No. 85-577 INTHE SUPREMECOURT OF THE STATEOF MONTANA 1986

INRE THEMARRIAGE OF HARVEY C. SWANSON, Petitioner and Appellant, and NANCY E. SWANSON, Respondent and Respondent.

APPEAL FROM: District Court of the Eleventh JudicialDistrict, In a.ndfor the County of Flathead, The Honorable Frank I. Haswell, Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: George B. Best, Kalispell,Montana

For Respondent: Stephen C. Berg,Kalispell,Montana

Submitted on Briefs: Feb. 26, 1986 Decided: April 3,1986 

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-.---- ClerkMr. 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,establishingchild custody and child support, and awarding maintenance to Nancy Swanson. We affirm the decree. Harvey a-ndNancy Swanson began living together in 1971 while Harveywas attendingmedical school. Theyweremarried June 2, 1973,and remained togetheruntil June of 1983. During the course of the marriage, Harvey finished medica, school, completed his internship and. practiced medicine in at least threedifferent 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 Kalispellhospital. 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. Thebusiness has not yet opened,but will eventuallyprovide 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. Themedical-practice was valued at $127,200; $76,700 ofwhich is goodwill. In a well-rea.soned.and detailed decree, the District Judgevalued the marital estate as of thedate of dissolution at $254,374. After awardingNancy $48,000,the amount ofher 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 fromHarvey due September 15, 1985; 2) the unpaid principle balance on the family home, $46,200, which is tobe paid by Harvey; and 3) $10,000annualpayments 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 toNancy. In addition, maintenance payments from Harvey to Nancy were ordered as follows: 1) the monthly $568 payment on the family home throughDecember 15,1986;and 2) commencing, January 15, 1987, and continuing for five years from the date of the decree, $450 a monthmaintenance 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 awardingmaintenance toNancy Swanson. 3. In valuing the marital estate as of the d.ate of dissolutionrather 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 onby 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 standardof living the childwould have enjoyed had the parties remained married, the physical and emotional condition of the child, his educational needs and the financia.1resources and needs of the noncustodialparent. 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 resourcesas their only resourcesare those awarded Nancy in the dissolutiondecree. Sincehis father's income exceeds $100,000ayear,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 considerationof this fact. Findings of fact numbers five and 23 concern Colin's physicalproblems and Learning difficulties. Finding of fact 23 and conclusion of law number five refer to the special educational needs ofColin.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. Hewas 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 sportswhich 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 discretionby 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, fiveyears. Section 40-4-203(2), MCA is thusparticularly relevant: (2) The maintenance order shallbe 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, includingmaritalproperty 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 themarriage; (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 factorswas consideredby the trial judge. Harvey relies heavily on Nancy's testimony that intwo to three years she will be able to support herself with monies earned through opera.tionof 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 hermarria.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 ofValuation 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 dowe. Harvey argues that he should not be penalized for investinghismoney in retirement funds during the separation if Nancy is not penalized for investing her money in the greenhouse. However,Harvey has sourcesof income other thanthe retirement funds. Nancy's sole source of income outside her marriage is the greenhouse. We find no abuse of discretionby the trial judge. Goodwi11 Harvey Swanson also objects to the considerationby the trial judge of the goodwill associated with his medical practice. Harvey contends thathis practicehas no goodwill. The trial judge valued the goodwill of the practice at $76,700and included this amount in the marital estate. Once againwe findno abuse ofdiscretion. ThisCourt recognized the existence of the goodwill of a professional practice and included it in the marital estate in In re the Marriage ofHull (Mont.1986), 712P.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 thewife. 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, 712P.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.tionson the retirement funds. There is no evidence that Harvey intended to 1iquida.tethose funds to pay his marital obligation. The current value of thosefunds is not affected by taxes. Therefore,there isno 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 isvalid 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 aparty topay 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 commencementof 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 ofMilanovich (Mont. 1985)

## , 697 P.2d 927, 929, 42 St.Rep. 436, 439, quoting Talmage v. Gruss (1983),202Mont. 410,412, 658P.2d 4191420- The decision of the District Court is affirmed in all aspects.

We concur: