colin's father has 

the financial ability to provide this education for his son. 

We find no abuse of discretion by the trial judge. 

MAINTENANCE 

Section 40-4-203, MCA, governs when maintenance should 

be awarded. Harvey's major objection appears to be over the 

length of the award, five years. Section 40-4-203(2), MCA is 

thus particularly relevant: 

(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, including the extent to which a 

provision for support of a child living with the 

party includes a sum for that party as custodian; 

(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; 

(d) 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. 

Again, each of these factors was considered by the trial 

judge. Harvey relies heavily on Nancy's testimony that in 
two to three years she will be able to support herself with 

monies earned through opera.tion of the greenhouse. In fact, 

Nancy testified that she hoped to be netting $5,000 annually 

from the greenhouse in two to three years. This testimony 

was hopeful speculation. Even if Nancy succeeds in this 

goal, $5,000 a year certainly will not allow Nancy to live 

within the standard established during her marria.ge. 

A large amount of Nancy's share in the estate is 

non-liquid. Over S38,000 of the $48,000 recognized as her 

inheritance is tied up in her house. The majority of the 

other lump sum payments have gone to the greenhouse. The 

$10,000 annual payments do not start until November of 1987. 

Even then, Nancy's standard of living will be far lower than 

that to which she has grown accustomed. The trial judge did 

not abuse his discretion in awarding Nancy maintenance for 

five years. 

VALUATION OF THE MARITAL ESTATE 

Time of Valuation 

The general rule provides that the value of the marital 

estate should be determined at or near the time of 

dissolution. Vivian v. Vivian (1978), 178 Kont. 341, 344, 

583 P.2d 1072, 1074. In In re the Marriage of Wagner (Kont. 

1984), 679 P.2d 753, 758, 41 St.Rep. 409, 416, however, this 

Court recognized "that unique circumstances of marital 

relationships can mod.ify this generally-accepted date of 

valuation of assets." The trial judge found no "unique 

circumstances" in this case to justify valuing the estate as 

of the date of separation. Neither do we. 

Harvey argues that he should not be penalized for 

investing his money in retirement funds during the separation 

if Nancy is not penalized for investing her money in the 

greenhouse. However, Harvey has sources of income other than 
the retirement funds. Nancy's sole source of income outside 

her marriage is the greenhouse. We find no abuse of 

discretion by the trial judge. 

Goodwi 11 

Harvey Swanson also objects to the consideration by the 

trial judge of the goodwill associated with his medical 

practice. Harvey contends that his practice has no goodwill. 

The trial judge valued the goodwill of the practice at 

$76,700 and included this amount in the marital estate. Once 

again we find no abuse of discretion. 

This Court recognized the existence of the goodwill of a 

professional practice and included it in the marital estate 

in In re the Marriage of Hull (Mont. 1986), 712 P.2d 1317, 43 

St.Rep. 107. In Hull, the trial judge relied on the 

testimony of a certified public accountant (CPA) hired by the 

wife in determining the value of the goodwill of an 

anesthesiologist's practice. Likewise, here the trial judge 

relied on the testimony of a CPA hired by the wife. We find 

no error. The CPA had recent experience in valuing the 

goodwill of medical practices. She had access to all 

relevant records from the medical practice. The method of 

valuation was reasonable and essentially unrebutted. 

Harvey's expert on the subject was not even aware that 

goodwill is recognized in Montana. Nor did he have access to 

Harvey's accounts receivable. The CPA's testimony was 

"understandable, substantial in nature, and reasonable." 

Hull, 712 P.2d at 1323, 43 St.Rep. at 114. 

Valuation of the Retirement Funds 

Harvey objects to the failure by the District Court to 

consider his tax obliga.tions on the retirement funds. There 

is no evidence that Harvey intended to 1iquida.te those funds 

to pay his marital obligation. The current value of those 
funds is not affected by taxes. Therefore, there is no error 

in the Court's refusal to consider tax consequences at this 

time . 

ATTORNEY'S FEES 

Harvey's last contention is that the trial judge erred 

in ordering him to pay Nancy $3,400 in attorney's fees. The 

order is valid pursuant to 5 40-4-110, MCA. 

Costs - attorney's fees. The court from time to 

time, after considering the financial resources of 

both parties, may order a party to pay a reasonable 

amount for the cost to the other party of 

maintaining or defending any proceeding under 

chapters 1 and 4 of this title and for attorney's 

:fees, including sums for legal services rendered 

and costs incurred prior to the commencement of the 

proceeding or after entry of judgment. The court 

may order that the amount be paid directly to the 

attorney, who may enforce the order in his name. 

The award of attorney's fees under this statute is "largely 

discretionary with the District Court, and we will not 

disturb its judgment in the absence of an abuse of that 

discretion." In re the Marriage of Milanovich (Mont. 1985) , 

697 P.2d 927, 929, 42 St.Rep. 436, 439, quoting Talmage v. 

Gruss (1983), 202 Mont. 410, 412, 658 P.2d 4191 420- 

The decision of the District Court is affirmed in all 

aspects. 

We concur: