No. 92-319 

IN THE SUPREME COURT OF THE STATE OF MONT 

1993 

IN RE THE MARRIAGE OF 

JAMES S. SPENCE, 

Petitioner and Appellant, 

and 

BARBARA L. SPENCE, 

Respondent and Cross-Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Ed McLean, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Christopher Daly, Attorney at Law, 

Missoula, Montana 

For Respondent: 

Gail M. Haviland, Worden, Thane 

& Haines, Missoula, Montana 

Submitted on Briefs: December 3, 1992 

Decided: March 4, 1993 

Filed: 
Justice William E. Hunt, Sr., delivered the opinion of the 

Court. 

Appellant James S. Spence appeals from an order of the Fourth 

Judicial District Court, Missoula County, distributing certain 

pension benefits, proceeds from out-of-state property, and an award 

of maintenance. Respondent Barbara L. Spence cross-appeals the 

order, alleging the court erred in its distribution of the marital 

estate and erred in failing to award her attorney fees and costs. 

We affirm in part and remand. 

James raises five issues on appeal while Barbara cross-appeals 

with four issues. Because the issues deal primarily with the 

distribution of the marital estate, we rephrase the issues as 

follows: 

1. Did the District Court err in its distribution of the 

marital estate? 

2. Did the District Court err in ordering $300 in temporary 

maintenance? 

3. Did the District Court err in awarding Barbara $350 per 

month in maintenance for three years? 

4. Did the District Court err in failing to award Barbara 

attorney fees and costs? 

James and Barbara were married on May 20, 1977. At the time 

of the hearing, James was 65 years old and Barbara was 43 years 

old. James began working for Pacific Northwest Bell and its 

successor corporation, U.S. West Communications, in 1947 as a 

lineman, and continued working in that position for approximately 
40 years until his retirement in 1988. Before taxes, James has a 

monthly income of approximately $1800 from social security and his 

U.S. West pension. During his employment, James participated in a 

savings plan and an Employee Stock ownership Plan (ESOP). However, 

he did not have access to those funds until his retirement. James 

suffers from diabetes and high blood pressure, and because of his 

age and health problems, is unable to work. 

Barbara worked as a nurses' aide at the Shrinerls Hospital in 

Spokane prior to marrying James. ~uring the marriage, Barbara 

earned an Associate of Arts degree in liberal arts and another 

Associate of Arts degree in hearing impaired services. Barbara 

worked as a deaf interpreter, and also obtained some computer 

skills at the University of Montana in Missoula. Throughout most 

of the marriage, Barbara maintained the household. From 1988 

through 1990, Barbara earned between $3000 and $9000 a year. She 

currently lives in Spokane with her brother and is unemployed, with 

the exception of performing occasional odd jobs. 

The parties separated an July 10, 1991. On July 29, 1991, 

Barbara filed a petition for dissolution in Spokane County, 

Washington. The summons and petition were served on James in 

Missoula on August 12, 1991. On August 7, 1992, James filed for 

dissolution in Missoula County. The Superior Court of Washington 

dismissed the pending action and changed jurisdiction to Missoula 

County. 

On February 12, 1992, the District Court orally ordered James 

to pay $300 in a one time temporary maintenance award under the 
belief that the matter would be decided before the next maintenance 

check was due. On May 5, 1992, Barbara petitioned the court for 

clarification of the order. The court ordered James to pay 

maintenance until the final decree was issued. This resulted in 

James having to pay $1200 in back maintenance. 

Trial was held on the matter on March 11 and 18, 1992. On 

May 29, 1992, the District Court issued its findings of fact, 

conclusions of law, and order. On June 19, 1992, James filed his 

notice of appeal from the court's decree and the order for 

temporary maintenance. 

I. 

Did the District Court err in its distribution of the marital 

estate? 

This Court has stated that our standard of review relating to 

factual findings of the district court with regard to the division 

of marital property is whether the district court's findings are 

clearly erroneous. In re Marriage of Danelson (Mont. 1992) , 833 

P.2d 215, 219, 49 St. Rep. 597, 599. With regard to this Court's 

review of conclusions of law made by the district court, we have 

stated that ""[wle are not bound by the lower court's conclusions 

and remain free to reach our own."" Danelson, 833 P.2d at 219-20 

(quoting Schaub v. Vita Rich Dairy (1989), 236 Mont. 389, 391, 770 

P.2d 522, 523). In adopting these principles of review in division 

of the marital estate, we have stated that: 

[Tlhis Court is not in any way discounting the 

considerable discretionary power that must be exercised 

by district courts in these cases. The courts are 
obligated to fashion a distribution which is equitable to 

each party under the circumstances. The courts, working 

in equity, must seek a fair distribution of the marital 

property using reasonable judgment and relying on common 

sense. Obtaining this equitable distribution will at 

times require the lower court to engage in discretionary 

action which cannot be accurately categorized as either 

a finding of fact or a conclusion of law. These 

discretionary judgments made by the trial court are 

presumed to be correct and will not be disturbed by this 

Court absent an abuse of discretion by the lower court. 

[Citation omitted.] 

Danelson, 833 P.2d at 220. 

In this instance, James argues that the District Court erred 

in determining that the ESOP stock was part of the marital estate, 

that the court misstated the total value of the ESOP stock, and 

that it miscalculated when dividing the stock between the parties. 

Barbara argues that the court erred in distributing the ESOP stock 

proceeds which were calculated by a formula that measured the 

length of the stock option plan over 40 years, instead of from 

1976. Barbara also contends that the court's valuation of the 

stock is erroneous. 

We must first answer the question of whether the ESOP stock 

was properly included in the marital estate. Section 40-4-202(1), 

MCA, provides that when dividing a marital estate, the district 

court shall 'Iequitably apportion between the parties the property 

and assets belonging to either or both, however and whenever 

acquired . . . . In addition, the statute requires that the 

district court consider contributions of the other spouse to the 

marriage when dividing the marital estate, which includes the 

nonmonetary contributions of a homemaker and the extent to which 
such contributions have facilitated the maintenance of the 

property. Section 40-4-202(1) (a) and (b), MCA. We have stated 

that retirement benefits are properly included within the marital 

estate and are subject to division. In re ~arriage of Holston 

(19831, 205 Mont. 470, 474, 668 P.2d 1048, 1050. 

In its findings of fact, the court ruled that during most of 

the partiesv 14-year marriage Barbara maintained the home, her 

contributions as a homemaker contributed to the marital estate, and 

the stock was earned in a community property state. The domestic 

services provided by Barbara enabled James to continue working at 

his place of employment and contribute to his savings plans. 

Moreover, if James had passed away before receiving the stock, the 

benefits would have gone to Barbara. With the exception of the 

purchase of some lithographs, James used proceeds from the sale of 

stock to purchase jointly held marital property. Therefore, we 

conclude that the District Court properly included the stock as a 

marital asset. 

Even though the stock was considered part of the marital 

estate, the District Court erred in the valuation and distribution 

of the stock. The court, in its conclusions, valued the total sale 

of the stock at $49,109. After the vesting of the retirement plans 

in 1988, James sold between $16,000 and $19,000 to purchase a 

pickup truck which was held jointly by the parties. In 1990, the 

parties sold additional stock for approximately $12,000 to $13,000 

and used the proceeds to make a down payment on a home in Missoula 

and to purchase furniture for the home. After the date of 
separation, but prior to the dissolution, James sold the remaining 

stock for $30,109 and used $10,500 for the purchase of 35 

lithographs. Although the total value of the stock was apparently 

not stated by the parties, testimony concerning the proceeds from 

the sale of the stock leads to the conclusion that the District 

Court failed to take into account stock sold for the down payment 

on the home and the furniture when valuing the estate. We remand 

to the ~istrict Court for reconsideration of the value and 

distribution of the stock. Any additional concerns the parties may 

have relating to the distribution of the stock may be raised with 

the District Court. 

James also contends that the District Court should not have 

included the Idaho property in the marital estate. Both parties 

argue that the division of the proceeds resulting from the sale of 

the property is incorrect. James argues that the property was 

purchased on a ten-year contract in 1970, seven years prior to the 

marriage, the property was paid off within three years of the 

marriage, and only taxes were paid on the property from 1980 to 

1991. James declares that although payments came out of the 

parties1 joint checking account, no evidence was produced by 

Barbara to show that she contributed to that account. Citing In re 

Marriage of Scott (Mont. 1992), 833 P.2d 710, 49 St. Rep. 634, 

James contends that property division in a Montana dissolution is 

not governed by community property laws of another state, 

We reiterate that to divide property acquired prior to 

entering into a marriage contract, the District Court must examine 
the factors set out in 5 40-4-201(1) (a) and (b), MCA. We have 

stated that in Montana, property division need not be equal, but 

instead, must be equitable. Scott, 833 P.2d at 712. James and 

Barbara conveyed a one-half interest in the property to James' son 

and daughter-in-law. The owners later sold their interest in the 

property. Jamesf and Barbara's share was $9657. Barbara testified 

that they were paying on the property prior to the marriage. 

Barbara further testified that they had considered the property as 

a place to retire. The record shows that Barbara's name appears on 

a 1977 warranty deed that was executed to convey interest in the 

property to James' son and daughter-in-law. Barbara signed the 

buy-sell agreement as seller of the property. In addition. she 

testified that the monthly payments and taxes on the property were 

paid out of the parties1 joint checking account. That statement 

was not contradicted by James. Therefore, it was proper for the 

District Court to include the Idaho property in the marital estate. 

Finally, both Barbara and James complain that the District 

Court erred in its calculation when distributing the proceeds of 

the sale of the Idaho property. The court awarded Barbara 

two-thirds of the one-half interest ($9657) of the proceeds from 

the sale of the property. ~ccording to the ~istrict Court, 

Barbara's share was $3235. We remand to the District Court to 

correct this mathematical error. With the exception of the 

mathematical error, we hold that the District Court equitably 

divided the Idaho property between the parties. 
11. 

Did the District Court err in ordering a $300 temporary 

maintenance award? 

On February 12, 1992, the District Court held a hearing to 

determine whether Barbara should be entitled to temporary 

maintenance. The court orally ordered James to pay a one time 

maintenance award of $300, under the belief that the case would be 

decided the following month. The court minutes stated that James 

was responsible for a $300 monthly temporary maintenance payment. 

James paid the temporary maintenance in February, but did not pay 

any maintenance during the remaining months preceding the court's 

decision. On May 5, 1992, Barbara filed a motion requesting that 

the court clarify its order regarding maintenance. On May 20, 

1992, the District Court ordered James to pay $300 a month until 

the court rendered a decision. James appeals this order. 

We previously stated that 5 40-4-121(7)(a) and (b), MCA, 

grants considerable authority to make a temporary maintenance award 

retroactive. "It was well within the District Court's power after 

hearing on the matter of . . . maintenance, to make the order 

retroactive." In re Marriage of Revious (1987), 226 Mont. 304, 

312, 735 P.2d 301, 306. 

A hearing was conducted by the court regarding temporary 

maintenance and it found that there should be a $300 payment each 

month from February. We hold that the District Court did not err 

in ordering retroactive temporary maintenance payments. 
111. 

Did the ~istrict Court err in awarding Barbara $350 per month 

in maintenance for three years? 

We have stated in the past that our standard of review to 

determine whether the award of maintenance is proper is whether the 

district courtls findings of fact are clearly erroneous. In re 

Marriage of Eschenbacher and Crepeau (Mont. 1992), 831 P.2d 1353, 

49 St. Rep. 393. The district court may award maintenance after 

the marital property has been equitably distributed and the court 

has properly applied the criteria of § 40-4-203, MCA. Also, the 

district court may grant an award of maintenance for either spouse 

if the court finds that the spouse requesting maintenance "lacks 

sufficient property to provide for his reasonable needst1 and "is 

unable to support himself through appropriate employment . . . . IS 

Section 40-4-203 (1) (a) and (b) , MCA. 

In its findings, the court believed that Barbara had not 

actively sought employment and her only income came from temporary 

maintenance and odd jobs. The court stated that for Barbara to be 

employed as a deaf interpreter she would need to take additional 

classes. Her expenses were $1075 per month, not including the cost 

of any further education. If she earned either minimum wage, or 

the wage she received at her previous employment, neither would 

cover her current expenses. The court considered her age, length 

of marriage, her standard of living during the marriage, her 

physical and emotional condition, and James1 ability to meet his 

needs while assisting Barbara for a reasonable period of time. As 
a result of these findings, the court concluded that Barbara was 

eligible for maintenance of $350 a month for three years. The 

court properly considered the factors set out in 5 40-4-203(1), 

MCA. We hold that the District Court did not err in the award of 

maintenance. 

IV 

Did the District Court err in failing to award Barbara 

attorney fees and costs? 

Barbara claims that the District Court erred in not awarding 

her attorney fees. Section 40-4-110, MCA, states that the district 

court may, after considering the financial resources of the 

parties, order a party to pay reasonable attorney fees and costs. 

t his is a permissive, not a mandatory statute. We have stated that 

absent an abuse of discretion, this Court will not overturn the 

district court's decision denying attorney fees. In re Marriage of 

Manus (1987), 225 Mont. 457, 733 P.2d 1275. It is clear from the 

District Court's extensive findings that the financial resources of 

the parties were considered and Barbara has a sufficient cash award 

to pay her attorney fees. We hold that the District Court did not 

abuse its discretion in failing to award Barbara attorney fees. 

Affirmed in part and remanded to the District Court for 

reconsideration of the value and distribution of the stock and to 

correct a mathematical error regarding the distribution of the 

proceeds from the sale of the Idaho property. 

I 
We concur: 

i 
March 4, 1993 

CERTIFICATE OF SERVICE 

1 hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Chris topher Daly 

Attorney at Law 

101 E. Broadway, Ste. 200 

Missoula, MT 59802 

Gail Haviland 

Worden, Thane & Haines 

P.0. Box 4747 

Missoula, MT 598G6 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE QF MONTANA