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: ForAppellant: 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 pensionbenefits,proceeds fromout-of-stateproperty,and anaward of maintenance. Respondent Barbara L. 

### Spence cross-appeals the order, alleging the court erred in its distributionof themarital estate and erred in failing to award her attorney fees and costs. We affirm in part and remand. Jamesraises five issues on appealwhileBarbara 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 inmaintenance 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 approximately40 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,Jamesparticipated in 

### a savingsplan and anEmployee Stock ownershipPlan (ESOP). However, he did not have accessto those fundsuntil 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 ShrinerlsHospital in Spokane prior to marrying James. ~uringthe 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 Spokanewithher brother and isunemployed,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 orderedJames to pay $300 in a one time temporary maintenance award under 

### the

### belief that thematterwould be decided before thenextmaintenance 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 themarital 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 Schaubv. Vita Rich Dairy (1989), 236Mont. 389, 391, 770 P.2d 522, 523). 

### Inadopting theseprinciples of review indivision of themarital estate, we have stated that: [Tlhis Court is not in any way discounting the considerable discretionarypower that must be exercised by district courts in these cases. The courts areobligatedto fashionadistribution which is equitable to each party under the circumstances. The courts,working in equity,must seek a fair distribution of themarital property using reasonable judgment and relying on common sense. Obtaining this equitable distribution will at times require the lower court to engage indiscretionary 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 andwill not be disturbed by this Court absent an abuse of discretion by the lower court.

[Citationomitted.] Danelson, 833 P.2d at 220. In this instance, James argues that the District Court erred indetermining that the ESOP stockwas part of themarital estate, that the court misstated the total value of the ESOP stock, and that itmiscalculated when dividing the stockbetween theparties. 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 themarital 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 whichsuch 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 themarital 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 contributionsas ahomemaker contributedto themarital estate,and the stockwas earned in a communityproperty 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 Jameshad passed awaybefore receiving the stock,the benefits would have gone to Barbara. With the exception of the purchase of some lithographs,Jamesused 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 stockat $49,109. After thevesting of the retirementplans 

### 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 forapproximately $12,000 to $13,000 and used the proceeds tomake a 

### downpayment on ahome inMissoula and to purchase furniture for the home. After the date ofseparation,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 ~istrictCourt for reconsideration 

### of the value and distributionof the stock. Any additional concerns thepartiesmay 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, sevenyearsprior 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 

### showthat shecontributedto that 

### account. Citing 

### Inre 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 communityproperty laws of another state, We reiterate that to divide property acquired prior to entering into amarriage contract,

### the District Court must examinethe 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. Jamesfand Barbara's share was $9657. Barbara testified that they 

### were paying on the property prior to the marriage. Barbara furthertestified that they had considered the property as

aplace to retire. The record shows that Barbara'sname 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 themonthly 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 themarital 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. ~ccordingto the ~istrictCourt, 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 casewould be decided the followingmonth. The courtminutes stated that James was responsible for a $300monthly temporary maintenance payment. Jamespaid 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 considerableauthority to make a temporary maintenanceaward retroactive. "It was well within the DistrictCourt'spower 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 $350per month inmaintenance for three years? We have stated in the past that our standard of review to determine whether the award ofmaintenance isproper iswhether the district courtlsfindings 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 courtmay 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 supporthimself 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 expenseswere $1075permonth,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 James1ability to meet his needswhile assisting Barbara for a reasonableperiod of time. Asa 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 thedistrict court may, after considering the financial resources of the parties, order a party to pay reasonable attorney fees and costs. 

### t his is apermissive, not 

### amandatory statute. We have stated that absent an abuse of discretion, this Court will not overturn the districtcourt'sdecision denying attorney fees. 

### InreMarriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. It is clear from the DistrictCourt'sextensive findingsthat the financialresourcesof theparties were consideredand Barbarahas a sufficientcashaward 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.

IWe concur: iMarch4, 1993 CERTIFICATEOFSERVICE 1herebycertifythat thefollowingorderwassentbyUnited Statesmail,prepaid, tothe followingnamed:

ChristopherDaly AttorneyatLaw 101E.Broadway,Ste.200 Missoula,

### MT 59802 GailHaviland Worden,Thane&Haines P.0. Box4747 Missoula,MT 598G6 

### EDSMITH 

### CLERKOF

### THESUPREMECOURT STATEQFMONTANA