NO. 91-512 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

IN RE THE MARRIAGE OF 

JANET D. PEETZ, 

Petitioner 

and 

GARY R. PEETZ, 

Respondent 

and Appellant, 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gail M. Haviland, Worden, Thane & Haines, 

Missoula, Montana 

For Respondent: 

John D. Greef, Attorney at Law, 

Hamilton, Montana 

Filed: 

Submitted on Briefs: January 16, 1992 

Decided: April 21, 1992 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Petitioner Janet D. Peetz appeals from Findings of Fact and 

Conclusions of Law and Decree of Dissolution of the Fourth Judicial 

District Court, Ravalli County, which divided and distributed the 

marital estate, and ordered petitioner to purchase certain real 

property from respondent Gary R. Peetz, or sell the property. 

petitioner also argues that the court erred in the amount of 

maintenance granted, in not awarding her attorney fees, and in not 

ordering respondent to provide her with health insurance through 

his place of employment. 

We affirm. 

Petitioner raises several issues relating to the division of 

marital property before this Court. However, we will frame the 

issues as follows: 

1. Did the District Court err in the division of the marital 

estate? 

2. Did the District Court err in ordering petitioner to 

purchase certain real property from respondent within 15 days of 

entry of the decree, and ordering its sale if the petitioner did 

not purchase the property? 

3. Did the District Court err in not requiring respondent to 

provide petitioner with health insurance coverage through his place 

of employment? 

4. Did the District Court err in granting petitioner a 

maintenance award of $600 per month for a period of two years? 
5. Did the District Court err in not awarding petitioner her 

attorney fees? 

Petitioner and respondent had been together since October 

1981, and were married on August 12, 1983, in Reno, Nevada. At 

the time of the marriage, petitioner represented to respondent that 

she was 43 years old and wrote that age on her marriage 

application. Petitioner was actually 50 years old at the time of 

marriage. She had also represented to respondent that she could 

bear one or two children. Respondent discovered these facts for 

the first time just a few weeks before the parties separated. At 

the time of dissolution, petitioner was 58 years old. 

Prior to the marriage, petitioner received approximately 

$42,000 from a previous divorce settlement. She owed a tax 

obligation of approximately $3700, and an accountant bill of $1300. 

Both obligations were paid from the respondent's earnings after the 

marriage. 

In September 1982, petitioner purchased a small tract of land 

located near Victor for $85,000, and made down payment on the 

property of $20,000. On February 7, 1983, petitioner also made a 

prepayment on the land contract which came from a repayment of a 

$5000 loan, along with $6671 from a joint savings account, which 

money was deposited from respondent's earnings. 1n 1988, 

petitioner received a $14,000 inheritance from her mother. 

Respondent's estate at the time of the marriage included 

personal belongings, a vehicle, motorcycle, travel trailer, and a 

savings account from payroll contributions. Respondent worked as 

3 
a truck driver full time, with occasional layoffs, from the 

beginning of the marriage until 1986, when he suffered an 

industrial accident which resulted in a disc problem in his back 

that continues to restrict his motion and causes considerable pain. 

He received approximately $30,000 in workersf compensation benefits 

as result of the injury, and used $17,845 to pay off the remaining 

debt on the ranch in 1988, Other moneys respondent received during 

the marriage were a gift from his parents of $2500 which was placed 

in the partiesv joint savings account, and $3300 resulting from a 

sale of his motorcycle and travel trailer. The proceeds of this 

sale were also deposited in the partiesf savings account and used 

for living expenses. Respondent returned to work as a truck driver 

in May 1990 and had a monthly net earning capacity of approximately 

$2863. However, due to medical restrictions placed upon him, he is 

now limited to an average weekly wage of approximately $480 to 

$550. 

In December 1989, the parties sold the Victor property for 

$102,200 in cash. Using the proceeds of this sale, the parties 

purchased a small ranch with two houses on Coal Mine Lane near 

Darby. Currently petitioner derives some income from renting one 

of the houses. The property is held jointly by the parties. 

The parties accumulated several items of personal property 

which we need not go into in detail. Prior to and during the 

marriage, petitioner maintained a horse breeding business/hobby 

which operated at a loss. The parties accumulated 25 to 28 horses 

during the marriage. Seven of those horses were owned by 
petitioner at the time of the marriage, 14 were offspring of the 

original seven, and four were purchased by petitioner with her 

inheritance. The stipulated value of the horses is $15,000. 

Petitioner plans to continue operating her horse breeding operation 

after the dissolution of the marriage. 

Upon hearing the testimony of the parties and examining the 

evidence presented by both parties, the District Court issued its 

Findings of Fact and Conclusions of Law and Decree on June 18, 

1991. The court found that the total value of the marital estate 

was $152,602. The court also held that both parties contributed 

roughly equally to the marital estate and divided and distributed 

the assets as follows: 

WIFE 

1. reimbursement for down payment less $37,500 

$5,000 tax and accounting obligation 

paid by husband 

2. reimbursement for investment 5,000 

on February 7, 1983 

3. less credit to husband for 1/2 of - 8,839 

extra value of personal property 

distributed to Wife 

4. reimbursement for taxes and insur. 

paid since the separation of the parties 

5. 50% of the remaining equity 

Total - $33,661 plus 50% of the remaining sales proceeds. 

HUSBAND 

1. reimbursement for work comp $17,845 

prepayment 

2. reimbursement for investment on 6,671 

February 7, 1983 

3. plus credit for 1/2 of extra value 8,839 

of personal property distributed to 

wife 

4. reimbursement for taxes and insur. 

paid since the separation of the parties 

5. 50% of the remaining equity 

Total - $33,355 plus 50% of the remaining sales proceeds. 
Petitioner received $22,640 and respondent received $4962 in 

personal property. The court ordered respondent to pay petitioner 

monthly maintenance of $600 for two years. The court did not order 

respondent to provide health insurance, and did not award attorney 

fees. It is from this decree that petitioner appeals to this 

Court. 

I 

Did the District Court err in the division of the marital 

estate? 

Petitioner contends that the court's distribution of the 

marital estate was arbitrary, and lists several findings by the 

court she claims resulted in substantial injustice. Petitioner's 

specific contentions of error include: (1) crediting the 

respondent's lump sum workers' compensation settlement received 

during the marriage as an interest in real property and not 

including it as the marital estate; (2) crediting the respondent's 

interest in the real property for $6671; (3) crediting respondent 

for one-half value of the personal property distributed to 

petitioner to his interest in the real property; (4) deducting from 

the amount of money credited to petitioner as her interest in real 

property $5000 fortax and accounting obligations allegedly paid by 

respondent; (5) the distribution of the respondent's credit union 

account; and (6) allocating a satellite dish to petitioner as 

personal property because petitioner claims it is a fixture to the 

real property. In addition to the above listed contentions, 

petitioner claims that the court erred in its distribution of its 
marital estate because she brought substantially more property into 

the marriage than respondent and that the court did not consider 

the factors established by 5 40-4-202, MCA. 

Section 40-4-202, MCA, is the statute which establishes a 

guideline for the district courts to follow when distributing the 

assets of the marital estate. Section 40-4-202, MCA, reads, in 

pertinent part: 

(1) In a proceeding for dissolution of a marriage . . . or division of property following a decree of dissolution 

of marriage . . . the court, without regard to marital 

misconduct, shall . . . finally equitably apportion 

between the parties the property and assets belonging to 

either or both, however and whenever acquired and whether 

the title thereto is in the name of the husband or wife 

or both. 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. The court shall 

also consider the contribution or dissipation of value of 

the respective estates and the contribution of a spouse 

as a homemaker or to the family unit. In dividinq 

property accmired prior to the marriage . . . the court 

shall consider those contributions of the other spouse to 

the marriase, includinq: 

(b) the extent to which such contributions have 

facilitated the maintenance of this pronertv . . . . [Emphasis added.] 

Both parties have correctly stated this Court's standard of 

review over the District Courtls division of the marital estate: 

'$In dividing property in a marriage dissolution the 

district court has far reaching discretion and its 

judgment will not be altered without a showing of 

clear abuse of discretion. The test of 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 the Marriage of Gallinger (1986), 221 Mont. 463, 468-69, 719 

P.2d 777, 780, (quoting In Re the Marriage of Wessel (1986), 220 

Mont. 326, 333, 715 P.2d 45, 50). Thus, our role in reviewing the 

district court's findings of fact and conclusions of law in a 

decree of dissolution is a limited one. 

As we have stated previously, premarital property is a factor 

the court shall consider, however, the court is not required to 

restore the parties to their premarital status. In Re the Marriage 

of Tonne (l987), 226 Mont. 1, 4, 733 P.2d 1280, 1283. Both parties 

contributed significantly toward the marital estate. Petitioner 

brought into the marriage her equity in the Victor property, as 

well as miscellaneous personal property, an inheritance, and other 

cash. Respondent facilitated the maintenance of the marital estate 

and maintained the partiest lifestyle through depletion of his 

savings, his earnings as a truck driver, and his workerst 

compensation benefits. 

We agree that petitioner and respondent offer conflicting 

testimony as to who contributed what and when. In resolving 

conflicts in testimony, this Court defers to the district court 

because: 

The trial court sits in the best position to judge 

the credibility of the testimony proffered by the parties 

to a dissolution action. Because the District Court had 

the opportunity to observe the demeanor of the witnesses, 

we defer to its resolution of any conflicting evidence. 
In Re the Marriage of Porter (1991), 247 Mont. 395, 398, 807 P.2d 

192, 194. It appears -the District Court resolved most of the 

conflicting testimony in favor of respondent. Because the court 

observed the demeanor and character of the witnesses, and because 

there is substantial credible evidence to support the courtts 

findings, we hold that the District Court did not abuse its 

discretion in the distribution of the marital estate stated above. 

Petitioner also contends that the division of the property was 

inequitable because the court did not consider her age, occupation, 

respective employment history, health, and skills, as required by 

!j 40-4-202, MCA. Petitioner was 58 years old at time of trial. 

Prior to the marriage she worked as a waitress and as a secretary. 

Although she expressed concern over her lack of computer skills 

necessary for today's secretary, petitioner testified she could 

still work if required. Although petitioner testified she suffered 

from gallbladder problems, the court found that petitioner was in 

good health. The court held that petitioner's only source of 

income at the time of dissolution was rental income from one of the 

houses on the Darby property. We hold that the District Court 

properly considered the factors listed in 40-4-202, MCA, in 

distributing the marital asset, and did not abuse its discretion. 

I1 

 id the District Court err in ordering the petitioner to 

purchase the Darby property within 15 days of the decree and 

ordering its sale if the petitioner did not purchase the property? 
In the decree of dissolution, the court granted petitioner 

15 days to purchase the Darby property for $57,984. If she failed 

to do so, the parties were ordered to sell the property for 

$125,000, unless otherwise agreed upon. Petitioner argues that she 

could earn enough income from the breeding and sale of horses and 

rent to pay off the respondent Is share of the marital estate. The 

horse breeding business cost petitioner $550 per month. The rental 

income of the second house was $250. Apparently, the horse 

breeding business and rent cannot generate enough income to pay 

respondent's share of the marital estate. We hold that the 

District Court did not abuse its discretion in ordering the Darby 

property to be sold. 

I11 

Did the District Court err in not requiring the respondent to 

provide health insurance coverage for petitioner through his place 

of employment? 

Petitioner contends that due to her age and gallbladder 

problems, the court should have ordered respondent to provide 

health insurance coverage for her through his place of employment. 

We disagree. 

If the property is sold at $125,000, as ordered by the court, 

petitioner will receive approximately $62,653 from the sale of the 

real property, plus $22,640 in personal property. The division of 

the marital estate should provide petitioner with sufficient assets 

to provide for her health care. We hold that the District Court 

did not abuse its discretion. 
Did the District Court err in granting petitioner a 

maintenance award of $600 per month for a period of two years? 

Section 40-4-203(1) and (2) , MCA, states that the district 

court may grant maintenance for either spouse only if it finds that 

the spouse requesting 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 ; 

(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. 

This Court's standard of review on the issue of maintenance 

depends on whether the district court has properly considered the 

factors listed in 5 40-4-203, MCA, and whether there is substantial 

credible evidence to support the findings. In Re the Marriage of 
Cannon (1986), 223 Mont. 42, 44, 723 P.2d 951, 953. The District 

Court awarded petitioner maintenance of $600 a month for two years. 

Petitioner testified that she could return to clerical work, but 

voiced concerns about her lack of skill in computers. In addition, 

she stated she could be self-supporting in three to four years. 

The District Court awarded maintenance for two years, which it 

concluded should be a sufficient amount of time for her to achieve 

self-support through education, training, or other employment. We 

hold the District Court properly considered the factors in 

§ 40-4-203, MCA, and there was substantial credible evidence to 

support the amount of maintenance. 

Did the District Court err not awarding petitioner her 

attorney fees? 

Section 40-4-110, MCA, permits the district court to order the 

parties to pay attorney fees in dissolution proceedings. It 

states: 

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 district court is given considerable discretion in the 

award of attorney fees. Gallinqer, 729 P.2d at 782. Thus, we will 

not overturn a district court's refusal to award attorney fees 
absent an abuse of discretion. Gallinqer, 719 P.2d at 783. In 

this instance, petitioner has adequate resources from the division 

of the marital estate and award of maintenance to pay her own 

attorney fees. We hold that the District Court did not abuse its 

discretion in not ordering respondent to pay attorney fees. 

We affirm. 

We concur: